Conservatorships & Guardianships

Let us help you or your loved one navigate through this difficult process. Our clients often come to us just trying to understand what these terms mean, when and why they are necessary, and how we can help. We strongly urge you to take advantage of a consult so we can understand your unique circumstances, but we have attempted to answer some of the most common questions on our blog and in the section below:

What is a guardianship?

A guardianship is court authority to make decisions for another person (often called a "ward"). People often think of guardianship over a minor when they hear this term (please see our Family Court team if you were looking for that information); however, in this section, we are referring to guardianship over an incapacitated adult who cannot care for themselves due to some illness or other mental deficiency. The most common example is someone who has dementia or Alzheimer's disease and can no longer make decisions for themselves. Other examples include people who have a disability or have suffered a brain injury and are not able to act in their own best interest. A guardian makes decisions concerning where the person will live and their health care. A court appointed guardian must make yearly reports to the Probate Court regarding the condition of the incapacitated person.

What is a conservator?

Much like a guardian, a conservator is also a court appointed person who handles the affairs of someone who is unable to do so on their own; however, a conservator handles financial matters like managing and protecting assets, paying bills, and working with the guardian to pay for health care. A conservator also reports periodically to the court about income and expenses and is often required to create a monthly budget for the ward.

How is a conservatorship or guardianship established?

The process begins when someone, usually a family member or interested party, petitioning the Probate Court to establish a conservatorship and/or guardianship. The court schedules a hearing to determine whether the person, over whom the guardianship is sought, is legally incapacitated. Medical evidence of incapacity is required, and the court will provide a guardian ad litem to represent the interest of the alleged incapacitated party. If the judge decides that the person is legally incapacitated and in need of protection, the court may appoint a guardian or conservator or both. The court then supervises the conservator and/or guardian.

Do I have to have an attorney?

An attorney is not necessary in every case; however, it's wise to consult with an attorney before beginning the process so you can make an informed decision. It's worth the consult fee to make sure you proceed correctly.

I HAVE been named as a Power of Attorney. Do I still need to become a conservator or guardian?

If you are lucky, the answer is no. A properly drafted and executed Health Care Power of Attorney will often eliminate the need for a guardian. Similarly, a properly drafted and executed General Durable Power of Attorney will often eliminate the need for a conservator. (Reminder: If you do not have these documents in place for yourself, please consult our Estate Planning team and take care of this immediately). That being said, situations do arise where court involvement is necessary. At times, it is also necessary to use this process to remove someone who is serving as a power of attorney but is not acting in the best interest of the incapacitated.

What is a fiduciary?

Generally, a fiduciary is someone to whom property or power is entrusted for the benefit of another. For example, a Trustee is a fiduciary for the beneficiaries of the trust. A Personal Representative is the fiduciary for the beneficiaries of an estate. A conservator or guardian is a fiduciary for their ward. Being a fiduciary comes with many responsibilities so it's very important to understand your obligations before agreeing to become a fiduciary or proceeding in court.

Who has priority to serve as a conservator or guardian?

South Carolina law dictates who has priority to serve, and preference will always be given to the person chosen by the ward. To the extent possible, the ward may state his or her preference during the process. Preference will also be given to a party the ward has chosen in writing through execution of a power of attorney. If the ward has not or can no longer express a preference, a spouse has the highest priority, followed by the adult children of the ward. If there is not a suitable family member to serve or the family is in disagreement, the court may appoint a neutral person who is unrelated. Our firm often serves in this capacity, and we also help families and wards locate suitable conservators and guardians when needed.

Where can I learn more?

If you or a loved one may be in need of a conservator or guardian, we recommend several resources:

Get a consult with a qualified probate attorney that can answer all of your case specific questions. Our firm currently offers a one-hour consult for only eighty dollars. This can be handled in person or by phone.
Watch the Self-Help Videos for both conservatorship and guardianship on the South Carolina Bar website.
Check out our Probate Blog as we often cover topics of interest for all fiduciaries.
Read the Consumer Financial Protection Bureau's guide to serving as a conservator. We've made it available for you to read and download here.

It's normal to have a lot of questions about conservators and guardians. We can help. Please call our team or schedule an appointment. We look forward to meeting you and becoming your Attorneys For Life.

Subcategories of Probate

Conservatorships & Guardianships

Ever day, we help families dealing with incapacity, aging parents, dementia and Alzheimer's disease. Let us help you or your loved one navigate through this difficult process.

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