Baby boomers beware . . . there’s a new custody battle on the rise and it has nothing to do with family court, divorce or minor children. In fact, the newest custody battle is over YOU and it’s occurring statewide in our Probate Courts.
As many of us age, we simply hope someone will be there to help care for us in our final years.
Do you know who will manage your health and finances if you’re unable to do so?
So, how do we avoid anyone fighting over us in court? Less than one-third (1/3) of our population has executed a Health Care Power of Attorney or General Durable Power of Attorney to name an agent to act in our place. The reasons why vary from person to person but we’ve found for the most part it’s just wishful thinking that we will die peacefully in our sleep without facing the hurdles of aging including dementia and or Alzheimer’s Disease. Statistics; however, tell a different story. One in 3 seniors will die with Alzheimer’s disease or another dementia. One in 8 people over age 65 in the United States has Alzheimer’s disease now, and nearly 50% over age 85 are suffering. In 2014, an estimated 5.2 million people in the United States were living with Alzheimer’s disease. Sobering, isn’t it?
What’s worse is that as a whole, we’re completely unprepared and by the time we realize it (or our family does), it’s often too late because we’ve lost the ability to legally execute these documents. For more information on obtaining these documents, please contact our office for a completely free (no obligation or sales pitch) consultation. And if you’re reading this because you already have a parent in this situation, please make sure to read our other posts on Guardians and Conservators to better understand the Court’s role. Still have questions? Post them here or call/text our office at 843-871-9500. We’d love to hear from you.
Has a loved one recently been diagnosed with dementia or Alzheimer’s disease?
Here’s what you need to know now:
STEP ONE: If you’re concerned as to whether or not the individual in question is capable of making rational, clear-headed decisions about their health care, daily living decisions or placement decisions, you first need to determine if they’ve executed a Health Care POA (Power of Attorney). This document allows an individual to decide for his or her self who can serve as their agent in handling their medical related issues if and when they are unable to do so on their own. This document should not be confused with a General Power of Attorney which addresses banking and other transactional business (and is discussed in other posts on this blog). If your loved one has not executed a Health Care POA, proceed to STEP TWO. If they have, please congratulate them on being prepared as they’ve just saved themselves (and you) a major hassle. Only proceed to STEP TWO if the person they nominated is unable or unwilling to serve or you have reason to believe they are taking advantage of their powers.
STEP TWO: Before approaching the Probate Court or your attorney to begin the Guardianship process, it’s first wise to consult with the loved ones medical provider and personal attorney to determine whether or not it’s too late to have them execute a Health Care POA. Remember, a diagnosis doesn’t mean the person is already fully incapacitated and these professionals can help determine if costly court intervention can be avoided by having a capacity examination and simultaneously executing documents whereby the loved one makes their own choice as to who should make their decisions in the future. This can also prove useful if the loved one needs to revoke a previously executed document because the person they named (their agent) is no longer acting in their best interest.
STEP THREE: Often times referred to as and confused with a “conservatorship,” guardianship is needed when a someone who is incapacitated due to age or disability has not named a Health Care Power of Attorney to address their health care needs. If your loved one didn’t take this step or is no longer able to do so, you must petition the court for guardianship. This process often takes several months and requires that two (2) examiners find the person is no longer able to make their own decisions. Following that ruling, the court will then transfer duties such as daily medical care, living arrangements, and medical decision-making to the petitioner. This process can be timely and in some cases costly, especially if family members disagree as to whether or not a guardianship is necessary or disagree as to who should be making such decisions.
Here are a few common questions we are asked about the process:
The following is a list of possible duties of a guardian:
To the extent possible, the guardian should seek feedback from the ward when making these decisions.
If you need further information related to guardianships, please refer to our blog or contact our office to set up an office or phone consultation. We have a dedicated team of attorneys who work regularly in this area and can help guide you through this difficult process.
A Conservator is a court appointed person who handles the affairs of someone who is unable to do so on their own. In the Probate Court, a Conservator can be appointed for a minor or an adult.
Let’s look at a few examples of why someone might need a Conservator:
Before going further, if you haven’t read our post on Guardians, you might read that first as the two are often confused. While a Guardian manages health care decisions, a Conservator handles financial matters such as managing and protecting assets, paying all legitimate bills and working with the Guardian to pay for the care of the ward. A Conservatorship is established by someone (usually a family member or interested party) filing a Summons & Petition in the Probate Court to be named Conservator. The Court schedules a hearing to determine whether the person over whom the Conservatorship 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 (personal decision making) or Conservator (financial decision making) or both. The Court then supervises the Conservator and/or Guardian. The Conservator also reports periodically to the court about income and expenses and is often required to create a monthly budget for their ward.
Sometimes, this process can be avoided if the person has executed a General Durable Power of Attorney that names someone who can manage their affairs. Unfortunately, less than 1/3 of our population has taken the time to plan ahead and have this document in place. That being said, situations do arise where court involvement is necessary even when someone has a Power of Attorney in place. The process can also be used to remove someone who is serving as a Power of Attorney but who isn’t acting in the best interest of someone who is incapacitated.
Just like a Guardian, a Conservator is a type of fiduciary. 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 both responsibilities and liabilities so it’s very important to understand your obligations before agreeing to become a fiduciary. If you are considering becoming a Conservator, please search our website and this blog for more information on your responsibilities and how we can help.
As explained in a previous post, an estate must be opened in the county of domicile of the decedent. While people may have many residences, each of us only has one domicile.
The court will determine the domicile of the decedent by looking at the following:
In the majority of cases, determining domicile is not a problem. Even those who are fortunate enough to have vacation homes or live in more than one state usually have documentation that establishes where they considered their primary residence, or domicile to be.
This does, however become a big issue in two situations that are more common than many might realize:
INCAPACITY – If someone passes away after living in a nursing home, there is often confusion about in which county the estate should be opened. Is it the county where they originally lived or the county where they were in a long term care facility? The answer to that questions is determined by the decedent’s intent when they moved. For example, if someone is diagnosed with early Alzheimer’s and decides, on their own, to move into an assisted living facility where they later pass away then it is likely that they changed their domicile from the county where they originally resided to the county where they passed away at the time of the move. In a second example, if an elderly person becomes incapacitated due to dementia or Alzheimer’s and they are placed in a care facility with participating in the decision, then it is likely that their domicile does not change. The issue her is intent. Someone must have the intent to change their domicile and therefore anyone who becomes incapacitated for any reason is considered to be domiciled in the county where they resided at the time the incapacity occurred. An example of this rule can be found in the ruling of
MILITARY – Military personnel also provide a unique domicile issue. Again, the court will focus on intent. The general rule is that a member of the military, regardless of where they are stationed, is considered domiciled in the county where they resided at the time they enlisted. This rule is easily overcome by actions such as purchasing a home away from the military base or marrying someone in a location where they are stationed and expressing an intent for that location to be their “home.”
The issue of where the estate is opened is important to the court because it is their responsibility to ensure that they have jurisdiction over the estate. If an estate is opened in the wrong county, creditor’s could claim they did not have proper notice and interested parties may unknowingly open a second estate in the other county. If everyone applies the rules of domicile correctly, then all parties will know where to look when trying to find someone’s estate.
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.