How to Handle the Mental or Physical Incapacity of a Loved One When No Advance Planning Has Been Done

The Consumer's Guide to Guardianships and Conservatorships

When a person is unable to make decisions for himself, whether health care or financial decisions, someone needs to be able to assume responsibility for that person's affairs. If no one has legal authority to act, then the courts must be asked to appoint someone to assist.

A guardian is appointed by a court to make personal and health care decisions for a person who is incapacitated, whether because of physical or mental disability. Guardians have the same rights, powers, duties and responsibilities over their wards as parents have over their minor children except that guardians do not have to use their own money to support the wards.

A Conservator is appointed by a court to handle the financial affairs of a person unable to do so for himself. The conservator takes possession of all the protected person's assets and must protect, invest and use them for the protected person's benefit.

A person may need a guardian or a conservator or both and the same person can be appointed in both capacities.

This Consumer's Guide to Guardianships and Conservatorships is designed to help provide you with information and answers to some of the questions you will encounter.  These are questions which we, as Elder Law attorneys and Probate Court Clerks, deal with on a daily basis. Our clients have found this guide to be a valuable resource, and we hope you will find it useful too. 

One of the most difficult issues families face is the physical or mental incapacity of a loved one.   In addition to dealing with the stress and emotional turmoil which accompanies caring for a physically disabled loved one, or a loved one suffering from Alzheimer's Disease, Dementia, memory loss, Parkinson¿s Disease, or any other mental incapacity, families must also cope with deciding who will accept the enormous responsibility of making the necessary decisions on behalf of the loved one.  If the loved one has not already executed a Durable Power of Attorney and a Living Will, families must ask the Court to appoint a Guardian and Conservator who can legally make all of the necessary decisions, and also be held to a standard of fiduciary responsibility for those decisions. 

Who Qualifies as One in Need of a Guardian and Conservator?

Guardians/conservators are appointed for incapacitated persons. An incapacitated person is an adult who has been found by the court to be incapable of receiving and evaluating information effectively or responding

to people, events or environments to such an extent that the individual lacks the capacity to:

· meet the essential requirements for his health, care, safety, and therapeutic needs without the assistance

or protection of a guardian. For instance, the individual may demonstrate:

· disorientation and memory loss

· noticeable physical and behavioral changes compared to the previous         year

· inability to care for him or herself (neglect of personal hygiene, careless       eating and sleeping routines)

OR

· inability to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator.

A finding that the individual displays poor judgment, alone, shall not be considered sufficient evidence that the individual is an incapacitated person.

Who Qualifies to Serve as a Guardian or Conservator?

Any adult may file a petition for the appointment of a guardian, conservator, or both. The person filing a petition (petitioner) does not necessarily have to be the person who will be appointed guardian or conservator.

Powers and Duties of a Guardian

Powers and Duties of a Conservator

1.  At all times, the conservator is to exercise reasonable care, diligence, and prudence, and shall act in the best interest of the incapacitated person. To the extent known to him or her, the conservator shall consider the expressed desires and personal values of the incapacitated person.

2.  Subject to limitations or conditions in the conservatorship order, the conservator shall take care of and preserve the estate of the incapacitated person and manage it to the best advantage. The conservator shall apply income from the estate, or so much as may be necessary, to the payment of the debts of the incapacitated person, including payment of reasonable compensation to himself or herself and to any guardian appointed, to the maintenance of such person and of his or her legal dependents, if any, and, to the extent that the income is not sufficient, shall so apply the corpus of the estate.

3. The conservator shall, to the extent feasible, encourage the incapacitated person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage the estate and his or her financial affairs. A conservator shall also consider:

· the size of the estate

· probable duration of the conservatorship

· incapacitated person¿s accustomed manner of living

· other resources known to the conservator to be available

· recommendations of the guardian

4. The conservator stands in a fiduciary relationship to the incapacitated person for whom he or she was appointed conservator and may be held personally liable for a breach of any fiduciary duty under South Carolina Law. Unless otherwise provided in the contract, a conservator  is personally liable on a contract entered into in a fiduciary capacity in the course of the administration of the estate unless he or she reveals the representative capacity and identifies the estate in the contract.  Claims based upon contracts entered into by a conservator in a fiduciary capacity, obligations arising from ownership or control of the estate, or torts committed in the course of administration of the estate, may be asserted against the estate by proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable therefor. A successor conservator is not personally liable for the contracts or actions of a predecessor.

5.  As of the date the conservator is appointed, he or she shall have the following powers in managing the incapacitated person's estate, which may be exercised without prior court authorization except as otherwise specifically provided in the court's order of appointment:

· To sell the incapacitated person's real estate unless restricted in the court order

· To ratify or reject a contract entered into by the incapacitated person

· To pay any sum distributable for the benefit of the incapacitated person or for the benefit of a legal dependent to the following parties, if applicable:

· distributee

· provider of goods and services

· any individual or facility that is responsible for or has assumed responsibility for care and custody

· distributee's custodian under a Uniform Gifts or Transfer to Minors Act of any applicable jurisdiction

· guardian of the incapacitated person or, in the case of a dependent, to the dependent's guardian or conservator

·  To maintain life, health, casualty and liability insurance for the benefit of the incapacitated person, or legal dependents

· To manage the estate following termination of the conservatorship until its delivery to the incapacitated person, or successors in interest

· To execute and deliver all instruments, and to take all other actions that will serve in the best interests of the incapacitated person

· To initiate a proceeding to:

· revoke a power of attorney

· seek a divorce; or

· to make an augmented estate election under

· To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals and security, as shall seem advisable, including the power to borrow from the conservator, if the conservator is a bank; to mortgage or pledge such portion of the incapacitated person's estate as may be required to secure such loan or loans; and, as maker or endorser, to renew existing loans.

6.  The court may impose requirements to be satisfied by the conservator prior to the conveyance of any interest in real estate, including, but not limited to:

· increasing the amount of the conservator's bond

· securing an appraisal of the real estate or interest

· giving notice to interested parties as the court deems proper

Where to Go For Help

If a family member needs to have a guardian or conservator appointed, you should contact an attorney who is familiar with this area of the law so that the necessary papers can be filed with the appropriate court and so that the correct procedures can be followed. The attorney can also advise you of various alternatives to guardianship or conservatorship that may be available. Such choices may include durable powers of attorney, living trusts or other options.