Guardianships

What is a Guardianship?

Guardianship is a court-ordered legal relationship where an adult is appointed by the Probate Court to make decisions regarding health, education, maintenance, and support for someone who is unable to make certain decisions on their own.

Terms you will see in Guardianship

• Allegedly Incapacitated Person – the person you believe cannot make decisions on their own. If the Probate Court decides they cannot, they will then be called the "Ward."
• Incapacitated – when someone cannot understand or express responsible choices. Someone can still make bad choices and not be incapacitated.
• Conservator – a person appointed to manage money or property of a ward.
• Guardian – a person who takes over life choices of the ward, such as where they live and their medical care.
• Examiner – a medical professional who examines an allegedly incapacitated person and gives an opinion on what that person can and cannot decide on their own.
• Guardian Ad Litem – a person appointed by the Probate Court to look out for the allegedly incapacitated person's best interest and prepare a report to give to the Probate Court.

How do I know if I need to get Guardianship?

Guardianship is supposed to be the last choice. You should try to help care for someone without one. However, sometimes you run into problems that you cannot solve without Guardianship. For example, you may need Guardianship to place someone in a long-term care facility if that is what they need and they refuse to go, or have checked out, or left on their own when they have been in one.

What is the process for getting Guardianship?

• You start by filing a Summons and Petition with the Probate Court in the county where the allegedly incapacitated person lives, is currently located, or owns property. There will be a filing fee for this.
• The allegedly incapacitated person and other required people, such as their family, are served with the Summons and Petition and will be given an opportunity to respond.
• The court will appoint a doctor to examine the allegedly incapacitated person and prepare a report stating what that person can or cannot do. You can ask a doctor to complete this and file it with your case at the start also.
• The court will also appoint an attorney to represent the allegedly incapacitated person's desires, and a Guardian ad Litem to represent the allegedly incapacitated person's best interests.
• The court will hold a hearing to decide if someone is incapacitated and what they cannot do on their own. The court will then appoint someone as Guardian to take over those choices only.
• You should consult with an attorney before filing a Guardianship action on your own.

What are the duties of a Guardian?

To do what is best for the ward's health, maintenance, support, and general well-being. The court will also require forms or reports to be completed every year.

What if the Ward has assets?

• If the income is from Social Security, ask the Social Security Administration to appoint a "Representative Payee." Contact the Social Security office nearest you for more information.
• If income is from Veterans Affairs, such as VA disability, you can contact the local VA Office to ask about appointing a "Fiduciary."
• You may need a Conservatorship if there is other income or property that you cannot help access or control.

What if someone wants Guardianship over you and you object?

You need to call an attorney right away. You are entitled to be present at a hearing and to review evidence about your condition.

What are alternatives to Guardianship?

• Durable Power of Attorney (made while the person has capacity to make decisions)
• Case or Care Management
• Health Care Power of Attorney
• SC Adult Health Care Consent Act
• Protective Orders
• Appointing a Representative Payee
• Help from Family or Friends

Is a Guardianship permanent?

• Not always. A case can be filed to end or change it.
• It can end if the Ward is no longer incapacitated. The Probate Court makes this decision.
• A Guardian can be changed if they act improperly or if they can no longer serve.