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But wait.... I can't just sign for this? Guardianship and Conservatorship in South Carolina

South Carolina takes the protection of persons and their financial interests very seriously. There are at least four (4) different (kind of) roles which can be played by a person to act on behalf of another person. Two of them are called "guardians" and one is called a "guardian ad litem." The fourth is called a "conservator." Very easy and not confusing at all. Sure.


But there are distinctions to be made, at least from a general perspective. What really matters is "what decisions are you trying to make," and "who you are making them for." Answering these two questions will determine the "where do you get this power and authority," and "how, " from the legal perspective.


Working backwards, because why not, let's start with "conservator" and "conservatorship"... Let's say you have an adult child. Very sadly, that child has fallen into a vicious cycle of drug abuse and despite your and your child's best efforts and sacrifices, they keep relapsing. After repeatedly spending their paychecks or what little money you can spare on their addiction, you finally decide it is time for tough love and take control of their finances. They have some money left in their accounts, they have a car that is paid off, they may have some other assets which need to be protected, and some creditors who need to be paid.


You've decided the who and the what. Your adult child, financial decision responsibility.


This leads you to the where and the how. South Carolina Probate Courts have jurisdiction to hear "conservatorship" cases. This case, if successful, would allow you, or another third party, to be named "conservator" for your adult child's financial decision making authority and responsibility over their assets and debts. This is a big responsibility, and the process requires a finding of "incapacity" which results in their inability to understand and make responsible decisions relating to their finances. The court process to be named conservator, particularly if it is contested, will be an expensive and difficult one. There is a way it can be avoided with thousands of dollars saved. Read to the end to find out...


The twin Guardians. These are much more commonly known and understood roles. And they deal with the same "what," only the "who" changes, and that results in a change of the "where" and "how."


A guardian is a person with the responsibility to determine the personal and custodial needs of another individual. They will decide where the person lives, who does the day-to-day care, comfort and "maintenance," of that individual. A guardian handles everything which is not financially related, but oftentimes a guardian and conservator are one and the same.


The difference is whether the person is a minor under the age of 18. If so, then the "where" is a South Carolina Family Court. If not, and the person is an adult, then it is back to the Probate Court, and the individual must again be found to have 'incapacity.' The proper county is the one where the alleged incapacitated or minor person reside.


In all these cases, a thorough case will need to built to support the appointment of the person offering or seeking to become the conservator or guardian. They will need to demonstrate their own financial worthiness (credit and background checks) and their own ability to make sound decisions on behalf of another (SLED reports). The incapacity of the individual will need to be established (physicians and/or examiners, visitors).


In all cases, a person who represents the interests of the minor or alleged incapacitated person will be appointed by the Court. This is the fourth - a Guardian ad litem. This is most often an attorney who is appointed by the Court to act as the voice and defense for the person whose rights are being abrogated.


How to avoid all this complexity, cost, time, and stress...


Estate planning. Even the most basic estate plan will at least look at the potential for these duties to be necessary.


Do you believe your child may be prone to a drug dependency? Do you believe it is possible that you may not make it home tonight to see your child?


These are heart-sinking thoughts. Why? Because you care about the people who would be affected by a "yes" answer. Because the "yes" answer enters an unknown territory with unexpected events. Territories and events that is un-mapped and unplanned for.


I can take you through my process and, in the most gentle way I know, help you to understand what situations create the biggest question marks for you (the un-mapped territory). What situations would cause you the most worry (the unplanned for event). And that is what we plan for. So you can have a map and a plan. Knowing that those people you care about will not be faced with having to know the ins and outs of the legal processes described above. It is a great gift to yourself and them.



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