Legal Process for Appointing a Guardian: instructions and recommendations
If appointing a guardian does become necessary, you need to know what to expect from the legal process. You should WATCH THE VIDEO BELOW to learn more about filing a Guardianship action in Probate Court.
Following are instructions and recommendations for self represented litigants in a Probate Court guardianship proceeding:
Jurisdiction. In South Carolina, the Probate Court has exclusive original jurisdiction over all subject matter related to guardianship proceedings. In other words, you must file any guardianship and/or conservatorship action in Probate Court.
Venue. The venue (location) for guardianship proceedings is in the county where the alleged incapacitated person resides or is present. If the individual is admitted to an institution through a court order, venue is also in the county in which that court sits.
Financial Requirements. Before filing a guardianship action, you must understand there is a financial commitment. Under SC Code Section 62-5-105, the petitioner is personally responsible for his or her own attorney’s fees and expenses of the action. The Court may issue an order altering this, but you should not rely on such a Court Order. Expenses can include filing fees, fees for respondent’s attorney, Guardian ad Litem, medical examiner and court reporter.
Pleadings. You will need to prepare a Summons and Petition for appointment of a guardian, protective order, and appointment of a guardian and conservator. The court approved forms can be found at the bottom of this classroom.
Please note, in some cases you may need a Supplemental Petition to expand upon the facts and reasons for the requested relief.
Completing the Petition. Properly completing the petition is a critical element in setting out your case for relief. The new law requires:
A detailed list of factual info including an explanation why the G/C is necessary;
Description of the nature and extent of the incapacity;
Why less restrictive alternatives are not available or appropriate;
Info about the proposed G/C and necessary parties to the action
The Petitioner must identify which rights and powers of the AII is requesting to be removed—along with any restrictions to be placed on the Alleged Incapacitated Individual and imposed on the Guardian. Such rights and powers include the right to:
marry or divorce;
reside in a place of the ward’s choosing, and consent or withhold consent to any residential or custodial placement;
travel without the consent of the guardian;
give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;
make end-of-life decisions including, but not limited to, a “do not resuscitate” order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration;
consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment;
authorize disclosures of confidential information;
operate a vehicle;
be employed without the consent of a guardian;
consent to or refuse educational services;
participate in social, religious or political activities;
buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under § 62-5-422;
make, modify, or terminate contracts;
bring or defend any action at law or equity; and
any other rights and powers that the court finds necessary to address.
NOTE: If not specifically removed, rights are retained by the Ward (A.I.I. that has been determined to be incapacitated by the Probate Court) and not all rights removed may be vested in the Guardian—such as the right to marry or vote.
Notice of Right to Counsel. Section 62-5-303A (guardianship) and 403A (conservatorship) of the Probate Code requires a Notice of Right to Counsel be served on the AII together with a Summons and Petition. The court approved form can be found at the bottom of this classroom.
Filing the Pleadings. When filing the Summons, Petition, and Notice of Right to Counsel, along with any medical reports, there is a $150.00 filing fee paid to the Probate Court. Effective January 1, 2019, the Probate Court may waive this fee if you are unemployed, disabled, or have other economic hardship reasons.
Service of Process. Pursuant to 62-5-303A, you must serve the Respondent (a/k/a Alleged Incapacitated Individual in this classroom) with the Summons, Petition, and Notice of Right to Counsel, along with any affidavits or medical reports; and serve any Co-Respondents with Summons, Petition, and any affidavits or medical reports.
Co-Respondents include (62-5-303(B)4):
The A.I.I.’s spouse and adult children; or, if none, his parents; or, if none, at least one of his adult relatives with the nearest degree of kinship;
Any person known to have been appointed as agent for the A.I.I. under a general durable power of attorney or health care power of attorney;
Any person who has equal or greater priority for appointment pursuant to § 62-5-308 as the person whose appointment is sought in the petition; and
Any person, other than an unrelated employee or health care worker, who is known or reasonably ascertainable by the petitioner to have materially participated in caring for the A.I.I. within the six-month period preceding the filing of the petition.
Appointments for the Probate Court. Once the Probate Court has received proof of service on the A.I.I., the Court will appoint certain individuals to protect the right of the A.I.I.:
An attorney to represent the A.I.I. who advocates for the expressed wishes of the A.I.I.—If no attorney has filed a notice of appearance within 15 days filing a Proof of Service by the petitioner; and
Appointment of a Guardian ad Litem with 30 days of the proof of service. The GAL is tasked with conducting an independent investigation to advocate for best interests of AII (regardless of AII desires).
The Probate Court will also appoint a Physician Examiner within 30 days for receipt of the Proof of Service.
Physician’s Examiner’s Report of Incapacity. 62-4-303D requires the doctor to complete a notarized report setting forth an evaluation of the condition of the A.I.I. This is the most critical piece of evidence in Guardianship and Conservatorship cases because the report itemizes the areas of life the A.I.I. no longer has capacity to manage. The notarized doctor’s report includes:
Description of the nature and extent of the incapacity, including specific functional impairments;
Diagnosis and assessment of the A.I.I.’s mental and physical condition, including whether he is taking any medications that may affect his actions;
Evaluation of the A.I.I.’s ability to exercise the rights set forth in § 62-5-304A;
When consistent with the scope of the examiner's license, an evaluation of the A.I.I.’s ability to learn self-care skills, adaptive behavior, and social skills, and a prognosis for improvement;
Date of all examinations and assessments upon which the report is based;
Identity of the persons with whom the examiner met or consulted regarding the A.I.I.’s mental or physical condition; and
Signature and designation of the professional license held by the examiner.
Priorities. There are statutory priorities for who may be appointed Guardian and/or Conservator. They are in descending order:
A person nominated to serve as guardian by the incapacitated person;
An agent under a power of attorney whose authority includes powers relating to the person of the incapacitated person;
The spouse of the incapacitated person;
An adult child of the incapacitated person;
A parent of the incapacitated person;
Another relative of the incapacitated person;
A person nominated by the person who is caring for him or paying benefits to him.
Criminal Background Check. The proposed Guardian must file a criminal background check from the state where they are a resident. Once received, the court will review these documents and note any questionable items, such as arrests. For South Carolina residents, a SLED criminal records check cost $25.00.
At the Hearing. If an agreement cannot be reached by the parties, a final hearing should be scheduled. The Petitioner may need to subpoena the examiners and any other witnesses he or she plans to call at the hearing. There must be clear and convincing evidence showing the A.I.I. is incapacitated and the appointment of a guardian is necessary to provide continuing care and supervision.
After appointment of a Guardian. Each year on the anniversary of appointment, the Guardian must file an Annual Report of Guardian. The court approved form can be found at the bottom of this classroom.