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Charleston Guardianship Attorney

When a person is an incapacitated adult, the state and the community recognize that such a person is in need of a guardian. In South Carolina, a guardianship proceeding is the process through which the probate court appoints a guardian for the incapacitated individual (who then becomes known as a “ward.”) Anyone can petition the court to appoint a guardian for a person in need. That petitioner can also ask to be appointed guardian him or herself or to name someone else to be considered for the position. In South Carolina, an institution or agency can also be appointed as guardian by the probate court.

How Our Charleston Guardianship Lawyer Can Help

Because taking responsibility for the care of another human being is a very serious matter, if you find yourself involved in this kind of situation, it is essential to have a skilled and experienced guardianship attorney to guide you. At Wiles Law Firm in Mt. Pleasant, our team is poised to assist you in setting up a guardianship. We have extensive experience in this area, having not only set up guardianships, but having worked as estate planners, creating special needs trusts, and helping clients prepare for their own potential incapacity. Our familiarity with the field, coupled with our intricate knowledge of South Carolina law, make us well-qualified to assist you with guardianship issues.

When is someone considered incapacitated?

According to South Carolina law, a person is considered incapacitated if that individual is impaired by:

  • Psychiatric illness
  • Developmental disability
  • Physical illness or disability
  • Advanced age
  • Chronic abuse of drugs or alcohol

“Impaired by” is a key phrase in this definition because it is entirely possible for someone very elderly or someone with a significant disability to be mentally sharp and fully able to make his or her own rational decisions. This is why the court takes its role in terms of evaluating the cognitive functioning of the supposedly “incapacitated” individual extremely seriously.

Responsibilities of a Guardian

The basic responsibilities of a guardian include deciding:

  • Where the ward will live
  • How the ward’s needs for food, clothing, hygiene will be attended to
  • How the ward will be cared for and comforted
  • When the ward needs medical or other healthcare attention

In addition, the guardian is required to:

  • Act in the ward’s best interest at all times
  • File a written annual report on the ward’s condition to the probate court
  • Visit the ward regularly
  • Keep the court informed about the physical location of the ward
  • Monitor the ward’s physical, psychological, educational, and healthcare needs
  • Give or refuse consent to release of confidential information on the ward’s behalf
  • Encourage as much independence on the part of the ward as possible
  • Make end-of-life decisions for the ward

It should be noted that the probate court may also appoint a guardian ad litem (GAL) to serve temporarily before the permanent guardian is named. The GAL is an independent third party the court appoints to investigate the situation and report back concerning the ward’s condition. The probate court will then appoint the actual guardian who will typically fulfill that role until the ward dies or until the ward is determined to be no longer incapacitated.

The Process of Becoming a Guardian

In order to be appointed a guardian in probate court, several things have to occur. These involve: [1] filing a Guardianship Petition [2] having two examiners appointed by the probate court, including one physician, find the ward to be incapacitated [3] have a court-appointed “visitor,” trained in law, nursing, or social work to establish that the incapacitated individual is in a healthy, safe environment.

It should also be noted that the person declared incapacitated retains his or her civil rights during assessment. Therefore, during the probate court hearing, that individual has the right to speak to the probate court judge directly, to be represented by an attorney and to fight against the petition he or she views as unfair.

How does a conservatorship differ from a guardianship?

There are a great many adults who are perfectly capable of taking care of their personal needs, but are no longer able to manage their finances. In such cases, there may be a need for the establishment of a conservatorship. In a conservatorship, the court appoints a person to handle an incapacitated person’s financial affairs only. The conservator is tasked with making financial decisions on behalf of the impaired individual that will be beneficial to the ward, protecting all assets, including property. A conservatorship is established to prevent an incapacitated person from being taken advantage of by scam artists and other predatory financial “experts.”

Who is a likely guardian?

In South Carolina, the probate court will decide on an appropriate guardian based on the circumstances of the particular case. Typically, the person petitioning to be guardian is approved for the position, but the court will make its decision based on its investigation of that person’s character and motives. If there is any suspicion that the would-be guardian is ill-intentioned, the court will search for a more appropriate choice. The following is the legal protocol for establishing priority for guardianship of an incapacitated individual:

  • Spouse
  • Adult child
  • Parent
  • Person nominated by will or other written document
  • Other relative
  • Someone nominated by the current caregiver
  • Person who is financially supporting the individual who needs care

As you can see, obtaining guardianship in South Carolina, though often necessary, is a complex process, involving as it does the care of an incapacitated person who may or may not be a close relative and who may or may not want you in control of his or her life. At Wiles Law Firm we understand how overwhelming it is to be put in a position of guardianship. So much power! So much responsibility! Fortunately, you don’t have to take all this on alone. Our attorneys know how to help to clarify the options you have and how best to deal with strategically with any problems that arise. If you are dealing with a guardianship in South Carolina, give our attorneys a call or just fill out a contact form on our website.

Wiles Law Firm, LLC helps clients with their estate planning needs in Charleston, South Carolina and the surrounding areas such as West Ashley, Summerville, North Charleston, Mount Pleasant, and John's Island.

Information on this website is not legal advice. Further, viewing of the enclosed information does not create an attorney-client relationship with Wiles Law Firm, LLC. Matters will be handled by attorneys who primarily practice out of our office in Charleston County located at 852 Lowcountry Blvd., Ste. 101, Mt. Pleasant, SC 29464. M. Emerson Wiles, III is the attorney responsible for this advertisement.

Any result Wiles Law Firm, LLC may achieve on behalf of one client in one particular matter does not necessarily indicate similar results can be obtained for other clients. Please contact a South Carolina estate planning attorney or one of our attorneys with Wiles Law Firm, LLC for a consultation regarding your unique estate plan.

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852 Lowcountry Blvd., Suite 101, Mount Pleasant, SC 29464
| Phone: 843-718-0232

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