GUARDIANSHIPS.  

For Incapacitated Adults:

Under South Carolina law, the definition of an Incapacitated Person is a "person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property." S.C. Code of Laws 62-5-101

If someone is believed to be incapacitated and unable to make their own health care decisions, a Guardianship Action can be filed with the Probate Court to have that person legally declared an Incapacitated Person and have a Legal Guardian appointed with the authority and responsibility over their health and health care decisions.  

If the person was previously competent and designated an Agent in their Health Care Power of Attorney, a guardianship proceeding can generally be avoided and the Health Care Power of Attorney can be used by the appointed Agent to make health care decisions for the now incapacitated person.

In the event of a parent's death:

If you care for a child or incapacitated person, your will or trust should nominate someone to be appointed the legal guardian over them, in the event of your death.  A surviving parent who lives with and has custody of a minor child will normally automatically continue to have sole custody, but in the event they are unable or unwilling to, it is important to nominate alternates for this important role.

CONSERVATORSHIPS.

For Incapacitated Adults:

If someone is believed to be incapacitated and unable to make their financial decisions, a Conservatorship Action can be filed with the Probate Court to have that person legally declared an Incapacitated Person and have a Legal Conservator appointed with the authority and responsibility over their finances and financial decisions.  

If the person was previously competent and designated an Agent in their Durable Financial Power of Attorney, a conservatorship proceeding can generally be avoided and the Durable Financial Power of Attorney can be used by the appointed Agent to make financial decisions for the now incapacitated person.

For Minor Children:

If a child inherits or otherwise becomes entitled to funds over $15,000 and it is not left to them in trust or pursuant to the Uniform Gift to Minors Act, a Minor Conservatorship will likely be required to gain control over the funds. A Conservatorship Action can be filed with the Probate Court to have a Legal Conservator appointed with the authority and responsibility over those funds until the child is old enough to have the funds released to them at age 18. (Note that recent law changed the amount from $10,000 to $15,000).  


Are you caring for someone with special needs?  Do you need additional help or resources?

Visit:

Family Connections

SC Department of Disabilities and Special Needs

Information on Medicaid Waivers