Guardians and Conservators

A Guardian is a court-appointed individual who handles the physical person of 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.

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. (Examples: Durable Power of Attorney and Health Care Power of Attorney)

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. Under certain circumstances, the Court may look into the possibility of appointing an 3rdparty guardian.

No, guardianships for minors are under the jurisdiction of the Family Court. You may want to contact the Richland County Family Court at 803-576-3320.

A Summons; Petition for Finding of Incapacity and Appointment of Guardian Notice of Right to Counsel; $150.00 filing fee, check or money order, made payable to Richland County Treasurer.

You may make a written request(PDF, 12KB) 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.sc.gov and you may pay for the search with a credit card.

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.

Due to the legal complexity of the Guardianship action, it is recommended to have an attorney assist you with the process but is not required. Our office cannot provide legal advice.

The law requires that the alleged incapacitated individual have their legal Counsel for these proceedings. This person is responsible for representing and advocating for the alleged incapacitated individual in this action.

The law specifies where the proceedings are to take place and this is called venue. The venue for guardianship proceedings is in the county where the incapacitated person presently resides or where the person is physically present.

The two ways is if the capacity of the adult changes or the incapacitated person passes away. If the incapacitated individual passes away the Guardian should file an Application for Relief and a certified death certificate or obituary for the individual. If the incapacitated individual regains capacity, please contact the Court for further instructions on this process.

A Conservator is a court-appointed individual or entity that handles the management of financial affairs or property.

There are two main categories of conservatorships. First, any individual over the age of eighteen who suffers 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. For example, Durable Power of Attorney. Second, minors receiving funds of $15,000 from an inheritance or real property from an estate. Second, insurance proceeds or other beneficiary-designated funds, personal injury settlements, or sale of real estate.

An immediate family member, such as a 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 may lead the Court to look for corporate entity, accountants or lawyers to serve in this capacity.

Summons and Petition or a Verified Application for Appointment of Conservator for Minor, $150.00 filing fee for formal Summons and Petition or $22.50 for the Verified Application; long-form birth certificate for the minor; SLED report or criminal background check where the proposed conservator is a resident and Credit report for the proposed conservator, a copy of the proposed conservator's driver's license, and a copy of the proposed conservator's social security card.

A Summons; Petition for Appointment of Conservator; Notice of Right to Counsel; $150.00 filing fee; Examiner Report and Affidavit Regarding Incapacity from a physician; SLED report or criminal background check from the state the proposed conservator is a resident and credit report for the proposed conservator, a copy of the proposed conservator's driver's license and security card.

The Conservator is required to file an Inventory and Appraisement within thirty (30) days of being appointed and the Conservator must annually report 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 Application for Expenditures and supporting documentation. The Conservator should also inform the Court as to the whereabouts of the incapacitated individual. The Court has the authority to appoint visitors and Guardian Ad Litems to check on the incapacitated individual because it is the Court's responsibility to make certain that the conservatorship is functioning in the best interest of the protected person. Fiduciary letters of conservatorship shall be filed and recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the other counties where the protected person owns real estate.

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 individual, and the need for proper notice of the hearing to all interested parties, the Court recommends that the Petitioner have an attorney.

Due to a recent policy change, this Court now selects Counsel for all incoming cases from a rotating list of attorneys in good standing with the South Carolina Bar who are willing to serve in this capacity or if the alleged incapacitated individual has an attorney the Court will appoint that person. Due to the complex nature of the proceedings and the allegations that the adult is incapacitated and cannot handle their financial affairs, the Probate Court appoints an attorney for the alleged incapacitated individual. When an attorney is appointed, they are responsible for investigating the need for the Conservatorship as well as the proposed Conservator's ability to serve the protected person's best interests.

A fiduciary bond is similar to an insurance policy for the incapacitated person conditioned on the conservator carrying out his or her duties faithfully and appropriately. For adults with ongoing monthly expenditures, a fiduciary bond is usually required. To alleviate the annual expense of the bond, the Richland County Probate Court allows the Conservator to open a restricted account. The financial institution that accepts the conservatorship funds in a restricted account executes a Restricted Account Agreement with the Court. The Agreement states that funds will not be disbursed, and assets will not be sold without an Order from the Court. Both the Conservator and the financial institution agree to the terms set forth in the Agreement.

You make a written request for the criminal report from SLED, P. 0. 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.sc.gov and you may pay for the search with a credit card.

Fill out the credit history report written request(PDF, 22KB). You may obtain a credit report from the following agencies:

Equifax
P. O. Box 105252
Atlanta, GA 30348-5252
(800) 685-1111
Emergency fax request line: (770) 375-3150

TransUnion
P. O. Box 1000
Chester, PA 19022
(800) 888-4213

You will need to provide the agency with driver's license number, social security number and date of birth for the proposed Conservator.

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.

If the minor reaches majority, if the capacity of the adult changes, or if the incapacitated person passes away. The Conservator should file a final accounting and application for relief. If death is the reason for termination, then a death certificate should be provided along with proof that a Personal Representative has been appointed. The Court will issue an order for release of funds 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 shall be filed within fifteen (15) days of the release of assets. A hearing may be held before the assets of the estate are distributed if the Court believes it is necessary. Fiduciary letters of conservatorship shall be recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the other counties where the protected person owns real estate.