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When a person is incapacitated due to mental disability or other reasons, the probate court may appoint:
If you are seeking to become a guardian or conservator for an incapacitated person, you must do so through the probate court, and the court may require that you are represented by counsel who will file the petition for you.
South Carolina law defines an incapacitated person as someone who is impaired because of:
The probate court must find by clear and convincing evidence that: 1) the person is incapacitated, and 2) the person applying to be the guardian is appropriate.
Note that incapacity does not mean making poor choices – the person must be unable to make choices due to their impairment.
If you have the appropriate documents in place, including a durable power of attorney, healthcare power of attorney, and a living will, the probate court may find that there is no need for a guardian or conservator to be appointed.
On the other hand, there are also situations where a guardian or conservator may be required such as when a minor’s parents are not available to care for the minor, or when a minor receives money through a lawsuit or other means and a conservator is required to manage their finances.
To have a guardian or conservator appointed based on an individual’s incapacity, your attorney must file a summons and complaint along with other documents. The court will require a written medical opinion that describes the reasons that the guardianship or conservatorship is necessary, and the court will appoint an investigator who will conduct interviews and report back to the court.
Your attorney will present evidence at a hearing to show that the appointment is necessary and that the proposed guardian or conservator is qualified.
If you are seeking to be appointed as guardian or conservator for a loved one, your probate and estate planning attorney at Axelrod and Associates can help. Call today at 843-916-9300 or complete our contact form to set up an initial consultation.
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