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Probate Guardianship / Conservatorship |
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Frequently Asked Questions About Guardianships |
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| Frequently Asked Questions About Conservatorship | ||
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1. |
Q: |
What is a Guardian? |
| A: | A Guardian is a court appointed individual that handles the personal and custodial matters for an incapacitated adult. The primary responsibilities of the guardian are to decide where the ward will live and make provisions for the ward's care, comfort and maintenance, including medical and healthcare decisions. | |
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2. |
Q: |
What individuals need a Guardian? |
| A: | Individuals over the age of eighteen that suffer from a mental or physical illness or disability; mental deficiency; advanced age; chronic use of drugs or alcohol; or any other cause to the extent that the individual lacks sufficient understanding, insight or capacity to make responsible decisions concerning their personal affairs and have not executed the proper legal documents to name an agent to make decisions for them.(ie. Durable Power of Attorney and Health Care Power of Attorney) | |
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3. |
Q: |
Who would be an appropriate guardian? |
| A: | An immediate family member, such as spouse, adult child, parent or sibling, would be an ideal guardian. If there are no immediate family members then the Court will look to other relatives or interested individuals, such as a neighbor or friend of the incapacitated adult. | |
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4. |
Q: |
Does the Probate Court handle Guardianship of Minors? |
| A: | No, guardianships for minors are under the jurisdiction of the Family Court. | |
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5. |
Q: |
What must be filed to begin the Guardianship Proceeding? |
| A: | A Summons; Petition for Finding of Incapacity and Appointment of Guardian (Form 530PC)**; $150.00 filing fee; Petition to Appoint a Visitor and Proposed Order; Petition to Appoint Two Designated Examiners and Proposed Order (Form 533PC)**; SLED report for the proposed Petitioner. | |
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6. |
Q: |
How do I obtain a Sled Report? |
| A: | You make a written request for the criminal report from SLED, P. O. Box 21398, Columbia, SC 29221-1398. Provide the following information about the Proposed Guardian to SLED: full name including maiden and alias names; date of birth; sex; race; and social security number. You must include $25.00 (business check, certified check, money order, or cashier's check) per search and a self addressed envelope. You may also make an internet request at www.sled.state.sc.us and you may pay for the search with a credit card. | |
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7. |
Q: |
How can you avoid a Guardianship? |
| A: | In order to avoid the Probate Court appointing a Guardian, you should execute the proper legal documents, such as a Health Care Power of Attorney and Durable Power of Attorney. | |
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8. |
Q: |
Do I need an attorney to petition to be a Guardian? |
| A: | Due to the legal complexity of the Summons and Petition, the requirements for legal service having to be properly served on all interested parties including proper service on the alleged incapacitated adult, and the need for proper notice of the hearing to all interested parties, the Court requires that the proposed Petitioner have an attorney. | |
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9. |
Q: |
Why is an attorney appointed as the Guardian Ad Litem and why is one needed in this proceeding? |
| A: | Due to a recent policy change, this Court will appoint Guardian Ad Litem for all incoming cases. Due to the complex nature of the proceedings and the allegations that the adult is incapacitated and cannot manage their personal affairs, the Probate Court appoints an attorney in good standing with the South Carolina Bar for the alleged incapacitated person. The attorney acts in a dual capacity as both Guardian ad Litem and Counsel for the incapacitated adult and investigates the need for the guardianship as well as the proposed Guardian's ability to serve the incapacitated person's best interests. | |
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10. |
Q: |
How do I know if Lancaster County is the appropriate place to file the petition? |
| A: | The law specifies where the proceedings are to take place and this is called venue. Venue for guardianship proceedings is in the county where the incapacitated person presently resides or where the person physically is present. | |
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11. |
Q: |
How does the Guardianship terminate? |
| A: | If the capacity of the adult changes or the incapacitated person passes away, the Guardian should file a final guardian report and Petition for Discharge (Form 571PC). If death is the reason for termination then a death certificate should be provided. A hearing may be held before the guardianship is terminated to determine capacity. | |
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Frequently Asked Questions About Conservatorship |
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1. |
Q: |
What is a Conservator? |
| A: | A Conservator is a court appointed individual or entity that handles the management of financial affairs or property. | |
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2. |
Q: |
What individuals need a Conservator? |
| A: | There are two main categories of conservatorships. First, minors receiving funds exceeding $10,000 from an inheritance, insurance proceeds or other beneficiary designated funds, personal injury settlements, or sale of real estate. Second, individuals over the age of eighteen that suffer from a mental or physical illness or disability; mental deficiency; advanced age; chronic use of drugs or alcohol; or any other cause to the extent that the individual lacks sufficient understanding, insight or capacity to make responsible decisions concerning their financial affairs and have not executed the proper legal documents to name an agent to make decisions for them. (ie.) Durable Power of Attorney. | |
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3. |
Q: |
Who would be an Appropriate Conservator? |
| A: | An immediate family member, such as spouse, adult child, parent or adult sibling, would be an ideal conservator. If there are no immediate family members then the Court will look to other relatives or interested individuals, such as a neighbor or friend of the incapacitated adult or minor. The need for financial or legal expertise will lead the Court to look for corporate entities, accountants or lawyers. | |
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4. |
Q: |
What must be filed to begin a Conservatorship proceeding for a minor? |
| A: | Due to a recent policy change, this Court will appoint Guardian Ad Litem for all incoming cases. A Summons; Petition for Appointment of Conservator (Form 540PC)**; $25.00 filing fee; Proposed Guardian ad Litem/Counsel Order (minor 14 and older must consent to the proposed counsel) (Form 532PC)**; certified copy of the birth certificate for the minor; SLED report and Credit report for the proposed Petitioner. | |
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5. |
Q: |
What must be filed to begin a Conservatorship proceeding for an adult? |
| A: | A Summons; Petition for Appointment of Conservator (Form 540PC)**; $70.00 filing fee; Petition to Appoint Two Designated Examiners and Proposed Order (Form 533PC); Proposed Guardian ad Litem/Counsel Order (Form 532PC); SLED report and Credit report for the proposed Petitioner. | |
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6. |
Q: |
What is the court's involvement once the Conservator is appointed? |
| A: | The Conservator is required to file an Inventory and Appraisement (Form 550PC)** within thirty days of being appointed and the Conservator must annually report (Form 560PC)** to the Court the income and approved disbursements along with the account statements and receipts of expenditures. The Court approves expenditures from the restricted accounts once the Conservator has filed the appropriate Petitions for Expenditures and supporting documentation. The Conservator should also inform the Court as to the whereabouts of the incapacitated adult or minor. The Court has the authority to appoint visitors and guardian ad litems to check on the incapacitated adult or minor because it is the Court's responsibility to make certain that the conservatorship is functioning in the best interest of the protected person. | |
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7. |
Q: |
Do I need an attorney to petition to be a Conservator? |
| A: | Due to the legal complexity of the Summons and Petition, the requirements of proper legal service on all interested parties including proper service on the alleged incapacitated adult, and the need for proper notice of the hearing to all interested parties, the Court requires that the proposed Petitioner have an attorney. | |
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8. |
Q: |
Why is an attorney appointed as the Guardian Ad Litem and why is one needed in this proceeding? |
| A: | Due to a recent policy change, this Court will appoint Guardian Ad Litem for all incoming cases. Due to the complex nature of the proceedings and the allegations that the adult is incapacitated and cannot manage their financial affairs, the Probate Court appoints an attorney in good standing with the South Carolina Bar for the alleged incapacitated adult. An attorney is always needed to represent the interest of a minor. The attorney acts in a dual capacity as both Guardian ad Litem and Counsel for the incapacitated adult and minor and investigates the need for the conservatorship as well as the proposed Conservator's ability to serve the incapacitated person's best interests. | |
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9. |
Q: |
Will a surety bond be required for the appointment of a Conservator? |
| A: | A surety bond is similar to an insurance policy for the minor or incapacitated person conditioned on the conservator carrying out his or her duties faithfully and appropriately. A surety bond is required on all cases unless the Probate Judge rules otherwise. | |
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10. |
Q: |
How do I obtain a SLED Report? |
| A: | You make a written request for the criminal report from SLED, P. O. Box 21398, Columbia, SC 29221-1398. Provide the following information about the Proposed Conservator to SLED: full name including maiden and alias names; date of birth; sex; race; and social security number. You must include $25.00 (business check, certified check, money order, or cashier's check) per search and a self-addressed envelope. You may also make an internet request at www.sled.state.sc.us and you may pay for the search with a credit card. | |
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11. |
Q: |
How do I obtain a credit report? |
| A: |
You may obtain a credit report from the following agencies:
Equifax, P. O. Box 105252, Atlanta, GA 30348-5252. Equifax's phone number is (800) 685-1111. Equifax also has an emergency fax request line (770) 375-3150. Internet access: www.equifax.com TransUnion, P. O. Box 1000, Chester, PA 19022 (800) 888-4213. Internet access: www.transunion.com You will need to provide the agency with driver's license number, social security number and date of birth for the proposed Conservator. |
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12. |
Q: |
How do I know if Lancaster County is the appropriate place to file the petition? |
| A: | The law specifies where the proceedings are to take place and this is called venue. Venue for conservatorship proceedings is in the county where the incapacitated person resides if the person resides in the state or if the person does not reside in the state venue can be any county where the out of state resident owns property. | |
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13. |
Q: |
How does the Conservatorship terminate? |
| A: |
If the minor reaches majority, if the capacity of the adult
changes or the incapacitated person passes away, the Conservator
should file a final accounting and Petition for Discharge (Form 571PC)**.
If death is the reason for termination then a death certificate should
be provided and proof that a Personal Representative has been appointed.
The Court will issue an Order for the transfer of assets to the minor that
has reached majority or to the individual that is no longer incapacitated or
to the Personal Representative of the decedent's estate. A Receipt and Release
shall be filed within ten (10) days of the release of assets. A hearing may be
held before the assets of the estate are distributed.
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