Elder Law & Conservator / Guardian Actions
It can be very hard to know how best to respond when parents age. Dementia, Alzheimer’s or a sudden incapacitating illness can all result in parents who are unable to properly care for themselves. As a loved one, you want to help, but may not know how to go about such a process, especially given the legal complexities involved. To find out more about guardianship and conservatorship actions in Greenville, South Carolina, keep reading.
First things first, guardianships and conservatorships are two independent and separate actions aimed at protecting incapacitated individuals. Before diving further into the process, it would help to understand what incapacity is. In South Carolina, an incapacitated person is someone who is suffering from some kind of impairment. This can include mental or physical illness, mental or physical disability, incapacity due to old age, sudden illness, or even drug abuse.
Incapacity refers to the inability of someone to make responsible and reasonable decisions about his or her well-being. It’s important to understand that this is different than a person who simply makes bad decisions. You may disagree with a person’s choices, but irresponsibility does not qualify as incapacity. Instead, incapacity happens when a person is completely unable to manage his or her personal affairs, exposing the person to a real risk of harm, whether from a health or financial perspective. In these cases, loved ones can step in and help protect the incapacitated person from further harm.
What is a guardian?
A guardian refers to someone appointed by a court to manage the health care decisions for an incapacitated person. Though guardians can be appointed for minors, in cases where their parents have either died or been deemed unfit, this is a separate action than those involving incapacitated adults. These actions occur in South Carolina probate courts.
What is a conservator?
A conservator is someone appointed by a court to manage the money and personal property for the benefit of an incapacitated person. Conservators manage the financial aspects of a person’s life that is been found unable to manage these matters on their own.
What’s the difference between guardianship and conservatorship action?
Though the two actions appear similar, it’s important to understand that legally they are two separate matters. Conservators are appointed to make decisions about financial issues, while guardians are appointed to make personal, often health-related decisions. Conservators deal with financial matters, while guardians make non-financial decisions.
Who needs a guardian/conservator?
Incapacitated adults who are unable to make decisions for themselves, whether financial or health-related, are good candidates for guardianship/conservatorship. The same applies to adults who lack a power of attorney and thus have no other legal way of appointing someone to take legal action on their behalf. Those with valid powers of attorney have already named guardians/conservators and are not typically subjected to such actions.
How does the guardianship/conservatorship action work?
Loved ones interested in gaining legal control over an incapacitated person must start by filing a Petition with their local court. This petition explains that the incapacitated adult is unable to manage his or her financial affairs or make health care decisions. A court will then hold a hearing on the subject, allowing your Greenville guardianship/conservatorship attorney to speak on your behalf. The law also requires the incapacitated person to be represented by a lawyer, ensuring that his or her best interests are looked after.
Priority for guardians/conservators
In South Carolina, the law says that there is a priority for who will be appointed as an incapacitated adult’s guardian/conservator. This priority is followed unless the court is given a compelling reason to appoint someone else. The first priority is given to anyone chosen by the incapacitated person to serve as guardian/conservator. Next, are those who were given a valid power of attorney by the incapacitated person. After this, the spouse of the incapacitated person, followed by adult children, parents, other relatives and finally, caregivers.
How long do guardianships/conservatorships last?
It’s important to understand that once a person is named conservator or guardian, this designation does not last forever. If and when a person is found to no longer be suffering incapacity, the guardianship/conservatorship will end. For those who continue to be incapacitated for long periods of time, court-appointed guardians and conservators will still be required to check in periodically with the South Carolina courts, at least once a year to ensure that incapacitated person is continuing to receive proper care.
How can an attorney help?
A Greenville, South Carolina attorney can be a huge help in navigating the difficult guardianship/conservatorship process. A skilled lawyer can draft the necessary summons and petitions, take care of serving the interested parties and prepare briefs explaining the alleged incapacity. Your lawyer can also serve as a source of information and comfort, guiding you through an emotionally trying and confusing process, explaining what steps are required and what you need to do to be fully prepared.