A Guardianship is a probate court proceeding in which an individual is deemed incapacitated and a fiduciary, a Guardian, is appointed to make personal, health and residency decisions for the incapacitated adult. A Conservatorship is a probate court proceeding in which an individual is deemed incapacitated and a fiduciary, a Conservator, is appointed to manage the incapacitated adult’s assets and financial affairs. The incapacity may be due to mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs or alcohol, or other causes.
A Guardianship and Conservatorship proceeding is a lengthy process. Per South Carolina law, the court must appoint the alleged incapacitated an attorney and guardian ad litem to protect the alleged incapacitated person’s interests. In addition, the court must order two designated examiners to submit written reports with a recommendation as to whether or not the individual is incapacitated. The court must hold a hearing, with notice being given to the alleged incapacitated person’s closest family members. At the hearing the court will take testimony from the proposed Guardian and Conservator, the family members, and often times a physician and a licensed social worker. Following the hearing, the court will then issue an order declaring the individual incapacitated and appointing a Guardian and Conservator.
The Guardian is responsible for making decisions concerning the incapacitated person’s health care, living arrangements, as well as the individual’s care, comfort and maintenance. The Guardian must file yearly reports regarding the condition of the incapacitated person.
The Conservator manages financial affairs and property for an incapacitated person. The Conservator has a fiduciary duty to the party and must manage and protect assets and pay all legitimate bills for the person’s care and welfare. The conservator must report periodically to the court about the status of the incapacitated person’s assets, income and expenditures. No expenditures can occur without written Court order.