South Carolina Legislature


South Carolina Code of Laws
Unannotated

Title 62 - South Carolina Probate Code

ARTICLE 5

Protection of Persons Under Disability and Their Property

DISPOSITION TABLE

Showing where the sections in Parts 1, 2, 3, 4, Article 5, Title 62 were recodified.

Former

Section New

Section 62-5-101 62-5-101 62-5-102(a) 62-5-201 62-5-102(b) 62-5-102 62-5-103 62-5-103 62-5-104 62-5-309(c) 62-5-105 62-5-104 62-5-105 (new) 62-5-106 (A) 62-5-101 62-5-106 (B) 62-5-306, 62-5-307 (A), 62-5-428 62-5-106 (new) 62-5-107 (new) 62-5-201 62-5-201 62-5-301 62-5-301 62-5-302 62-5-302 62-5-303 62-5-303, 62-5-303A, 62-5-303B, 62-5-303C, 62-5-303D 62-5-304 62-5-304 62-5-304A (new) 62-5-305 62-5-305 62-5-306 62-5-306 62-5-307 62-5-307, 62-5-307A 62-5-308 removed 62-5-309(A) 62-5-303A 62-5-309(B) 62-5-303C 62-5-310 62-5-108 62-5-311 62-5-308 62-5-312 62-5-309 62-5-313 62-5-310 62-5-401(1) 62-5-402 62-5-401(2) 62-5-403 62-5-402 62-5-426, see also 62-5-201 62-5-403 62-5-401 62-5-404 62-5-403 62-5-405 62-5-403A, 62-5-403C 62-5-406 62-5-403C 62-5-407(a) 62-5-402 62-5-407(b) 62-5-403B, 62-5-403C, 62-5-403D 62-5-407 (new) 62-5-408 62-5-107, 62-5-108, 62-5-404, 62-5-405, 62-5-414, 62-5-422, 62-5-423 62-5-409 62-5-405 62-5-410 62-5-408 62-5-411 62-5-409 62-5-412 62-5-410 62-5-413 62-5-411 62-5-413 (new) 62-5-414 62-5-105, 62-5-412 62-5-415 62-5-428 62-5-416 62-5-428 62-5-417 62-5-414 62-5-418 62-5-415 62-5-419 62-5-416 62-5-420 62-5-417 62-5-421 62-5-418 62-5-422 62-5-419 62-5-423 62-5-420 62-5-421 (new) 62-5-424 62-5-422 62-5-425 62-5-423 62-5-426 62-5-404, 62-5-428 62-5-427 62-5-425 62-5-428 62-5-426 62-5-429 62-5-427 62-5-430 62-5-428 62-5-431 62-5-429 62-5-432 62-5-430 62-5-432 (new) 62-5-433 62-5-433 62-5-434 removed 62-5-435 removed 62-5-436 62-5-431

Editor's Note

2017 Act No. 87, Section 6, provides as follows:

"(A) This act takes effect on January 1, 2019.

"(B) Except as otherwise provided in this act, on the effective date of this act:

"(1) this act applies to any conservatorships, guardianships, or protective orders for minors or persons under a disability created before, on, or after its effective date;

"(2) this act applies to all judicial proceedings concerning conservatorships, guardianships, or protective orders for minors or persons under a disability commenced on or after its effective date;

"(3) this act applies to judicial proceedings concerning conservatorships, guardianships, and protective orders for minors or persons under a disability commenced before its effective date unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case that particular provision of this act does not apply and the superseded law applies;

"(4) subject to item (B)(5) and subsection (C) of this SECTION, any rule of construction or presumption provided in this act applies to governing instruments executed before the effective date of this act unless there is a clear indication of a contrary intent in the terms of the governing instrument; and

"(5) an act done and any right acquired or accrued before the effective date of the act is not affected by this act.

"(C) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before the effective date of the act, that statute continues to apply to the right even if it has been repealed or suspended."

Part 1

General Provisions

SECTION 62-5-101. Definitions and use of terms.

Unless otherwise apparent from the context, in this article:

(1) "Adult" means an individual who has attained the age of eighteen or who, if under eighteen, is married or has been emancipated by a court of competent jurisdiction.

(2) "Alleged incapacitated individual" means:

(a) an adult for whom a protective order is sought;

(b) an adult for whom the appointment of a guardian is sought; or

(c) an adult for whom a determination of incapacity is sought.

(3) "Conservator" means a person appointed by the court to manage the estate of a protected person.

(4) "Counsel for alleged incapacitated individual" means a person authorized to practice law in the State of South Carolina who represents the alleged incapacitated individual in a guardianship proceeding or a protective proceeding. Counsel shall represent the expressed wishes of the alleged incapacitated individual to the extent consistent with the rules regulating the practice of law in the State of South Carolina.

(5) "Court" means the probate court.

(6) "Disabled" means the medically determinable physical or mental impairment of a minor or an adult as defined by 42 U.S.C. Section 1382c, as amended.

(7) "Emergency" means circumstances that are likely to result in substantial harm to the alleged incapacitated individual's health, safety, or welfare or in substantial economic loss to the alleged incapacitated individual.

(8) "Foreign conservator" means a conservator or a person with the powers of a conservator of another jurisdiction.

(9) "Guardian" means a person appointed by the court as guardian, but excludes one who is a guardian ad litem. A guardian shall make decisions regarding the ward's health, education, maintenance, and support.

(10) "Guardian ad litem" means a person licensed in the State of South Carolina in law, social work, nursing, medicine, or psychology, or who has completed training to the satisfaction of the court, and who has been appointed by the court to advocate for the best interests of the alleged incapacitated individual.

(11) "Guardianship proceeding" means a formal proceeding to determine if an adult is an incapacitated individual or in which an order for the appointment of a guardian for an adult is sought or has been issued.

(12) "Incapacitated individual" means an individual who, for reasons other than minority, has been adjudicated as incapacitated.

(13) "Incapacity" means the inability to effectively receive, evaluate, and respond to information or make or communicate decisions such that a person, even with appropriate, reasonably available support and assistance cannot:

(a) meet the essential requirements for his physical health, safety, or self-care, necessitating the need for a guardian; or

(b) manage his property or financial affairs or provide for his support or for the support of his legal dependents, necessitating the need for a protective order.

(14) "Less restrictive alternative" means the provision of support and assistance as defined in this section which maximizes the alleged incapacitated individual's capacity for self-determination and autonomy in lieu of a guardianship or conservatorship.

(15) "Net aggregate amount" means the total sum of payments due to a minor or incapacitated individual after subtracting all outstanding reimbursements and relevant deductions.

(16) "Party" means the alleged incapacitated individual, ward, protected person, petitioner, guardian, conservator, or any other person allowed by the court to be a party in a guardianship proceeding or protective proceeding, including those listed in Section 62-5-303, Section 62-5-402, and Section 62-5-403.

(17) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

(18) "Protected person" means an individual for whom a conservator has been appointed or other protective order has been issued.

(19) "Protective order" means an order appointing a conservator or relating to the management of the property of:

(a) an incapacitated individual;

(b) a minor;

(c) a person who is confined, detained by a foreign power, or who has disappeared; or

(d) a person who is disabled and in need of a court order to create and establish a special needs trust for such person's benefit.

(20) "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.

(21) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(22) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(23) "Supports and assistance" includes:

(a) systems in place for the alleged incapacitated individual to make decisions in advance or to have another person to act on his behalf, including, but not limited to, having an agent under a durable power of attorney, a health care power of attorney, a trustee under a trust, a representative payee to manage social security funds, a Declaration of Desire for Natural Death (living will), a designated health care decision maker under Section 44-66-30, or an educational representative designated under Section 59-33-310 to Section 59-33-370; and

(b) reasonable accommodations that enable the alleged incapacitated individual to act as the principal decision-maker, including, but not limited to, using technology and devices; receiving assistance with communication; having additional time and focused discussion to process information; providing tailored information oriented to the comprehension level of the alleged incapacitated individual; and accessing services from community organizations and governmental agencies.

(24) "Ward" means an adult for whom a guardian has been appointed.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 521, Section 81; 2008 Act No. 303, Section 1, eff June 11, 2008; 2010 Act No. 244, Section 24, eff June 7, 2010. Formerly Code 1976 Sections 62-5-101 and 62-5-106, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Code Commissioner's Note

At the direction of the Code Commissioner, in (23)(a), "Section 59-33-310 to Section 59-33-370" was substituted for "Section 55-33-310 to Section 55-33-370" to correct a scrivener's error.

SECTION 62-5-102. Consolidation of proceedings.

When both guardianship proceedings and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.

HISTORY: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 5; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-103. Facility of payment or delivery.

(A) A person under a duty to pay or deliver money or personal property to a minor or incapacitated individual may perform this duty in amounts not exceeding a net aggregate amount of fifteen thousand dollars each year by paying or delivering the money or property to the conservator for the minor or incapacitated person, if the person under a duty to pay or deliver money or personal property has actual knowledge that a conservator has been appointed or an appointment is pending. If the person under a duty to pay or deliver money or personal property to a minor or incapacitated person does not have actual knowledge that a conservator has been appointed or that appointment of a conservator is pending, the person may pay or deliver the money or property in amounts not exceeding a net aggregate of fifteen thousand dollars each year to:

(1) a person having the care and custody of the minor or incapacitated individual with whom the minor or incapacitated individual resides;

(2) a guardian of the minor or an incapacitated individual; or

(3) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor or for the minor under the Uniform Gifts to Minors Act and giving notice of the deposit to the minor.

(B) The persons, other than a financial institution under subsection (A)(3) above, receiving money or property for a minor or incapacitated individual, serve as fiduciaries subject to fiduciary duties, and are obligated to apply the money for the benefit of the minor or incapacitated individual with due regard to:

(1) the size of the estate, the probable duration of the minority or incapacity, and the likelihood that the minor or incapacitated individual, at some future time, may be able to manage his affairs and his estate;

(2) the accustomed standard of living of the minor or incapacitated individual and members of his household; and

(3) other funds or resources used or available for the support or any obligation to provide support for the minor or incapacitated individual.

(C) The persons may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated individual's support. Money or other property received on behalf of a minor or incapacitated individual may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated individual. Excess sums must be preserved for future benefit of the minor or incapacitated individual, and any balance not used and property received for the minor or incapacitated individual must be turned over to the minor when he attains majority or is emancipated by court order; or, to the incapacitated individual when he has been readjudicated as no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application of the money or personal property. If the net aggregate amount exceeds fifteen thousand dollars, a conservatorship shall be required.

(D) An employer may fulfill his duties to a minor or incapacitated individual by delivering a check to or depositing payment into an account in the name of the minor or incapacitated employee.

HISTORY: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 20; 1990 Act No. 521, Section 82; 1997 Act No. 152, Section 20; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-104. Director of Department of Mental Health or his designee may act as conservator.

If a patient of a state mental health facility has no legally appointed conservator, the Director of the Department of Mental Health or his designee, may receive and accept, for the use and benefit of the patient, assets which may be due the patient by inheritance, gift, pension, or otherwise with a net aggregate amount not exceeding fifteen thousand dollars in one calendar year. The director or his designee may act as conservator for the patient and his endorsement or receipt discharges the obligor for any assets received. Upon receipt, the director or his designee shall apply the assets for the proper maintenance, use, and benefit of the patient. In the event the patient dies leaving an unexpended balance of assets in the hands of the director or his designee, the director or his designee shall apply the balance first to the funeral expenses of the patient, and any balance remaining must be held by the director or his designee for a period of six months; if within that period, the director or his designee is not contacted by the personal representative of the deceased patient, the balance of the assets may be applied to the maintenance and medical care account of the deceased patient. The director or his designee must, within thirty days following the death of the patient, notify the court in the county in which the patient resided at the time of admission to the department's facility of the death of the patient and provide a list of any property belonging to the patient and held by the department. Upon appointment of a conservator for a patient of a state mental health facility, the director shall deliver any assets of the protected person to the conservator and provide an accounting of the management of those assets.

HISTORY: 1986 Act No. 539, Section 1; 1993 Act No. 83, Section 1; 1993 Act No. 181, Section 1611. Formerly Code 1976 Section 62-5-105, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-104 was titled Delegation of guardian's powers, and had the following history: 1986 Act No. 539, Section 1; 1987 Act No. 171, Section 65; 1997 Act No. 152, Section 21. See now, Code 1976 Section 62-5-309.

SECTION 62-5-105. Costs and expenses; attorney's fees.

(A) In a formal proceeding, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the assets of a ward or protected person who is the subject of a formal proceeding.

(B) If not otherwise compensated for services rendered, the court-appointed guardian ad litem, counsel for the alleged incapacitated individual, counsel for the minor, and designated examiner are entitled to reasonable compensation, as determined by the court.

(C) Unless the court issues an order stating otherwise, petitioners are responsible for their own attorney's fees and costs, as well as the other costs and expenses of the action.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-105 was titled Director of Department of Mental Health or his designee may act as conservator, and had the following history: 1986 Act No. 539, Section 1; 1993 Act No. 83, Section 1; 1993 Act No. 181, Section 1611. See now, Code 1976 Section 62-5-104.

SECTION 62-5-106. Responsibilities and duties of guardian ad litem; reports.

(A) Once a guardian ad litem is appointed by the court, pursuant to Section 62-5-303B or Section 62-5-403B, the responsibilities and duties of the guardian ad litem include, but are not limited to:

(1) acting in the best interest of the alleged incapacitated individual;

(2) conducting an independent investigation to determine relevant facts and filing a written report with recommendations at least forty-eight hours prior to the hearing, unless excused or required earlier by the court. The investigation must include items listed in subitems (a) through (i) and also may include items listed in subitems (j) through (m), as appropriate or as ordered by the court:

(a) obtaining and reviewing relevant documents;

(b) meeting with the alleged incapacitated individual, at least once within thirty days following appointment, or within such time as the court may direct;

(c) investigating the residence or proposed residence of the alleged incapacitated individual;

(d) interviewing all parties;

(e) discerning the wishes of the alleged incapacitated individual;

(f) identifying less restrictive alternatives to guardianship and conservatorship;

(g) reviewing a criminal background check on the proposed guardian or conservator;

(h) reviewing a credit report on the proposed conservator;

(i) interviewing the person whose appointment is sought to ascertain the:

(i) proposed fiduciary's knowledge of the fiduciary's duties, requirements, and limitations; and

(ii) steps the proposed fiduciary intends to take or has taken to identify and meet the needs of the alleged incapacitated individual;

(j) consulting with persons who have a significant interest in the welfare of the alleged incapacitated individual or knowledge relevant to the case;

(k) contacting the Department of Social Services to investigate any action concerning the alleged incapacitated individual or the proposed fiduciary;

(l) determining the financial capabilities and integrity of the proposed conservator including, but not limited to:

(i) previous experience in managing assets similar to the type and value of the alleged incapacitated individual's assets;

(ii) plans to manage the alleged incapacitated individual's assets; and

(iii) whether the proposed conservator has previously borrowed funds or received financial assistance or benefits from the alleged incapacitated individual;

(m) interviewing any persons known to the guardian ad litem having knowledge of the alleged incapacitated individual's financial circumstances or the integrity and financial capabilities of the conservator, or both, and reviewing pertinent documents;

(3) advocating for the best interests of the alleged incapacitated individual by making specific recommendations regarding resources as may be appropriate and available to benefit the alleged incapacitated individual, the appropriateness of the appointment of a guardian or conservator, and any limitations to be imposed;

(4) avoiding conflicts of interest, impropriety, or self-dealing. A guardian ad litem shall not accept or maintain appointment if the performance of his duties may be materially limited by responsibilities to another person or by his own interests;

(5) participating in all court proceedings including discovery unless all parties waive the requirement to appear or the court otherwise excuses participation;

(6) filing with the court and delivering to each party a copy of the guardian ad litem's report; and

(7) moving for any necessary temporary relief to protect the alleged incapacitated individual from abuse, neglect, abandonment, or exploitation, or to address other emergency needs of the alleged incapacitated individual.

(B) Notes of a guardian ad litem are discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

(C) The report of the guardian ad litem shall include all relevant information obtained in his investigation. The report shall contain facts including:

(1) the date and place of the meeting with the alleged incapacitated individual;

(2) a description of the alleged incapacitated individual;

(3) known medical diagnoses of the alleged incapacitated individual including the nature, cause, and degree of the incapacity and the basis for the findings;

(4) description of the condition of the alleged incapacitated individual's current place of residence including address and factors affecting safety;

(5) identification of persons with significant interest in the welfare of the alleged incapacitated individual;

(6) any prior action by the Department of Social Services or law enforcement concerning the alleged incapacitated individual or the proposed fiduciary of which the guardian ad litem is aware;

(7) a statement as to any prior relationship between the guardian ad litem and the petitioner, alleged incapacitated individual, or other party to the action;

(8) a description of the current care and treatment needs of the alleged incapacitated individual; and

(9) any other information relevant to the matter.

(D) The report shall contain recommendations including:

(1) whether a guardian or conservator is needed;

(2) the propriety and suitability of the proposed fiduciary after consideration of his geographic location, his familial or other relationship, his ability to carry out the duties of the proposed fiduciary, his commitment to promoting the welfare of the alleged incapacitated individual, his financial capabilities and integrity, his potential conflicts of interests, the wishes of the alleged incapacitated individual, and the recommendations of the relatives of the alleged incapacitated individual;

(3) approval or disapproval by the alleged incapacitated individual of the proposed fiduciary;

(4) an evaluation of the future care and treatment needs of the alleged incapacitated individual;

(5) if there is a proposed residential plan for the alleged incapacitated individual, whether that plan is in the best interest of the alleged incapacitated individual;

(6) a recommendation regarding any rights in Section 62-5-304A, which should be retained by the alleged incapacitated individual;

(7) whether the matter should be heard in a formal hearing even if all parties are in agreement; and

(8) any other recommendations relevant to the matter.

(E) The court in its discretion may extend or limit the responsibilities or authority of the guardian ad litem.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-106 was titled Termination of conservatorship, and had the following history: 2008 Act No. 303, Section 1, eff June 11, 2008. See now, Code 1976 Sections 62-5-101, 62-5-306, 62-5-307, and 62-5-428.

SECTION 62-5-107. Finding of incapacity.

Unless an order of the court specifies otherwise, a finding of incapacity is not a determination that the protected person or ward lacks testamentary capacity or the capacity to create, amend, or revoke a revocable trust.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-108. Temporary orders and hearings.

(A) The process for emergency orders without notice, emergency hearings, duration, and security is as follows:

(1) Emergency orders without notice must not be issued unless the moving party files a summons, motion for emergency order with supporting affidavit(s), verified pleading, notice of emergency hearing, and any other document required by the court. The verified pleading, motions, and affidavits shall set forth specific facts supporting the allegation that an immediate and irreparable injury, loss, or damage will result before notice can be served on adverse parties and a hearing held pursuant to subsection (B).

(a) If emergency relief is required to protect the welfare of an alleged incapacitated individual, the moving party must present an affidavit from a physician who has performed an examination within thirty days prior to the filing of the action, a motion for the appointment of counsel if counsel has not been retained, and a motion for the appointment of a proposed qualified individual to serve as guardian ad litem.

(b) If the emergency relief requested is an order for:

(i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or

(ii) the removal of an existing guardian, conservator, or other fiduciary, and the appointment of a substitute, then the moving party must submit evidence of the suitability and creditworthiness of the proposed fiduciary.

(2) If the motion for an emergency order is not granted, the moving party may seek temporary relief after notice pursuant to subsection (B) or proceed to a final hearing.

(3) If the motion for an emergency order is granted, the date and hour of its issuance must be endorsed on the order. The date and time for the emergency hearing must be entered on the notice of hearing and it must be no later than ten days from the date of the order or as the court determines is reasonable for good cause shown.

(4) The moving party shall serve all pleadings on the alleged incapacitated individual, ward or protected person and other adverse parties immediately after issuance of the emergency order.

(5) If the moving party does not appear at the emergency hearing, the court may dissolve the emergency order without notice.

(6) Evidence admitted at the hearing may be limited to pleadings and supporting affidavits. Upon good cause shown or at the court's direction, additional evidence may be admitted.

(7) On two days' notice to the party who obtained the emergency order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move for the emergency order's dissolution or modification, and in that event, the court shall proceed to hear and determine the motion as expeditiously as possible and may consolidate motions.

(8) No emergency order for conservatorship must be issued except upon the court receiving adequate assurances the assets will be protected, which may include providing of security by the moving party in a sum the court deems proper for costs and damages incurred by any party who without just cause is aggrieved as a result of the emergency order. A surety upon a bond or undertaking submits to the jurisdiction of the court.

(9) The court may take whatever actions it deems necessary to protect assets, including, but not limited to, issuing an order to freeze accounts.

(B) The process for temporary orders and temporary hearings with notice is as follows:

(1) A temporary order must not be issued without notice to the adverse party.

(2) An order for a temporary hearing must not be issued unless the moving party files a summons, motion for temporary hearing with supporting affidavits, and a petition or other appropriate pleading setting forth specific facts supporting the allegation that immediate relief is needed during the pendency of the action, and an affidavit of service of the notice of the temporary hearing to adverse parties.

(a) If temporary relief is required to protect the welfare of an alleged incapacitated individual, in addition to the requirements set forth above in subsection (B)(2), the moving party shall present an affidavit from a physician who has performed an examination within forty-five days prior to the filing of the action, a motion for the appointment of counsel if counsel has not been retained, and a motion for appointment of a proposed qualified individual to serve as guardian ad litem.

(b) If the temporary relief requested is an order for:

(i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or

(ii) removal of an existing guardian, conservator or other fiduciary, and the appointment of a substitute, in addition to the requirements set forth in subsection (B)(2) and (a), as applicable, the moving party shall submit evidence of the suitability and creditworthiness of the proposed fiduciary.

(3) If the motion for temporary relief is not granted, the action will remain on the court docket for a final hearing.

(4) If the motion for temporary relief is granted, the court shall enter a date and time for the temporary hearing on the notice of hearing.

(5) The moving party shall serve pleadings on the alleged incapacitated individual, ward or protected person, and other adverse parties. Service must be made no later than ten days prior to the temporary hearing or as the court determines is reasonable for good cause shown.

(6) Temporary orders resulting from the hearing shall expire six months from the date of issuance unless otherwise specified in the order.

(C) In an emergency, the court may exercise the power of a guardian with or without notice if the court makes emergency findings as required by the Adult Health Care Consent Act, Section 44-66-30.

(D) After preliminary hearing upon such notice as the court deems reasonable, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the alleged incapacitated individual as may be required for his benefit or the benefit of his dependents. Notice of the court's actions shall be given to interested parties as soon thereafter as possible.

(E) A hearing concerning the need for appointment of a permanent guardian must be a hearing de novo as to all issues before the court.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 3; 1997 Act No. 152, Section 22; 2000 Act No. 398, Section 10; 2010 Act No. 244, Section 29, eff June 7, 2010. Formerly Code 1976 Sections 62-5-310 and 62-5-408, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Part 2

Jurisdiction

SECTION 62-5-201. Jurisdiction.

Exclusive jurisdiction of the court is set forth in Sections 62-1-302 and 62-5-701 as to appointment of a guardian or issuance of a protective order. Pursuant to the court's authority to appoint a guardian, and Section 62-5-309, the guardian has the authority to maintain custody of the person of the ward and to establish the ward's place of abode, unless otherwise specified in the court's order. The court does not have jurisdiction over the care, custody, and control of the person of a minor, but does have jurisdiction over the property of a minor if the court determines that the minor owns property that requires management or protection.

HISTORY: 1986 Act No. 539, Section 1; 1987 Act No. 171, Section 66; 1988 Act No. 659, Section 5. Formerly Code 1976 Sections 62-5-102 and 62-5-201, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Part 3

Guardians of Incapacitated Individuals

SECTION 62-5-301. Testamentary nomination of guardian for incapacitated individual.

(A) The parent of an alleged incapacitated individual may by will nominate a guardian for an alleged incapacitated individual. A testamentary nomination by a parent gives the nominee priority pursuant to Section 62-5-308 in any proceeding to determine incapacity and appoint a guardian. A testamentary nomination by a parent gives priority to the nominee to make health care decisions for the alleged incapacitated individual pursuant to Section 44-66-30. Such nomination creates priority under Sections 62-5-308 and 44-66-30 when the will is informally or formally probated, if prior to the will being probated, both parents are deceased or the surviving parent is adjudged incapacitated. If both parents are deceased, the nomination by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.

(B) The spouse of an alleged incapacitated individual may by will nominate a guardian for an alleged incapacitated individual. A testamentary nomination by a spouse gives the nominee priority pursuant to Section 62-5-308 in any proceeding to determine incapacity and appoint a guardian. A testamentary nomination by a spouse gives priority to the nominee to make health care decisions for the alleged incapacitated individual pursuant to Section 44-66-30. Such nomination creates priority under Sections 62-5-308 and 44-66-30 when the will is informally or formally probated. An effective nomination by a spouse has priority over a nomination by a parent unless the nomination is terminated by the denial of probate in formal proceedings.

(C) This State shall recognize a testamentary nomination under a will probated at the testator's domicile in another state.

HISTORY: 1986 Act No. 539, Section 1; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-302. Venue.

Venue for guardianship proceedings is in the place where the alleged incapacitated individual or ward resides or is present. If the alleged incapacitated individual or ward is committed to an institution pursuant to an order of a court of competent jurisdiction, venue also is in the county in which that court sits.

HISTORY: 1986 Act No. 539, Section 1; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-303. Procedure for court appointment of a guardian; summons and petition.

(A) A person seeking a finding of incapacity, appointment of a guardian, or both, must file a summons and petition. When more than one petition is pending in the same court, the proceedings may be consolidated.

(B) The petition shall set forth, to the extent known or reasonably ascertainable, the following information:

(1) interest of the petitioner;

(2) name, age, current address, and contact information of the alleged incapacitated individual, who must be designated as a respondent;

(3) physical location of the alleged incapacitated individual during the six-month period immediately preceding the filing of the summons and petition; and, if the alleged incapacitated individual was not physically present in South Carolina for that period, sufficient information upon which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;

(4) to the extent known and reasonably ascertainable, the names and addresses of the following persons, who must be designated as corespondents:

(a) the alleged incapacitated individual's spouse and adult children; or, if none, his parents; or, if none, at least one of his adult relatives within the nearest degree of kinship;

(b) a person known to have been appointed as agent for the alleged incapacitated individual under a general durable power of attorney or health care power of attorney;

(c) a person who has equal or greater priority for appointment pursuant to Section 62-5-308 as the person whose appointment is sought in the petition; and

(d) a 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 alleged incapacitated individual within the six-month period preceding the filing of the petition;

(5) name and address of the proposed guardian and the basis of his priority for appointment;

(6) reasons why a guardianship is necessary, including why less restrictive alternatives are not available or appropriate, and a brief description of the nature and extent of the alleged incapacity;

(7) a statement of any rights that a petitioner is requesting be removed from the alleged incapacitated individual, any restrictions to be placed on the alleged incapacitated individual, and any restrictions sought to be imposed on the guardian's powers and duties; and

(8) to the extent known and reasonably ascertainable, a general statement of the alleged incapacitated individual's assets, with an estimate of value, and the source and amount of any income of the alleged incapacitated individual.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 25, eff June 7, 2010; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-303A. Procedure for court appointment of a guardian; service.

(A) As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve:

(1) a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual;

(2) a copy of the summons and petition upon all corespondents and the petitioner in any pending guardianship proceeding; and

(3) any affidavits or physician's reports filed with the petition.

(B) If service is not accomplished within one hundred twenty days after the filing of the action, the court may dismiss the action without prejudice.

(C) The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of proof of service, the court will appoint counsel. In appointing counsel, the court shall consider the expressed preferences of the alleged incapacitated individual.

(D) The date for the alleged incapacitated individual to file a responsive pleading shall run from the later of the date the court appoints counsel for the alleged incapacitated individual or from the date the court receives notice of appearance by counsel selected by the alleged incapacitated individual.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 2; 2010 Act No. 244, Sections 25, 28, eff June 7, 2010. Formerly Code Sections 62-5-303 and 62-5-309, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-303B. Procedure for court appointment of a guardian; appointments of counsel, guardians ad litem, and an examiner.

(A) Upon receipt by the court of proof of service of the summons, petition, and notice of right to counsel upon the alleged incapacitated individual, the court shall:

(1) upon the expiration of fifteen days from filing the proof of service on the alleged incapacitated individual, if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual, appoint counsel;

(2) no later than thirty days from the filing of the proof of service on the alleged incapacitated individual, appoint:

(a) a guardian ad litem for the alleged incapacitated individual who shall have the duties and responsibilities set forth in Section 62-5-106; and

(b) one examiner, who must be a physician, to examine the alleged incapacitated individual and file a notarized report setting forth his evaluation of the condition of the alleged incapacitated individual in accordance with the provisions set forth in Section 62-5-303D. Unless the guardian ad litem or the alleged incapacitated individual objects, if a physician's notarized report is filed with the petition and served upon the alleged incapacitated individual and all interested parties with the petition, then the court may appoint such physician as the examiner. Upon the court's own motion or upon request of the initial examiner, the alleged incapacitated individual, or his guardian ad litem, the court may appoint a second examiner, who must be a physician, nurse, social worker, or psychologist.

(B) At any time during the proceeding, if requested by a guardian ad litem who is not an attorney, the court may appoint counsel for the guardian ad litem.

(C) At the attorney's discretion, the attorney for the alleged incapacitated individual may file a motion requesting that the court relieve him as the attorney if the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment of a guardian. The attorney must file an affidavit in support of the motion. If the court is satisfied that the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment of a guardian, then the court may relieve the attorney from his duties as attorney for the alleged incapacitated individual. If the former attorney requests to be appointed as the guardian ad litem, the court may appoint him to serve as the guardian ad litem. An attorney cannot serve as both an attorney and as a guardian ad litem in a guardianship action.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 25, eff June 7, 2010. Formerly Code 1976 Section 62-5-303, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-303C. Procedure for court appointment of a guardian; hearing.

(A) As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties, the court shall hold a hearing on the merits of the petition. The alleged incapacitated individual, all parties, and any person who has filed a demand for notice, shall be given notice of the hearing. The alleged incapacitated individual is entitled to be present at the hearing, to conduct discovery, and to review all evidence bearing upon his condition. The hearing may be closed at the request of the alleged incapacitated individual or his guardian ad litem. The alleged incapacitated individual may waive notice of a hearing and his presence at the hearing. If there is an agreement among all the parties and the guardian ad litem's report indicates that a hearing would not further the interests of justice, the alleged incapacitated individual may waive his right to a hearing. If the alleged incapacitated individual waives his right to a hearing, the court may:

(1) require a formal hearing;

(2) require an informal proceeding as the court shall direct; or

(3) proceed without a hearing.

(B) If no formal hearing is held, the court shall issue a temporary consent order, which shall expire in thirty days. A ward, under a temporary order, may request a formal hearing at any time during the thirty-day period. At the end of the thirty-day period, if the ward has not requested a formal hearing, the court shall issue an order upon such terms agreed to by the parties and the guardian ad litem.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 2; 2010 Act No. 244, Sections 25, 28, eff June 7, 2010. Formerly Code Sections 62-5-303 and 62-5-309, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-303D. Procedure for court appointment of a guardian; report evaluating condition of alleged incapacitated individual.

(A) Each examiner shall complete a notarized report setting forth an evaluation of the condition of the alleged incapacitated individual. The original report must be filed with the court by the court's deadline, but not less than forty-eight hours prior to any hearing in which the report is introduced as evidence. For good cause, the court may admit an examiner's report filed less than forty-eight hours prior to the hearing. All parties are entitled to review the reports after filing, which must be admissible as evidence. The evaluation shall contain, to the best of the examiner's knowledge and belief:

(1) a description of the nature and extent of the incapacity, including specific functional impairments;

(2) a diagnosis and assessment of the alleged incapacitated individual's mental and physical condition, including whether he is taking any medications that may affect his actions;

(3) an evaluation of the alleged incapacitated individual's ability to exercise the rights set forth in Section 62-5-304A;

(4) when consistent with the scope of the examiner's license, an evaluation of the alleged incapacitated individual's ability to learn self-care skills, adaptive behavior, and social skills, and a prognosis for improvement;

(5) the date of all examinations and assessments upon which the report is based;

(6) the identity of the persons with whom the examiner met or consulted regarding the alleged incapacitated individual's mental or physical condition; and

(7) the signature and designation of the professional license held by the examiner.

(B) Unless otherwise directed by the court, the examiner may rely upon an examination conducted within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith, an examiner appointed by the court pursuant to Section 62-5-303B, is immune from civil liability for breach of patient confidentiality made in furtherance of his duties.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 25, eff June 7, 2010. Formerly Code 1976 Section 62-5-303, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-304. Order of appointment; alternatives; limitations on guardian's powers.

(A) The court shall exercise its authority to encourage maximum self-reliance and independence of the incapacitated individual and issue orders only to the extent necessitated by the incapacity of the individual.

(B) The court may appoint a guardian if clear and convincing evidence shows that the individual is incapacitated and the appointment of a guardian is necessary to provide continuing care and supervision of the incapacitated individual. The court may:

(1) enter an appropriate order;

(2) treat the petition as one for a protective order and proceed accordingly; or

(3) dismiss the proceeding.

(C) The court may appoint co-guardians if the appointment is in the best interest of the incapacitated individual. The compensation of co-guardians in the aggregate shall not exceed the compensation that would have been allowed to a sole guardian. Unless the order of appointment provides otherwise:

(1) each co-guardian has authority to act independently; and

(2) if a co-guardian dies, the other co-guardian has continuing authority to act alone.

(D) The court, on its own motion or on the petition or motion of the incapacitated individual or other interested person, may limit the powers of a guardian and create a limited guardianship. A limitation on the statutory power of a guardian of an incapacitated individual shall be endorsed on the guardian's letters. A limitation may be removed, modified, or restored pursuant to Sections 62-5-307 and 62-5-307A.

(E) Unless the court order specifies otherwise:

(1) appointment of a guardian terminates an agent's powers under a health care power of attorney or durable power of attorney for matters within the scope of the guardianship; and

(2) the guardian shall act consistently with the most recent advance directive executed by the ward prior to an adjudication of incapacity.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 1; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-304A. Rights and powers of ward and guardian.

(A) The court shall set forth the rights and powers removed from the ward. To the extent rights are not removed, they are retained by the ward. Such rights and powers include the rights and powers to:

(1) marry or divorce;

(2) reside in a place of the ward's choosing, and consent or withhold consent to any residential or custodial placement;

(3) travel without the consent of the guardian;

(4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;

(5) 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;

(6) 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;

(7) authorize disclosures of confidential information;

(8) operate a vehicle;

(9) vote;

(10) be employed without the consent of a guardian;

(11) consent to or refuse educational services;

(12) participate in social, religious or political activities;

(13) 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 Section 62-5-422;

(14) make, modify, or terminate contracts;

(15) bring or defend any action at law or equity; and

(16) any other rights and powers that the court finds necessary to address.

(B) The court shall set forth the rights and powers vested in the guardian. These rights and powers include, but are not limited to, the rights and powers to:

(1) determine the place where the ward shall reside and consent or withhold consent to any residential or custodial placement;

(2) consent to travel;

(3) consent or refuse to consent to visitation with family, friends and others;

(4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;

(5) 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;

(6) 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;

(7) authorize disclosures of confidential information;

(8) consent to or refuse educational services;

(9) consent to employment;

(10) make, modify, or terminate contracts related to the duties of the guardian;

(11) bring or defend any action at law or equity; and

(12) exercise any other rights and powers that the court finds necessary to address.

(C) Nothing in this section must be construed as removing any rights guaranteed by the Bill of Rights for Residents of Long-Term Care Facilities under Chapter 81, Title 44.

(D) The attorney-client privilege between the ward and the ward's counsel must not be removed by the appointment of a guardian.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-305. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding must be given or waived pursuant to Sections 62-1-401 and 62-1-402.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 26, eff June 7, 2010; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-306. Termination of guardianship for incapacitated person; accounting of funds.

(A) Upon the death of the ward, the guardian shall notify the court and file a death certificate confirming the ward's death. The court may then issue an order terminating the guardianship and the appointment of the guardian.

(B) If there is no conservatorship for the ward, the guardian may file an application for specific authority to use the ward's funds for the final disposition of the ward's remains. If the application is granted by the court, the guardian shall file an accounting of those funds within ten days from the date of approval, along with a proof of delivery showing he has delivered a copy of the accounting to the last known address of the person named as Personal Representative in the ward's will. If the guardian cannot locate the will after reasonable effort, he shall send a copy of the accounting to the last known address for at least one of the ward's closest adult relatives. Upon approval of the accounting, the court will issue an order terminating the guardianship and the appointment.

(C) Termination of the appointment does not affect the guardian's liability for prior acts nor his obligation to account for any funds or assets of the ward.

HISTORY: 1986 Act No. 539, Section 1; 2008 Act No. 303, Section 1, eff June 11, 2008. Formerly Code 1976 Sections 62-5-106 and 62-5-306, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-307. Informal request for relief.

(A) The ward or another person interested in his welfare, may make an informal request for relief by submitting a written request to the court. The court may take such action as considered reasonable and appropriate to protect the ward.

(B) A person making an informal request submits personally to the jurisdiction of the court.

HISTORY: 1986 Act No. 539, Section 1; 2008 Act No. 303, Section 1, eff June 11, 2008; 2010 Act No. 244, Section 27, eff June 7, 2010. Formerly Code 1976 Sections 62-5-106 and 62-5-307, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-307A. Removal of guardian; termination of incapacity.

(A) Upon filing of a summons and petition with the appointing court, the ward or any person interested in his welfare may, for good cause, request an order to:

(1) prove by a preponderance of the evidence that the ward is no longer incapacitated. The petition may request a court order limiting the scope of the guardianship and the authority of the guardian or a termination of the guardianship and the appointment of the guardian. The court may specify a minimum period, not exceeding one year, during which no application or petition for readjudication may be filed without leave of court;

(2) appoint a successor guardian due to death, incapacity, resignation, or dereliction of duty of the guardian. The appointment of a successor guardian does not affect the guardian's liability for prior acts nor his obligation to account for any funds or assets of the ward. The petition shall name a willing and qualified person to serve as successor guardian in the petition or set forth why no such successor is available; or

(3) modify the provisions of an existing court order.

(B) After filing and service of the summons and petition, the court may appoint a guardian ad litem and may appoint counsel for the ward, unless the ward has private counsel, and such examiners as are needed to evaluate and confirm the allegations of the petition.

(C) On its own motion, the court may initiate appropriate proceedings under this section as considered necessary to promote the best interests of the ward.

(D) An attorney who has been asked by the ward to represent him in an action under this section may file a motion with the court for permission to represent the ward.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 27, eff June 7, 2010. Formerly Code 1976 Section 62-5-307, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-308. Who may be guardian; priorities.

(A) In appointing a guardian, the court shall consider persons who are otherwise qualified in the following order of priority:

(1) a person previously appointed guardian, other than a temporary or emergency guardian, currently acting for the ward in this State or elsewhere;

(2) a person nominated to serve as guardian by the alleged incapacitated individual if he has sufficient mental capacity to make a reasoned choice;

(3) an agent designated in a power of attorney by the alleged incapacitated individual, whose authority includes powers relating to the care of the alleged incapacitated individual;

(4) the spouse of the alleged incapacitated individual or a person nominated as testamentary guardian in the will of the alleged incapacitated individual's deceased spouse;

(5) an adult child of the alleged incapacitated individual;

(6) a parent of the alleged incapacitated individual or a person nominated as testamentary guardian in the will of the alleged incapacitated individual's deceased parent;

(7) the person nearest in kinship to the alleged incapacitated individual who is willing to accept the appointment;

(8) a person with whom the alleged incapacitated individual resides outside of a health care facility, group home, homeless shelter, or prison;

(9) a person nominated by a health care facility caring for the alleged incapacitated individual; and

(10) any other person considered suitable by the court.

(B) A person whose priority is based upon his status under subsections (A)(1), (3), (4), (5), (6), or (7) may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the alleged incapacitated individual, may decline to appoint a person having higher priority and appoint a person having lesser priority or no priority.

(C) Other than as provided in Section 62-5-108, a probate judge or an employee of the court shall not serve as a guardian of a ward; except, a probate judge or an employee of the court may serve as a guardian of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 4. Formerly Code 1976 Section 62-5-311, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-308 was titled Visitor in guardianship proceeding, and had the following history: 1986 Act No. 539, Section 1.

SECTION 62-5-309. Delegation of guardian's powers.

(A) Subject to the rights and powers retained by the ward and except as modified by order of the court, the guardian has the following duties, rights, and powers:

(1) to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, maintaining custody of the ward and the ability to establish the ward's place of abode within or without this State;

(2) if entitled to custody of his ward, providing for the care, comfort, and maintenance of the ward; the guardian is entitled to receive reasonable compensation for his services and for room and board furnished to the ward as approved by the court;

(3) arranging for appropriate habilitation and rehabilitation services and educational, social, and vocational services to assist the ward in the development of maximum self-reliance and independence;

(4) taking reasonable care of his ward's clothing, furniture, vehicles, and other personal effects, and commencing protective proceedings if other property of his ward is in need of protection;

(5) providing any consents, denials, or approvals necessary to enable the ward to receive or refuse to receive medical or other professional care, counsel, treatment, or service, including institutional care. If there is no conservator and placement or care of the ward requires the execution of an admission agreement or other documents for the ward's placement in a facility, the guardian may execute such documents on behalf of the ward, without incurring personal liability;

(6) if no conservator for the estate of the ward is appointed or if the guardian is also conservator:

(a) instituting proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;

(b) receiving money and tangible property deliverable to the ward and applying the money and property for support, care, and education of the ward; however, he may not use funds from his ward's estate for room and board or services that he, his spouse, parent, or child have furnished the ward unless a charge for the services or room and board is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs; and

(c) exercising the ward's rights as trust beneficiary to the extent provided in Article 7, Title 62;

(7) reporting the condition of his ward and of the estate that has been subject to his possession or control to the court, as required by the court or court rule, but at least on an annual basis;

(8) if a conservator has been appointed:

(a) paying over to the conservator all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward and accounting to the conservator for funds expended; and

(b) requesting the conservator to expend the ward's estate by payment to the guardian or to third persons or institutions for the ward's care and maintenance;

(9) if co-guardians have been appointed, keeping the other co-guardian informed of all relevant information regarding the care and custody of the ward, including, but not limited to, the identity of the ward's care providers, medical providers, or similar professionals and informing the other co-guardian when scheduling medical appointments for the ward; and

(10) exercising any other power, right, or duty ordered by the court.

(B) A guardian, within thirty days of his appointment, shall file a plan of care. The plan must be based on the actual needs of the ward, taking into consideration the best interest of the ward. The guardian shall revise the plan as the needs and circumstances of the ward require. The guardian shall include in the plan a statement of the extent to which the ward may be able to develop or recover ability for independent decision making and any proposed steps to develop or restore the ward's ability for independent decision making. The court shall approve, disapprove, or modify the plan in informal or formal proceedings, as the court deems appropriate. Nothing herein shall require the court to oversee the plan of care.

(C) A guardian, by a properly executed special power of attorney, may delegate to another person, for a period not to exceed sixty days, any of his powers regarding the care and custody of the ward. The original power of attorney must be filed with the court having jurisdiction over the guardianship.

(D) A guardian is not legally obligated to provide for the ward from the guardian's funds solely by reason of his appointment as guardian.

(E) A guardian is not liable to a third person for acts of the ward solely by reason of the guardianship relationship and is not liable for injury to the ward resulting from the wrongful conduct of a third person providing medical or other care, treatment or service for the ward except to the extent that the guardian failed to exercise reasonable care in choosing the provider.

HISTORY: 1986 Act No. 539, Section 1; 1987 Act No. 171, Section 65; 1997 Act No. 152, Section 21. Formerly Code 1976 Sections 62-5-104 and 62-5-312, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

The Reporter's Comments do not reflect the amendment made by 1997 Act No. 152, Section 21, which changed the time period for a delegation of powers from six months to thirty days.

Prior Laws: Former Section 62-5-309 was titled Service and notice in guardianship proceedings, and had the following history: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 2; 2010 Act No. 244, Section 28, eff June 7, 2010. See now, Code 1976 Sections 62-5-303A and 62-5-303C.

SECTION 62-5-310. Proceedings subsequent to appointment; venue.

(A) The court that appointed the guardian shall maintain jurisdiction over the guardianship until such time as:

(1) the proceeding is terminated following the death of the ward;

(2) the proceeding is terminated pursuant to a readjudication of incapacity;

(3) the court transfers the proceeding to another county's jurisdiction;

(4) the court transfers the proceedings to another state.

(B) If the court with competent jurisdiction determines that venue would be more appropriate:

(1) in another county of this State, the court shall notify the court in the other county and, after consultation with that court, determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of an order accepting a resignation or removing a guardian must be sent to the court in which acceptance of appointment is filed; or

(2) in another state, the first court shall follow the procedures set forth in Section 62-5-714.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-313, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-310 was titled Temporary guardians, and had the following history: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 3; 1997 Act No. 152, Section 22; 2010 Act No. 244, Section 29, eff June 7, 2010. See now, Code 1976 Section 62-5-108.

SECTION 62-5-311. Omitted.

HISTORY: Former Section, titled Who may be guardian; priorities, had the following history: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 4. Omitted by 2017 Act No. 87, Section 5.A, eff January 1, 2019. See now, Code 1976 Section 62-5-308.

SECTION 62-5-312. Omitted.

HISTORY: Former Section, titled General powers and duties of guardian, had the following history: 1986 Act No. 539, Section 1. Omitted by 2017 Act No. 87, Section 5.A, eff January 1, 2019. See now, Code 1976 Section 62-5-309.

SECTION 62-5-313. Omitted.

HISTORY: Former Section, titled Proceedings subsequent to appointment; venue, had the following history: 1986 Act No. 539, Section 1. Omitted by 2017 Act No. 87, Section 5.A, eff January 1, 2019. See now, Code 1976 Section 62-5-310.

Part 4

Protection of Property of Persons Under Disability and Minors

SECTION 62-5-401. Venue.

Subject to the provisions of Section 62-5-701, et seq., venue for proceedings under this part is:

(1) in the county where the alleged incapacitated individual resides; or

(2) if the alleged incapacitated individual does not reside in this State, in any county in the state where the alleged incapacitated individual has property or has the right to take legal action.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-403, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-401 was titled Protective proceedings, and had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 30, eff June 7, 2010. See now, Code 1976 Sections 62-5-402 and 62-5-403.

SECTION 62-5-402. Protective proceedings; minors.

(A) The appointment of a conservator or issuance of a protective order may be made in relation to the estate and affairs of a minor if:

(1) a minor owns real or personal property that requires management or protection;

(2) a minor has or may have business affairs that may be adversely affected by a lack of effective management; or

(3) it is necessary to obtain and administer funds for the health, education, maintenance, and support of the minor.

(B) The appointment of a conservator or issuance of a protective order for a minor may be made in the following manner:

(1) By filing a verified application setting forth the following information:

(a) the interest of the applicant;

(b) the name, age, current address, and contact information for the minor;

(c) physical location of the minor during the six-month period immediately preceding the filing of the application and if the minor was not present in South Carolina for that period, sufficient information upon which the court may determine it has initial jurisdiction;

(d) the name and address of the non-applicant parent of the minor, the person with whom the minor resides, and other persons as the court directs;

(e) any person who has equal or greater priority for appointment as the person whose appointment is sought pursuant to Section 62-5-408;

(f) the name and address of the person whose appointment is sought and the basis of priority for appointment;

(g) the reason why the appointment is necessary; and

(h) an estimate of the value of the minor's assets and the source of the minor's income, if any.

(2) Upon consideration of the application and in the court's discretion, with or without a hearing, if the court concludes it is in the best interests of the minor, the court shall issue its order of appointment or protective order.

(C) The court may at any time require the filing of a summons and petition for the appointment of a conservator or for issuance of a protective order, and the appointment or order must be made in the following manner:

(1) the petition shall set forth the information required in subsection (B);

(2) the summons and petition must be served on the minor, the minor's parents whose identity and whereabouts are known or reasonably ascertainable, the person or persons having custody of the minor, and other persons the court directs; and

(3) after the time has elapsed for the filing of a response to the petition and a hearing, if the court concludes it is in the best interests of the minor, the court shall issue its order of appointment or a protective order.

(D) Except upon a finding of good cause, the court shall require the conservator to furnish bond, or establish a restricted account, or both pursuant to Section 62-5-409.

(E) If a minor is receiving needs-based government benefits the court may limit access to the minor's funds to prohibit payments that would disqualify the minor from receipt of benefits.

(F) At any time and in any proceeding if the court determines the interests of the minor are not or may not be adequately represented, it may appoint a guardian ad litem to represent the minor.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Sections 30, 33, eff June 7, 2010. Formerly Code 1976 Sections 62-5-401 and 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-402 was titled Protective proceedings; jurisdiction of affairs of protected persons, and had the following history: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 6; 2010 Act No. 244, Section 31, eff June 7, 2010. See now, Code 1976 Section 62-5-426.

SECTION 62-5-403. Protective proceedings; incapacitated and disabled persons.

(A) A person seeking a finding of incapacity, appointment of a conservator, or issuance of a protective order must file a summons and petition if:

(1) the individual is unable to manage his property or affairs effectively for reasons of incapacity, confinement, detention by a foreign power, or disappearance; and

(a) the individual has an agent pursuant to a durable power of attorney and the actions necessary to prevent waste or dissipation of the individual's property are not being adequately performed by or are beyond the authority of the agent; or

(b) the individual has no agent under a durable power of attorney and owns property that will be wasted or dissipated or which is needed for the health, education, maintenance, or support of the individual or those entitled to his support, and protection is necessary to obtain or administer the funds.

(2) a protective order is necessary to create a special needs trust for an individual who is disabled in accordance with Social Security Administration guidelines.

(B) The petition shall set forth, to the extent known or reasonably ascertainable, the following information:

(1) interest of the petitioner;

(2) name, age, current address, and contact information of the alleged incapacitated individual, who must be designated as the respondent;

(3) physical location of the alleged incapacitated individual during the six-month period immediately preceding the filing of the summons and petition; and, if the alleged incapacitated individual was not physically present in South Carolina for that period, sufficient information upon which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;

(4) to the extent known and reasonably ascertainable, the names and addresses of the following persons, who must be designated corespondents:

(a) the alleged incapacitated individual's spouse and any adult children; or if none, his parents; or if none, at least one of his adult relatives with the nearest degree of kinship;

(b) a person known to have been appointed as agent under a general durable power of attorney or health care power of attorney;

(c) a person who has equal or greater priority for appointment pursuant to Section 62-5-408 as the person whose appointment is sought in the petition;

(d) a person other than an unrelated employee or health care worker who is known or reasonably ascertainable by the petitioner to have materially participated in the caring for the alleged incapacitated individual within the six-month period preceding the filing of the petition; and

(e) the person entitled to notice on behalf of the VA, if the alleged incapacitated individual is receiving VA benefits;

(5) name and address of the proposed conservator and the basis of his priority for appointment;

(6) reason why conservatorship is necessary, including why less restrictive alternatives are not available and appropriate, and a brief description of the nature and extent of the alleged incapacity;

(7) a statement of any rights the petitioner is requesting be removed from the alleged incapacitated individual, any restrictions to be placed on the alleged incapacitated individual, and any restrictions sought to be imposed on the conservator's powers and duties;

(8) a general statement of the alleged incapacitated individual's assets, with an estimated value, and the source and amount of any income of the alleged incapacitated individual; and

(9) whether the alleged incapacitated individual has been rated incapable of handling his estate and monies on examination by the VA and, if so, shall state the name and address of the person to be notified on behalf of the VA.

(C) An alleged incapacitated individual seeking the appointment of a conservator or issuance of a protective order may file a summons and petition with the information specified in subsection (B).

(D) When more than one petition is pending in the same court, the proceedings may be consolidated.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 30, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 3, eff June 9, 2016. Formerly Code 1976 Sections 62-5-401 and 62-5-404, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-403 was titled Venue, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-401.

SECTION 62-5-403A. Service of summons and petition.

(A) As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve:

(1) a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual;

(2) a copy of the summons and petition upon all corespondents and the petitioner in any pending conservatorship or protective proceeding; and

(3) any affidavits or physicians' reports filed with the petition.

(B) If service is not accomplished within one hundred twenty days after the filing of the action, the court may dismiss the action without prejudice.

(C) The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received a notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of the proof of service, the court will appoint counsel. In appointing counsel, the court may consider the expressed preferences of the alleged incapacitated individual.

(D) The date for the alleged incapacitated individual to file a responsive pleading shall run from the later of the date the court appoints counsel for the alleged incapacitated individual or from the date the court receives notice of appearance by counsel selected by the alleged incapacitated individual.

HISTORY: 1986 Act No. 539, Section 1; 1997 Act No. 152, Section 23; 2010 Act No. 244, Section 32, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 4, eff June 9, 2016. Formerly Code 1976 Section 62-5-405, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-403B. Appointment of counsel and guardian ad litem.

(A) Except in cases governed by Section 62-5-431 relating to veterans benefits, upon receipt by the court of proof of service of the summons, petition, and notice of right to counsel upon the alleged incapacitated individual, the court shall:

(1) upon the expiration of fifteen days from the filing of the proof of service on the alleged incapacitated individual, if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual, appoint counsel;

(2) no later than thirty days from the filing of the proof of service on the alleged incapacitated individual, appoint:

(a) a guardian ad litem for the alleged incapacitated individual who has the duties and responsibilities set forth in Section 62-5-106;

(b) except in cases governed by Section 62-5-431 relating to benefits from the VA, one examiner, who must be a physician, to examine the alleged incapacitated individual and file a notarized report setting forth his evaluation of the condition of the alleged incapacitated individual in accordance with the provisions set forth in Section 62-5-403D. Unless the guardian ad litem or the alleged incapacitated individual objects, if a physician's notarized report is filed with the petition and served upon the alleged incapacitated individual and all interested parties with the petition, then the court may appoint that physician as the examiner. Upon the court's own motion or upon request of the initial examiner, the alleged incapacitated individual, or his guardian ad litem, the court may appoint a second examiner, who must be a physician, nurse, social worker, or psychologist. No appointment of examiners is required when the basis for the petition is that the individual is confined, detained, or missing.

(B) At any time during the proceeding, if requested by a guardian ad litem who is not an attorney, the court may appoint counsel for the guardian ad litem.

(C) At the attorney's discretion, the attorney for the alleged incapacitated individual may file a motion requesting that the court relieve him as the attorney if the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment in a protective proceeding. The attorney must file an affidavit in support of the motion. If the court is satisfied that the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment in a protective proceeding, then the court may relieve the attorney from his duties as attorney for the alleged incapacitated individual. If the former attorney requests to be appointed as the guardian ad litem, the court may appoint him to serve as the guardian ad litem. An attorney cannot serve as both an attorney and as a guardian ad litem in a protective proceeding.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 33, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 5, eff June 9, 2016. Formerly Code 1976 Section 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-403C. Hearing; waiver.

(A) As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties, the court shall hold a hearing on the merits of the petition. The alleged incapacitated individual, all parties, and any person who has filed a request or demand for notice must be given notice of the hearing. The alleged incapacitated individual is entitled to be present at the hearing, to conduct discovery, and to review all evidence bearing upon his condition. The hearing may be closed at the request of the alleged incapacitated individual or his guardian ad litem. The alleged incapacitated individual may waive notice of a hearing and his presence at the hearing. If there is an agreement among all the parties and the guardian ad litem's report indicates that a hearing would not further the interests of justice, the alleged incapacitated individual may waive his right to a hearing. If the alleged incapacitated individual waives his right to a hearing, the court may:

(1) require a formal hearing;

(2) require an informal proceeding as the court shall direct; or

(3) proceed without a hearing.

(B) If no formal hearing is held, the court shall issue a temporary consent order, which shall expire in thirty days. A protected person, under a temporary order, may request a formal hearing at any time during the thirty-day period. At the end of the thirty-day period, if the protected person has not requested a formal hearing, the court shall issue an order upon such terms agreed to by the parties and the guardian ad litem.

HISTORY: 1986 Act No. 539, Section 1; 1987 Act No. 171, Section 67; 1997 Act No. 152, Section 23; 2010 Act No. 244, Sections 32, 33, eff June 7, 2010; 2016 Act No. 278 (S.777), Sections 4, 5, eff June 9, 2016. Formerly Code 1976 Sections 62-5-405, 62-5-406, and 62-5-407, renumbered and amended by 2017 Act No. 87, Section 5.A, eff January 1, 2019.

SECTION 62-5-403D. Report of examiner.

(A) Each examiner shall complete a notarized report setting forth an evaluation of the condition of the alleged incapacitated individual. The original report must be filed with the court by the court's deadline, but not less than forty-eight hours prior to any hearing in which the report will be introduced as evidence. For good cause, the court may admit an examiner's report filed less than forty-eight hours prior to the hearing. All parties are entitled to review the reports, which are admissible as evidence. The evaluation shall contain, to the best of the examiner's knowledge and belief:

(1) a description of the nature and extent of the incapacity, including specific functional impairments;

(2) a diagnosis and assessment of the alleged incapacitated individual's mental and physical condition, including whether he is taking any medications that may affect his actions;

(3) an evaluation of the alleged incapacitated individual's ability to exercise the rights set forth in Section 62-5-407;

(4) when consistent with the scope of the examiner's license, an evaluation of the alleged incapacitated individual's ability to learn self-care skills, adaptive behavior, and social skills, and a prognosis for improvement;

(5) the date of all examinations and assessments upon which the report is based;

(6) the identity of the persons with whom the examiner met or consulted regarding the alleged incapacitated individual's mental or physical condition; and

(7) the signature and designation of the professional license held by the examiner.

(B) Unless otherwise directed by the court, the examiner may rely upon an examination conducted within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith, an examiner appointed by the court pursuant to Section 62-5-403B is immune from civil liability for any breach of patient confidentiality made in furtherance of his duties.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 33, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 5, eff June 9, 2016. Formerly Code 1976 Section 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-404. Protective proceedings; limited conservatorship.

(A) Upon a finding by clear and convincing evidence that a basis for an appointment or protective order exists with respect to a minor, the court has all those powers over the estate and affairs of the minor that are necessary for the best interests of the minor and members of his household.

(B) Upon finding by clear and convincing evidence that a basis for an appointment or protective order exists for reasons other than minority, the court has the powers over the incapacitated individual's real and personal property and financial affairs which the incapacitated individual could exercise if not under disability, except the power to make a will or amend a revocable trust.

(C) The court, on its own motion or on the petition or motion of the incapacitated individual or any other person, may limit the powers of a conservator. A limitation on the statutory power of a conservator must be endorsed upon the conservator's letters. A limitation may be removed, modified, or restored pursuant to Section 62-5-428. Notwithstanding the foregoing, the failure to endorse any limitation upon the conservator's letters shall not relieve the conservator of the limitation imposed by order of the court.

HISTORY: 1986 Act No. 539, Section 1; 2000 Act No. 398, Section 10. Formerly Code 1976 Sections 62-5-408 and 62-5-426, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-404 was titled Original petition for appointment or protective order, and had the following history: 1986 Act No. 539, Section 1; 2016 Act No. 278 (S.777), Section 3, eff June 9, 2016. See now, Code 1976 Section 62-5-403.

SECTION 62-5-405. Protective arrangements.

(A) When it is established in a formal proceeding that a basis exists for affecting a protective arrangement that concerns the property and affairs of a minor or an incapacitated individual, the court may:

(1) without appointing a conservator, authorize, direct, or ratify any provision within a protective arrangement that is in the best interest of the minor or incapacitated individual. A protective arrangement includes, but is not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; or the addition to or establishment of a suitable trust.

(2) authorize a conservator or a special conservator to exercise the power to perform the following acts:

(a) make gifts as the court, in its discretion, believes would be made by the protected person;

(b) convey or release the protected person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;

(c) create or amend revocable trusts or create irrevocable trusts of property of the protected person's estate that may extend beyond the protected person's disability or life, including the creation or funding of a special needs trust or a pooled fund trust for disabled individuals;

(d) fund trusts;

(e) exercise the protected person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender policies for their cash value;

(f) exercise the protected person's right to an elective share in the estate of a deceased spouse;

(g) renounce any interest by testate or intestate succession or by inter vivos transfer;

(h) ratify any such actions taken on behalf of the protected person.

(B) When acting as conservator or when approving a conservator's or special conservator's action, the court may consider the:

(1) wishes of the protected person;

(2) financial needs and legal obligations of the protected person and those who are dependent upon him for support;

(3) tax consequences;

(4) protected person's eligibility or potential eligibility for governmental assistance;

(5) protected person's previous pattern of giving or level of support;

(6) protected person's gifting and estate plan; and

(7) protected person's life expectancy and the probable duration of incapacity.

(C) Prior to issuing a protective order, the court shall consider whether appointment of a conservator is necessary. The court shall set forth specific findings upon which the court bases its order authorizing a protective arrangement. For purposes of issuing a consent order, counsel may consent on behalf of the protected person.

(D) The petitioner shall serve all heirs and devisees of the incapacitated individual whose identity and whereabouts are reasonably ascertainable with the petition seeking a protective order to perform one or more actions set forth in subsection (A)(2).

HISTORY: 1986 Act No. 539, Section 1; 2000 Act No. 398, Section 10. Formerly Code 1976 Sections 62-5-408 and 62-5-409, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-405 was titled Service of summons and petition; notice of hearing; waiver of notice by person to be protected, and had the following history: 1986 Act No. 539, Section 1; 1997 Act No. 152, Section 23; 2010 Act No. 244, Section 32, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 4, eff June 9, 2016. See now, Code 1976 Sections 62-5-403A and 62-5-403C.

SECTION 62-5-406. Reserved.

HISTORY: Former Section, titled Protective proceedings; request for notice; interested person, had the following history: 1986 Act No. 539, Section 1; 1987 Act No. 171, Section 67. Reserved by 2017 Act No. 87, Section 5.A, eff January 1, 2019. See now, Code 1976 Section 62-5-403C.

SECTION 62-5-407. Order of appointment; rights and powers of protected person.

(A) The court shall exercise its authority to encourage maximum self-reliance and independence of the protected person and issue orders only to the extent necessitated by the protected person's mental and adaptive limitations.

(B) The court shall set forth the rights and powers removed from the protected person. To the extent rights are not removed, they are retained by the protected person. Such rights and powers include the rights and powers to:

(1) 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 Section 62-5-422;

(2) make, modify, or terminate contracts; or

(3) bring or defend any action at law or equity.

(C) Nothing in this section shall prevent the protected person from notifying the court that he is being unjustly denied a right or privilege or requesting removal of the conservator or termination of the conservatorship pursuant to Section 62-5-428.

(D) Unless a court order specifies otherwise, the appointment of a conservator terminates the parts of the power of attorney that relate to matters within the scope of the conservatorship. The authority of an agent to make health care decisions or authority granted by advance directives regarding health care is not altered or changed by the appointment of a conservator.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-407 was titled Procedure concerning hearing and order on original petition, and had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 33, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 5, eff June 9, 2016. See now, Code 1976 Sections 62-5-402, 62-5-403B, 62-5-403C, and 62-5-403D.

SECTION 62-5-408. Who may be appointed conservator; priorities.

(A) In appointing a conservator, the court shall consider persons who are otherwise qualified in the following order of priority:

(1) a person previously appointed conservator, other than a temporary or emergency conservator, a guardian of property, or other like fiduciary for the protected person by another court of competent jurisdiction;

(2) a person nominated to serve as conservator by the alleged incapacitated individual if made prior to his incapacity, or if he is fourteen or more years of age and has sufficient mental capacity to make a reasoned choice;

(3) an agent designated in a power of attorney relating to the management of the alleged incapacitated individual's real or personal property, financial affairs, or assets;

(4) the spouse of the alleged incapacitated individual;

(5) an adult child of the alleged incapacitated individual;

(6) a parent of the alleged incapacitated individual;

(7) the person nearest in kinship to the alleged incapacitated individual who is willing to accept the appointment;

(8) a person with whom the alleged incapacitated individual resides outside of a health care facility, group home, homeless shelter, or prison;

(9) a person nominated by a health care facility caring for the alleged incapacitated individual; and

(10) any other person deemed suitable by the court.

(B) A person whose priority is based upon his status under subsections (A)(1), (3), (4), (5), (6), or (7) may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as conservator. The court, acting in the best interest of the alleged incapacitated individual, may decline to appoint a person having higher priority and appoint a person having lesser priority or no priority.

(C) Except when authorizing, directing, or ratifying the implementations of provisions of protective arrangements, pursuant to Section 62-5-405, a probate judge or an employee of the court shall not serve as a conservator of an estate of a protected person; except, a probate judge or an employee of the court may serve as a conservator of the estate of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.

HISTORY: 1986 Act No. 539, Section 1; 1995 Act No. 15, Section 4. Formerly Code 1976 Section 62-5-410, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-408 was titled Permissible court orders, and had the following history: 1986 Act No. 539, Section 1; 2000 Act No. 398, Section 10. See now, Code 1976 Sections 62-5-107, 62-5-108, 62-5-404, 62-5-405, 62-5-414, 62-5-422, and 62-5-423.

SECTION 62-5-409. Bond.

Except upon a finding of good cause, the court shall require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the conservator according to law and the court must approve all sureties. When bond is required, the conservator shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the protected person and of the income expected from the personal estate during the next calendar year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in Section 62-6-101, in a manner that prevents their unauthorized disposition. The court may authorize an unrestricted account to be used by the conservator for expenses on behalf of the protected person, and all activity in such an account must be reported by the conservator as required by the court. Upon application of the conservator or another interested person, or upon the court's own motion, the court may:

(1) order the creation, modification, or termination of an account;

(2) increase or reduce the amount of the bond;

(3) release sureties;

(4) dispense with security or securities; or

(5) permit the substitution of another bond with the same or different sureties.

HISTORY: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 7; 2010 Act No. 244, Section 34, eff June 7, 2010. Formerly Code 1976 Section 62-5-411, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-409 was titled Protective arrangements and single transactions authorized, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-405.

SECTION 62-5-410. Terms and requirements of bonds.

(A) The following requirements and provisions apply to any bond required under Section 62-5-409:

(1) Sureties must be jointly and severally liable with the conservator and with each other.

(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding must be delivered to the surety or mailed to him by registered or certified mail at his address that is listed with the court where the bond is filed or to his address as then known to the petitioner.

(3) After service of a summons and petition by a successor conservator, or upon the court's own motion, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator.

(4) Subject to applicable statutes of limitation, the bond of the conservator is not void after the first recovery, but may be proceeded against from time to time until the whole penalty is exhausted.

(B) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 35, eff June 7, 2010. Formerly Code 1976 Section 62-5-412, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-410 was titled Who may be appointed conservator; priorities, and had the following history: 1986 Act No. 539, Section 1; 1995 Act No. 15, Section 4. See now, Code 1976 Section 62-5-408.

SECTION 62-5-411. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the conservatorship estate. Notice of any proceeding must be given or waived pursuant to Sections 62-1-401 and 62-1-402.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-413, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-411 was titled Bond, and had the following history: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 7; 2010 Act No. 244, Section 34, eff June 7, 2010. See now, Code 1976 Section 62-5-409.

SECTION 62-5-412. Compensation and expenses.

Any conservator or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the protected person's estate, as determined by the court.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-414, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-412 was titled Terms and requirements of bonds, and had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 35, eff June 7, 2010. See now, Code 1976 Section 62-5-410.

SECTION 62-5-413. Informal request for relief.

(A) The protected person or another person interested in his welfare, may make an informal request for relief by submitting a written request to the court. The court may take such action as considered reasonable and appropriate to protect the protected person.

(B) A person making an informal request submits personally to the jurisdiction of the court.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-413 was titled Acceptance of appointment; consent to jurisdiction, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-411.

SECTION 62-5-414. General duty of conservator; financial plan.

(A) In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees.

(B) The court may require a conservator to file a financial plan for managing, expending, and distributing the assets of the protected person's estate. The plan must be tailored for the protected person and the conservator shall revise the plan as the needs and circumstances of the protected person require. The court shall approve, disapprove, or modify the plan in any proceeding as the court determines is necessary based upon the qualifications of the fiduciary. Nothing herein shall require the court to oversee or approve the conservator's investment choices. The conservator shall provide a copy of the plan to the protected person's guardian, if any, or the protected person.

(C) The conservator shall include in the financial plan:

(1) a statement of the extent to which the protected person may be able to develop or restore his ability to manage his property;

(2) an estimate of whether the assets are sufficient to meet the current and future needs of the protected person;

(3) projections of expenses and resources; and

(4) an estimate of how the financial plan may alter the overall estate plan of the protected person, including assets titled with rights of survivorship.

(D) In investing an estate, selecting assets of the estate for distribution, and using powers of revocation or withdrawal available for the use and benefit of the protected person or his dependents and exercisable by the conservator, a conservator shall take into account any estate plan of the protected person known to the conservator and is entitled to examine the protected person's will or revocable trust and any contract, transfer or joint ownership arrangement with the provisions for payment or transfer of benefits at his death to others which the protected person may have originated.

HISTORY: 1986 Act No. 539, Section 1; 2000 Act No. 398 Section 10; 2005 Act No. 66, Section 7. Formerly Code 1976 Sections 62-5-408 and 62-5-417, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-414 was titled Compensation and expenses, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Sections 62-5-105 and 62-5-412.

SECTION 62-5-415. Inventory and records.

Within thirty days of appointment, the conservator shall prepare and file with the court a complete inventory of the estate of the protected person, together with the conservator's oath or affirmation that it is complete and accurate to the best of the conservator's knowledge, information, and belief. The court may grant an extension to file the inventory. The conservator shall provide a copy of the inventory to the protected person's guardian, if any, and any other persons the court may direct.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-418, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-415 was titled Death, resignation, or removal of conservator, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-428.

SECTION 62-5-416. Reporting requirements.

(A) A conservator shall report to the court regarding his administration of the estate annually and upon the conservator's resignation or removal, the termination of the protected person's minority or disability, the death of the protected person, and at other times as the court directs.

(B) The report must include:

(1) an accounting of receipts and disbursements for the accounting period;

(2) a list of the assets of the estate under the conservator's control and the location of the assets;

(3) any recommendations for changes in the financial plan; and

(4) the conservator's opinion regarding the continued need for the conservatorship and the scope of the conservatorship.

(C) The conservator shall provide a copy of the report to the protected person if he has attained the age of fourteen years and has sufficient mental capacity to understand the report, and to any parent with whom the protected person resides or guardian of the protected person.

(D) The court may appoint a guardian ad litem to review a report or plan, interview the protected person or conservator, and make any other investigation the court directs.

(E) The court may order a conservator to submit the assets of the estate to an appropriate examination in any manner directed by the court.

(F) The conservator or the protected person may petition in formal proceedings pursuant to Section 62-5-428 for an order:

(1) allowing or requiring an intermediate or final report of a conservator and adjudicating liabilities disclosed in the accountings; or

(2) allowing or requiring a final report and adjudicating unsettled liabilities relating to the conservatorship.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 37, eff June 7, 2010. Formerly Code 1976 Section 62-5-419, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-416 was titled Requests for orders subsequent to appointment; service of petition and summons; denial of application, and had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 36, eff June 7, 2010. See now, Code 1976 Section 62-5-428.

SECTION 62-5-417. Conservators; title by appointment.

The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property previously held by custodians or agents, unless otherwise provided in the court's order. Neither the appointment of a conservator nor the establishment of a trust in accordance with Article 6, Chapter 6, Title 44 is a transfer or alienation by the protected person of his rights or interest, within the meaning of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest.

HISTORY: 1986 Act No. 539, Section 1; 1993 Act No. 164, Part II, Section 74B. Formerly Code 1976 Section 62-5-420, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-417 was titled General duty of conservator, and had the following history: 1986 Act No. 539, Section 1; 2005 Act No. 66, Section 7. See now, Code 1976 Section 62-5-414.

SECTION 62-5-418. Fiduciary letters of conservatorship.

(A) Fiduciary letters of conservatorship are evidence of transfer of all title of the assets of a protected person to the conservator unless otherwise provided in the court's order. An order terminating a conservatorship transfers all assets of the estate from the conservator to the protected person or his successors. Fiduciary letters and terminations of appointment must 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 counties of this State or other jurisdictions where the protected person owns real estate.

(B) Conservators may file fiduciary letters of conservatorship with credit reporting agencies or other entities or persons, as appropriate.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-421, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-418 was titled Inventory and records, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-415.

SECTION 62-5-419. Sale or encumbrance involving conflict of interest.

Pursuant to the procedures set forth in Section 62-5-428(B), the conservator shall obtain the court's prior approval of any transaction that is affected by a conflict of interest, including, but not limited to, a sale or encumbrance of assets of the protected person to or in favor of a conservator; an immediate family member of a conservator; an agent or attorney of conservator; or any corporation, trust, or other entity in which the conservator has a substantial beneficial interest.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-422, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-419 was titled Accounts, and had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 37, eff June 7, 2010. See now, Code 1976 Section 62-5-416.

SECTION 62-5-420. Persons dealing with conservators; protection.

A person, who in good faith either assists a conservator or deals with him for value in any transaction, other than those requiring a court order as required in this part is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 62-5-404 or Section 62-5-428 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. This protection extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. This protection is not a substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-423, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Code Commissioner's Note

At the direction of the Code Commissioner, "Section 62-5-404 or Section 62-5-428" was substituted for "Section 62-5-424" to correct a scrivener's error.

Editor's Note

Prior Laws: Former Section 62-5-420 was titled Conservators; title by appointment, and had the following history: 1986 Act No. 539, Section 1; 1993 Act No. 164, Part II, Section 74B. See now, Code 1976 Section 62-5-417.

SECTION 62-5-421. Interest of protected person not transferable or assignable.

(A) Except as otherwise provided in subsections (B) and (C), the interest of a protected person in property vested in a conservator is not transferable or assignable by the protected person.

(B) A person without knowledge of the conservatorship who in good faith and for security or substantially equivalent value receives delivery from a protected person of tangible personal property of a type normally transferred by delivery of possession is protected.

(C) A third party who deals with the protected person in good faith with respect to property vested in a conservator is entitled to any protection provided by law.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-421 was titled Recording of conservator's letters, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-418.

SECTION 62-5-422. Powers of conservator in administration.

(A) Except as otherwise qualified or limited by court order, a conservator, acting reasonably in the best interest of the protected person and in efforts to accomplish the purpose for which he was appointed, may act without court approval to:

(1) invest and reinvest funds of the estate as would a trustee;

(2) collect, hold, and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and retain assets even though they include an asset in which the conservator personally is interested;

(3) receive additions to the estate;

(4) deposit estate funds in a financial institution including a financial institution operated by the conservator;

(5) make ordinary or extraordinary repairs or alterations to buildings or other structures, demolish, improve, raze or erect existing or new party walls or buildings;

(6) vote a security in person or by general or limited proxy;

(7) pay calls, assessments, and other sums chargeable or accruing against or on account of securities;

(8) sell or exercise stock subscription or conversion rights; consent directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise whose stock or shares are publicly held;

(9) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for an act of the nominee in connection with the stock so held;

(10) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;

(11) borrow money to be repaid from estate assets or otherwise; advance money for the protection of the estate or the protected person and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of estate assets; and the conservator shall have a lien on the estate as against the protected person for advances so made;

(12) pay or contest a claim except as limited by Section 62-5-433; settle a claim by or against the estate of the protected person by compromise, arbitration, or otherwise except as limited by Section 62-5-433; and release, in whole or in part, a claim belonging to the estate to the extent that the claim is uncollectible;

(13) pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate;

(14) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;

(15) pay a sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the protected person or the distributee or by paying the sum for the use of the protected person or the distributee either to his guardian or, if none, to a relative or other person with custody of his person;

(16) employ persons including attorneys, auditors, investment advisors, or agents even though they are associated with the conservator to advise or assist the conservator in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform an act of administration, whether or not discretionary;

(17) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties;

(18) execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the conservator;

(19) review the originals and obtain photocopies of the protected person's fully executed estate planning documents, including those documents referenced in Section 62-5-425;

(20) enter into a lease of a residence for the protected person for a term not exceeding one year;

(21) access, monitor, suspend, or terminate the protected person's digital assets and accounts in electronic format, including the power to obtain information as to the protected person's account number, user name and agreement, online tools, addresses, or other unique subscriber or account identifiers, including passwords, and any catalogue of electronic communications considered necessary by the conservator for administration of the conservatorship, consistent with the provisions of Part 10, Article 2, Title 62; and

(22) exercise the protected person's rights as trust beneficiary to the extent provided in Article 7, Title 62.

(B) A conservator acting reasonably and in the best interest of the protected person to accomplish the purpose for which he was appointed, may file an application with the court pursuant to Section 62-5-428(A) requesting authority to:

(1) continue or participate in the operation of any unincorporated business or other enterprise;

(2) acquire an undivided interest in an estate asset in which the conservator, in a fiduciary capacity, holds an undivided interest;

(3) buy and sell an estate asset, including land in this State or in another jurisdiction for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(4) subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;

(5) enter into a lease as lessor or lessee, other than a residential lease described in Section 62-5-422(A);

(6) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(7) grant an option involving disposition of an estate asset or to take an option for the acquisition of any asset;

(8) undertake another act considered necessary or reasonable by the conservator and the court for the preservation and management of the estate;

(9) make charitable gifts pursuant to the protected person's gifting and estate plan if the estate is sufficient to provide for the health, education, support, and maintenance of the protected person and his dependents;

(10) encumber, mortgage, or pledge an asset for a term extending within or beyond the term of the conservatorship;

(11) pay a reasonable fee to the conservator, special conservator, guardian ad litem, attorney, examiner, or physician for services rendered;

(12) adopt an appropriate budget for routine expenditures of the protected person;

(13) reimburse the conservator for monies paid to or on behalf of the protected person;

(14) exercise or release the protected person's powers as personal representative, custodian for minors, conservator, or donee of a power of appointment; and

(15) exercise options to purchase securities or other property.

(C) A conservator may request instructions concerning his fiduciary responsibility and may file an application for ratification of actions taken in good faith or for the expenditure of funds of the protected person; the court may approve or deny an application pursuant to subsection (B) above, or may require the commencement of formal proceedings.

(D) The attorney-client privilege between the protected person and the protected person's counsel must not be removed by the appointment of a conservator.

HISTORY: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 8; 1997 Act No. 152, Section 24; 2000 Act No. 398, Section 10. Formerly Code 1976 Sections 62-5-408 and 62-5-424, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-422 was titled Sale, encumbrance, or transaction involving conflict of interest; voidable; exceptions., and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-419.

SECTION 62-5-423. Distributive duties and powers of conservator.

(A) A conservator may expend or distribute sums from the estate without further court authorization for the health, education, maintenance, and support of the protected person and his dependents in accordance with the following principles:

(1) The expenditures must be consistent with a prior court-approved financial plan.

(2) The conservator shall consider recommendations relating to the appropriate standard of health, education, maintenance, and support for the protected person made by a parent or guardian. The conservator may not be surcharged for sums paid to persons or organizations furnishing health, education, maintenance, or support to the protected person pursuant to the recommendations of a parent or guardian unless the conservator has actual knowledge that the parent or guardian is deriving personal financial benefit from these payments, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.

(3) The conservator shall consider:

(a) the size of the estate, the probable duration of the conservatorship, and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate that has been conserved for him;

(b) the accustomed standard of living of the protected person and members of his household; and

(c) other funds or sources used for the support of the protected person.

(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person, as reimbursement for expenditures or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.

(5) If the conservator determines that it is reasonably necessary to supply funds to the protected person, the conservator may provide these funds to the protected person through reasonable financial methods, including, but not limited to, checks, currency, debit card, or allowance. All funds so provided must be reported on the accountings as required by the court.

(B) After paying outstanding expenses of administration and any claims approved by the court, after meeting the requirements of Section 62-5-416, and after complying with any additional requirements established by the court, the conservator shall pay over and distribute all remaining funds and properties as follows:

(1) when a person who is incapacitated solely by reason of minority attains the age of eighteen or is emancipated by a court order, to the now-adult or emancipated protected person as soon as practical, unless a:

(a) protective order has been issued because the protected person is incapacitated; or

(b) protective proceeding or other petition with regard to the protected person is pending; a protected person under the age of eighteen who is married shall remain a minor for purposes of this subsection until attaining the age of eighteen or being emancipated by court order;

(2) upon an adjudication restoring capacity, to the former protected person as soon as practical;

(3) upon a determination by the court that the protected person's estate has a net aggregate amount of less than fifteen thousand dollars to or for the protected person as soon as practical pursuant to Section 62-5-103; or

(4) if a protected person dies, to the protected person's duly appointed personal representative or as ordered by the court.

HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 521, Section 83; 1997 Act No. 152, Section 25; 2000 Act No. 398, Section 10. Formerly Code 1976 Sections 62-5-408 and 62-5-425, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-423 was titled Persons dealing with conservators; protection, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-420.

SECTION 62-5-424. Reserved.

HISTORY: Former Section, titled Powers of conservator in administration, had the following history: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 8; 1997 Act No. 152, Section 24. Reserved by 2017 Act No. 87, Section 5.A, eff January 1, 2019. See now, Code 1976 Section 62-5-422.

SECTION 62-5-425. Preservation of estate plan.

In investment and distribution of estate assets or in the use or withdrawal of a power of revocation, and in titling accounts, the conservator and the court must consider any:

(A) known estate plan, including a revocable trust having the protected person as settlor; or

(B) instrument, including, but not limited to, a contract, transfer, or joint ownership arrangement originated by the protected person which provides a benefit at death to another as referenced in Section 62-5-422.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-427, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-425 was titled Distributive duties and powers of conservator, and had the following history: 1986 Act No. 539, Section 1; 1990 Act No. 521, Section 83; 1997 Act No. 152, Section 25. See now, Code 1976 Section 62-5-423.

SECTION 62-5-426. Claims against protected person.

(A) The probate court has exclusive jurisdiction over claims against the protected person arising from the internal affairs of the conservatorship which may be commenced in the following manner:

(1) A claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed.

(2) A claim is considered presented on the receipt of the written statement of claim by the conservator.

(3) Every claim that is disallowed in whole or part by the conservator is barred so far as not allowed unless the claimant files and properly serves a summons and petition for allowance no later than thirty days after the mailing of the notice of disallowance or partial disallowance if the notice warns the claimant of the impending bar.

(B) Except as limited by Section 62-5-433, the probate court has jurisdiction concurrent with the circuit court in matters involving a request for a judicial determination as to the external affairs of a conservatorship, including actions by or against creditors or debtors of conservatorships and other actions or proceedings involving conservators and third parties. If a creditor has notice of the appointment of a conservator, all pleadings must be served by or on the conservator. Within thirty days after the conservator files, or becomes aware of, any court action in which the protected person is a party, the conservator must notify the court where the conservatorship is being administered if the outcome may constitute a claim against the estate. The conservator may request instructions from the court as necessary.

(C) If it appears that the conservatorship assets are likely to be exhausted before all existing claims are paid, preference must be given to prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration.

HISTORY: 1986 Act No. 539, Section 1; 1988 Act No. 659, Section 6; 1997 Act No. 152, Section 26; 2010 Act No. 244, Sections 31, 38, eff June 7, 2010. Formerly Code 1976 Sections 62-5-402 and 62-5-428, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-426 was titled Enlargement or limitation of powers of conservator, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Sections 62-5-404 and 62-5-428.

SECTION 62-5-427. Individual liability of conservator.

(A) Unless otherwise provided in a contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity during the administration of the estate unless he fails to reveal his representative capacity and fails to identify the estate in the contract.

(B) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed during the administration of the estate only if he is personally at fault.

(C) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed during the administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable.

(D) A question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, indemnification, or other appropriate proceeding.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-429, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-427 was titled Preservation of estate plan, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-425.

SECTION 62-5-428. Actions for requests subsequent to appointment; procedures.

(A)(1) Upon filing of an application with the appointing court, the protected person, the conservator, or interested person may request an order:

(a) requiring, increasing, or reducing bond or security;

(b) requiring an accounting;

(c) terminating a conservatorship when the estate has a net aggregate amount of less than fifteen thousand dollars;

(d) terminating a conservatorship and approving a final accounting at the death of the protected person;

(e) terminating a conservatorship and approving a final accounting when a protected person who is incapacitated solely by reason of minority attains the age of eighteen or is emancipated by court order;

(f) approving payment of the protected person's funeral expenses;

(g) accepting the resignation of or removing the conservator for good cause and appointing a temporary or successor conservator, if necessary;

(h) adjudicating the restoration of the protected person's capacity.

(2) The court may approve or deny the application without notice, require notice to such persons as the court directs, or may require the commencement of a formal proceeding pursuant to Section 62-5-428(B).

(3) If the court determines that the protected person's estate has a net aggregate amount of less than fifteen thousand dollars, the court may in its discretion, terminate the conservatorship.

(4) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into the conservator's possession, inform the personal representative or a beneficiary named in the will of the delivery, and retain the estate for delivery to a duly appointed personal representative of the deceased protected person or other persons entitled to delivery. If, after thirty days from the death of the protected person, no person has been appointed personal representative and no application or petition for appointment is pending in the court, the conservator may apply for appointment as personal representative. A person must not be disqualified as a personal representative of a deceased protected person solely by reason of his having been appointed or acting as conservator for that protected person.

(B)(1) Upon filing of a summons and petition with the appointing court, the protected person, the conservator, or interested person may request an order:

(a) terminating a conservatorship;

(b) requiring distributions from the protected person's estate after the conservator has denied the request;

(c) upon the death of a conservator, appointing a successor conservator, if necessary;

(d) limiting or expanding the conservatorship;

(e) authorizing a transaction involving a conflict of interest pursuant to Section 62-5-419;

(f) reviewing the denial of an application pursuant to Section 62-5-422(C); or

(g) granting other appropriate relief.

(2) The procedure for obtaining orders subsequent to appointment is as follows:

(a) The summons and petition shall state the relief sought and the reasons the relief is necessary and must be served upon the protected person; the conservator; the guardian, if any; the spouse; adult children; and parents of the protected person whose whereabouts are reasonably ascertainable; and, if there is no spouse, adult child, or parent, any person who has equal or greater priority for appointment; any person with whom the protected person resides outside of a health care facility, group home, homeless shelter, or prison; and the Secretary of the Department of Veterans Affairs if the conservatorship is for the purpose of receiving veterans benefits.

(b) After filing and service of the summons and petition, the court may appoint a guardian ad litem and may appoint counsel for the protected person, unless the protected person has private counsel, and such examiners as are needed to evaluate and confirm the allegations of the petition.

(c) As soon as the interests of justice may allow, but after the time for response to the petition has elapsed as to all parties served, the court shall hold a hearing on the merits of the petition. The protected person and all parties not in default must be given notice of the hearing. If all parties not in default waive a hearing, the court may issue a consent order.

(d) The court may issue interim orders, for a period not to exceed ninety days, until a hearing is held and a final order is issued.

(C) The court may specify a minimum period, not exceeding one year, during which no application or petition for readjudication may be filed without leave of court. Subject to this restriction, the protected person or the conservator may petition the court for a termination of incapacity or of the protective order, which must be proved by a preponderance of the evidence.

(D) An attorney who has been asked by the protected person to represent him in an action under this section may file a motion with the court for permission to represent the protected person.

HISTORY: 1986 Act No. 539, Section 1; 2008 Act No. 303, Section 1, eff June 11, 2008; 2010 Act No. 244, Section 36, 39, eff June 7, 2010. Formerly Code 1976 Sections 62-5-106, 62-5-415, 62-5-416, 62-5-426, and 62-5-430, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-428 was titled Claims against protected person; enforcement, and had the following history: 1986 Act No. 539, Section 1; 1997 Act No. 152, Section 26; 2010 Act No. 244, Section 38, eff June 7, 2010. See now, Code 1976 Section 62-5-426.

SECTION 62-5-429. Payment of debt and delivery of property to foreign conservator without local proceedings.

(A) A person indebted to a protected person, or having possession of property of or an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating that:

(1) no protective proceeding relating to the protected person is pending in this State; and

(2) the foreign conservator is entitled to payment or to receive delivery.

(B) If the person to whom the affidavit is presented is not aware of a protective proceeding pending in this State, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-431, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-429 was titled Individual liability of conservator, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-427.

SECTION 62-5-430. Foreign conservator; proof of authority; bond; powers.

(A) If a conservator has not been appointed in this State and a petition for a protective order is not pending in this State, a conservator appointed in another state, after giving notice to the appointing court of an intent to register, may register the protective order in this State by filing as a foreign judgment in the court, in any appropriate county of this State certified copies of the order and letters of office, and any bond. The court shall treat this as the filing of authenticated or certified records and shall charge fees set forth in Section 8-21-770 for the filing of these documents. The court will then issue a certificate of filing as proof of the filing. The conservator shall file the certificate of filing, along with a copy of the letters of office, in the office of the register of deeds of that county.

(B) Upon registration of a protective order from another state, the conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this State, subject to any conditions imposed upon nonresident parties.

(C) A court of this State may grant any relief available under this article and other laws of this State to enforce a registered order.

HISTORY: 1986 Act No. 539, Section 1. Formerly Code 1976 Section 62-5-432, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-430 was titled Proceeding to terminate conservatorship; application; notice, and had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 39, eff June 7, 2010 See now, Code 1976 Section 62-5-428.

SECTION 62-5-431. Payment of benefits from U.S. Department of Veterans Affairs to a minor or an incapacitated person; definitions.

(A) For purposes of this section:

(1) "Estate" and "income" include only monies received from the VA, all real and personal property acquired in whole or in part with these monies, and all earnings, interest, and profits.

(2) "Benefits" means all monies payable by the United States through the VA.

(3) "Secretary" means the Secretary of the United States Department of Veterans Affairs (VA) or his successor.

(4) "Protected person" means a beneficiary of the VA.

(5) "Conservator" has the same meaning as provided in Section 62-1-201 but only as to benefits from the VA.

(B) Whenever, pursuant to a law of the United States or regulation of the VA, the Secretary requires that a conservator be appointed for a protected person before payment of benefits, the appointment must be made in the manner provided in this part, except to the extent this section requires otherwise. The petition shall show that the person to be protected has been rated incapable of handling his estate and monies on examination by the VA in accordance with the laws and regulations governing the VA.

(C) When a petition is filed for the appointment of a conservator and a certificate of the secretary or his representative is filed setting forth the fact that the appointment of a conservator is a condition precedent to the payment of benefits due the protected person by the VA, the certificate is prima facie evidence of the necessity for the appointment and no examiner's report is required.

(D) Except as provided or as otherwise permitted by the VA, a person may not serve as conservator of a protected person if the proposed conservator at that time is acting simultaneously as conservator for five protected persons. Upon presentation of a petition by an attorney for the VA alleging that a person is serving simultaneously as a conservator for more than five protected persons and requesting that person's termination as a conservator for that reason, upon proof substantiating the petition, the court shall restrain that person from acting as a conservator for the affected protected person and shall require a final accounting from the conservator. After the appointment of a successor conservator if one is warranted under the circumstances, the court shall terminate the appointment of the person as conservator in all requested cases. The limitations of this section do not apply when the conservator is a bank or trust company.

(E) The conservator shall file an inventory, accountings, exhibits or other pleadings with the court and with the VA as provided by law or VA regulation. The conservator is required to furnish the inventory and accountings to the VA.

(F) Every conservator shall invest the surplus funds in his protected person's estate in securities, or otherwise, as allowed by law, and in which the conservator has no interest. These funds may be invested, without prior court authorization, in direct interest-bearing obligations of this State or of the United States and in obligations in which the interest and principal are both unconditionally guaranteed by the United States Government.

(G) Whenever a copy of a public record is required by the VA to be used in determining the eligibility of a person to participate in benefits made available by the VA, the official charged with the custody of the public record shall provide a certified copy of the record, without charge, to an applicant for the benefits, a person acting on his behalf, or a representative of the VA.

(H) With regard to a minor or a mentally incompetent person to whom, or on whose behalf, benefits have been paid or are payable by the VA, the secretary is and must be a necessary party in a:

(1) proceeding brought for the appointment, confirmation, recognition, or removal of a conservator;

(2) suit or other proceeding, whether formal or informal, arising out of the administration of the person's estate; and

(3) proceeding which is for the removal of the disability of minority or of mental incompetency of the person.

(I) In a case or proceeding involving property or funds of a protected person not derived from the VA, the VA is not a necessary party, but may be an interested party in the proceedings.

(J) For services as conservator of funds paid from the VA, a conservator may be paid an amount not to exceed five percent of the income of the protected person during any year. If extraordinary services are rendered by a conservator, the court may, upon application of the conservator and notice to the VA, authorize additional compensation payable from the estate of the protected person. No compensation is allowed on the corpus of an estate derived from payments from the VA. The conservator may be allowed reimbursement from the estate of the protected person for reasonable premiums paid to a corporate surety upon the bond furnished by the conservator.

HISTORY: 2016 Act No. 278 (S.777), Section 1, eff June 9, 2016. Formerly Code 1976 Section 62-5-436, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-431 was titled Payment of debt and delivery of property to foreign conservator without local proceedings, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-429.

SECTION 62-5-432. Special needs trust.

(A) The court has authority to create and establish a special needs trust for an incapacitated individual in compliance with 42 U.S.C. Section 1396p(d)(4)(A), as amended, and to order the placement of the incapacitated individual's funds into such a trust or into a pooled trust in compliance with 42 U.S.C. Section 1396p(d)(4)(C), as amended, for the benefit of incapacitated individuals under its authority to issue protective orders pursuant to the procedure set forth in Section 62-5-401, et seq.

(B) In the case of a disabled minor, the court has authority to create and establish a special needs trust in compliance with 42 U.S.C. Section 1396p(d)(4)(A), as amended, if the court determines it is in the disabled minor's best interest. The court also has the authority to order the placement of the minor's funds into a special needs trust or into a pooled trust in compliance with 42 U.S.C. Section 1396p(d)(4)(C), as amended, for the benefit of a minor under its authority to implement provisions of protective orders pursuant to the procedure set forth in Section 62-5-401, et seq., even though the terms of the trust extend beyond the age of majority.

HISTORY: 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-432 was titled Foreign conservator; proof of authority; bond; powers, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-430.

SECTION 62-5-433. Definitions; procedures for settlement of claims in favor of or against minors or incapacitated persons.

(A)(1) For purposes of this section and for any claim exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated individual, "court" means the circuit court of the county in which the minor or incapacitated individual resides or the circuit court in the county in which the suit is pending. For purposes of this section and for any claim not exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated individual, "court" means either the circuit court or the probate court of the county in which the minor or incapacitated individual resides or the circuit court or probate court in the county in which the suit is pending.

(2) "Claim" means the net or actual amount accruing to or paid by the minor or incapacitated individual as a result of the settlement.

(3) "Petitioner" means either a conservator appointed by the court for the minor or incapacitated individual or the guardian or guardian ad litem of the minor or incapacitated individual if a conservator has not been appointed.

(B) The settlement of a claim over twenty-five thousand dollars in favor of or against a minor or incapacitated individual for the payment of money or the possession of personal property must be effected on his behalf in the following manner:

(1) The petitioner must file with the court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed twenty-five thousand dollars, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated individual.

(2) If, upon consideration of the petition and after hearing the testimony as it may require concerning the matter, the court concludes that the proposed settlement is proper and in the best interests of the minor or incapacitated individual, the court shall issue its order approving the settlement and authorizing the petitioner to consummate it and, if the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated individual, to receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated individual.

(3) The order authorizing the settlement must require that payment or delivery of the money or personal property be made through the conservator. If a conservator has not been appointed, the petitioner, upon receiving the money or personal property, shall pay and deliver it to the court pending the appointment and qualification of a duly appointed conservator. If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.

(C) The settlement of a claim that does not exceed twenty-five thousand dollars in favor of or against a minor or incapacitated individual for the payment of money or the possession of personal property may be effected in any of the following manners:

(1) If a conservator has been appointed, he may settle the claim without court authorization or confirmation, as provided in Section 62-5-424, or he may petition the court for approval, as provided in items (1), (2), and (3) of subsection (B). If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated individual, the conservator shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated individual.

(2) If a conservator has not been appointed, the guardian or guardian ad litem must petition the court for approval of the settlement, as provided in items (1) and (2) of subsection (B), and without the appointment of a conservator. The payment or delivery of money or personal property to or for a minor or incapacitated individual must be made in accordance with Section 62-5-103. If a party subject to the court order fails or refuses to pay the money or deliver the personal property, as required by the order and in accordance with Section 62-5-103, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.

(D) The settlement of a claim that does not exceed two thousand five hundred dollars in favor of or against a minor or incapacitated individual for the payment of money or the possession of personal property may be effected by the parent or guardian of the minor or incapacitated individual without court approval of the settlement and without the appointment of a conservator. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated individual, the parent or guardian shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated individual. The payment or delivery of money or personal property to or for a minor or incapacitated individual must be made in accordance with Section 62-5-103.

HISTORY: 1988 Act No. 659, Section 9; 1990 Act No. 521, Sections 84-86; 2000 Act No. 398, Section 1; 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

SECTION 62-5-434. Omitted.

HISTORY: Former Section, titled Settlement of claims involving minors completed between July 1, 1987, and September 24, 1987, presumed valid, had the following history: 1988 Act No. 659, Section 21. Omitted by 2017 Act No. 87, Section 5.A, eff January 1, 2019.

SECTION 62-5-435. Omitted.

HISTORY: Former Section, titled Liability for approving or completing settlement, had the following history: 1988 Act No. 659, Section 21(A) (last sentence). Omitted by 2017 Act No. 87, Section 5.A, eff January 1, 2019.

SECTION 62-5-436. Omitted.

HISTORY: Former Section, titled Payment of benefits from U.S. Department of Veterans Affairs to a minor or an incapacitated person; definitions, had the following history: 2016 Act No. 278 (S.777), Section 1, eff June 9, 2016. Omitted by 2017 Act No. 87, Section 5.A, eff January 1, 2019. See now, Code 1976 Section 62-5-431.

Part 5

Health Care Powers of Attorney

SECTION 62-5-500. Short title.

This part may be cited as the "South Carolina Statutory Health Care Power of Attorney Act".

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-501. Definitions.

As used in this part:

(1) "Agent" or "health care agent" means an individual designated in a health care power of attorney to make health care decisions on behalf of a principal.

(2) "Declaration of a desire for a natural death" or "declaration" means a document executed in accordance with the South Carolina Death with Dignity Act or a similar document executed in accordance with the law of another state.

(3) "Health care" means a procedure to diagnose or treat a human disease, ailment, defect, abnormality, or complaint, whether of physical or mental origin. It also includes the provision of intermediate or skilled nursing care; services for the rehabilitation of injured, disabled, or sick persons; and placement in or removal from a facility that provides these forms of care.

(4) "Health care power of attorney" means a durable power of attorney executed in accordance with this part.

(5) "Health care provider" means a person, health care facility, organization, or corporation licensed, certified, or otherwise authorized or permitted by the laws of this State to administer health care.

(6) "Life-sustaining procedure" means a medical procedure or intervention that serves only to prolong the dying process. Life-sustaining procedures do not include the administration of medication or other treatment for comfort care or alleviation of pain. The principal shall indicate in the health care power of attorney whether the provision of nutrition and hydration through medically or surgically implanted tubes is desired.

(7) "Permanent unconsciousness" means a medical diagnosis, consistent with accepted standards of medical practice, that a person is in a persistent vegetative state or some other irreversible condition in which the person has no neocortical functioning, but only involuntary vegetative or primitive reflex functions controlled by the brain stem.

(8) "Nursing care provider" means a nursing care facility or an employee of the facility.

(9) "Principal" means an individual who executes a health care power of attorney. A principal must be eighteen years of age or older and of sound mind.

(10) "Separated" means that the principal and his or her spouse are separated pursuant to one of the following:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement;

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

Editor's Note

Prior Laws: Former Section 62-5-501 was titled When power of attorney not affected by disability, and had the following history: 1986 Act No. 539, Section 1; 1990 Act No. 483, Section 5; 1990 Act No. 521, Section 104; 1992 Act No. 256, Section 1; 1992 Act No. 306, Sections 5, 6; 1997 Act No. 152, Section 27; 2002 Act No. 362, Section 9; 2010 Act No. 244, Section 40, eff June 7, 2010. See now, 1976 Code Section 62-8-101 et seq.

SECTION 62-5-502. Health care power of attorney is a durable power of attorney; applicability of part.

(a) A health care power of attorney is a durable power of attorney. Statutory provisions that refer to a durable power of attorney or judicial interpretations of the law relating to durable powers of attorney apply to a health care power of attorney to the extent that they are not inconsistent with this part.

(b) This section does not affect the right of a person to execute a durable power of attorney relating to health care pursuant to other provisions of law but which does not conform to the requirements of this section. If a durable power of attorney for health care executed under this part or under the laws of another state does not conform to the requirements of this section, the provisions of this section do not apply to it. However, a court is not precluded from determining that the law applicable to nonconforming durable powers of attorney for health care is the same as the law set forth in this section for health care powers of attorney.

(c) To the extent not inconsistent with this part, the provisions of the Adult Health Care Consent Act apply to the making of decisions by a health care agent and the implementation of those decisions by health care providers.

(d) In determining the effectiveness of a health care power of attorney, mental incompetence is to be determined according to the standards and procedures for inability to consent pursuant to Section 44-66-20(8), except that certification of mental incompetence by the agent may be substituted for certification by a second physician. If the certifying physician states that the principal's mental incompetence precludes the principal from making all health care decisions or all decisions concerning certain categories of health care, and that the principal's mental incompetence is permanent or of extended duration, no further certification is necessary in regard to the stated categories of health care decisions during the stated duration of mental incompetence unless the agent or the attending physician believes the principal may have regained capacity.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

Editor's Note

Prior Laws: Former Section 62-5-502 was titled Other powers of attorney not revoked until notice of death or disability, and had the following history: 1986 Act No. 539, Section 1. See now, 1976 Code Section 62-8-101 et seq.

SECTION 62-5-503. Requirements for health care power of attorney.

(a) A health care power of attorney must:

(1) be substantially in the form set forth in Section 62-5-504;

(2) be dated and signed by the principal or in the principal's name by another person in the principal's presence and by his direction;

(3) be signed by at least two persons, each of whom witnessed either the signing of the health care power of attorney or the principal's acknowledgment of his signature on the health care power of attorney. Each witness must state in a declaration as set forth in Section 62-5-504 that, at the time of the execution of the health care power of attorney, to the extent the witness has knowledge, the witness is not related to the principal by blood, marriage, or adoption, either as a spouse, lineal ancestor, descendant of the parents of the principal, or spouse of any of them; not directly financially responsible for the principal's medical care; not entitled to a portion of the principal's estate upon his decease under a will of the principal then existing or as an heir by intestate succession; not a beneficiary of a life insurance policy of the principal; and not appointed as health care agent or successor health care agent in the health care power of attorney; and that no more than one witness is an employee of a health care facility in which the principal is a patient, no witness is the attending physician or an employee of the attending physician, or no witness has a claim against the principal's estate upon his decease;

(4) state the name and address of the agent. A health care agent must be an individual who is eighteen years of age or older and of sound mind. A health care agent may not be a health care provider, or an employee of a provider, with whom the principal has a provider-patient relationship at the time the health care power of attorney is executed, or an employee of a nursing care facility in which the principal resides, or a spouse of the health care provider or employee, unless the health care provider, employee, or spouse is a relative of the principal.

(b) The validity of a health care power of attorney is not affected by the principal's failure to initial any of the choices provided in Section 4, 6, or 7 of the Health Care Power of Attorney form or to name successor agents. If the principal fails to indicate either of the statements in Section 7 concerning provision of artificial nutrition and hydration, the agent does not have authority to direct that nutrition and hydration necessary for comfort care or alleviation of pain be withheld or withdrawn.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

Editor's Note

Prior Laws: Former Section 62-5-503 was titled Jurisdiction, and had the following history: 1990 Act No. 521, Section 87. See now, 1976 Code Section 62-8-101 et seq.

SECTION 62-5-504. Form of health care power of attorney.

A health care power of attorney executed on or after January 1, 2007, must be substantially in the following form:

INFORMATION ABOUT THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

1. THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISION FOR YOURSELF. THIS POWER INCLUDES THE POWER TO MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT. UNLESS YOU STATE OTHERWISE, YOUR AGENT WILL HAVE THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE.

2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENTS OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU WANT TO BE SURE YOU RECEIVE. YOUR AGENT WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. YOU MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE SPACE TO COMPLETE THE STATEMENT.

3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.

4. YOU HAVE THE RIGHT TO REVOKE THIS DOCUMENT, AND TERMINATE YOUR AGENT'S AUTHORITY, BY INFORMING EITHER YOUR AGENT OR YOUR HEALTH CARE PROVIDER ORALLY OR IN WRITING.

5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER, OR OTHER PERSON TO EXPLAIN IT TO YOU.

6. THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF THESE PERSONS MUST EITHER WITNESS YOUR SIGNING OF THE POWER OF ATTORNEY OR WITNESS YOUR ACKNOWLEDGMENT THAT THE SIGNATURE ON THE POWER OF ATTORNEY IS YOURS.

THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

A. YOUR SPOUSE, YOUR CHILDREN, GRANDCHILDREN, AND OTHER LINEAL DESCENDANTS; YOUR PARENTS, GRANDPARENTS, AND OTHER LINEAL ANCESTORS; YOUR SIBLINGS AND THEIR LINEAL DESCENDANTS; OR A SPOUSE OF ANY OF THESE PERSONS.

B. A PERSON WHO IS DIRECTLY FINANCIALLY RESPONSIBLE FOR YOUR MEDICAL CARE.

C. A PERSON WHO IS NAMED IN YOUR WILL, OR, IF YOU HAVE NO WILL, WHO WOULD INHERIT YOUR PROPERTY BY INTESTATE SUCCESSION.

D. BENEFICIARY OF A LIFE INSURANCE POLICY ON YOUR LIFE.

E. THE PERSONS NAMED IN THE HEALTH CARE POWER OF ATTORNEY AS YOUR AGENT OR SUCCESSOR AGENT.

F. YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR PHYSICIAN.

G. A PERSON WHO WOULD HAVE A CLAIM AGAINST ANY PORTION OF YOUR ESTATE (PERSONS TO WHOM YOU OWE MONEY).

IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO MORE THAN ONE WITNESS MAY BE AN EMPLOYEE OF THAT FACILITY.

7. YOUR AGENT MUST BE A PERSON WHO IS 18 YEARS OF AGE OR OLDER AND OF SOUND MIND. IT MAY NOT BE YOUR DOCTOR OR ANY OTHER HEALTH CARE PROVIDER THAT IS NOW PROVIDING YOU WITH TREATMENT; OR AN EMPLOYEE OF YOUR DOCTOR OR PROVIDER; OR A SPOUSE OF THE DOCTOR, PROVIDER, OR EMPLOYEE; UNLESS THE PERSON IS A RELATIVE OF YOURS.

8. YOU SHOULD INFORM THE PERSON THAT YOU WANT HIM OR HER TO BE YOUR HEALTH CARE AGENT. YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. IF YOU ARE IN A HEALTH CARE FACILITY OR A NURSING CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.

HEALTH CARE POWER OF ATTORNEY

(S.C. STATUTORY FORM)

1. DESIGNATION OF HEALTH CARE AGENT

I, _______________________________________, hereby appoint:

(Principal)

(Agent's Name) _____________________________

(Agent's Address) ____________________________

Telephone: home: __________ work: __________ mobile: ______ as my agent to make health care decisions for me as authorized in this document.

Successor Agent: If an agent named by me dies, becomes legally disabled, resigns, refuses to act, becomes unavailable, or if an agent who is my spouse is divorced or separated from me, I name the following as successors to my agent, each to act alone and successively, in the order named:

A. First Alternate Agent:

Address: __________________________

Telephone: home: ________ work: ________ mobile: ________

B. Second Alternate Agent:

Address: ____________________________________________

Telephone: home: ________ work: ________ mobile: ________

Unavailability of Agent(s): If at any relevant time the agent or successor agents named here are unable or unwilling to make decisions concerning my health care, and those decisions are to be made by a guardian, by the Probate Court, or by a surrogate pursuant to the Adult Health Care Consent Act, it is my intention that the guardian, Probate Court, or surrogate make those decisions in accordance with my directions as stated in this document.

2. EFFECTIVE DATE AND DURABILITY

By this document I intend to create a durable power of attorney effective upon, and only during, any period of mental incompetence, except as provided in Paragraph 3 below.

3. HIPAA AUTHORIZATION

When considering or making health care decisions for me, all individually identifiable health information and medical records may be released without restriction to my health care agent(s) and/or my alternate health care agent(s) named above including, but not limited to, (i) diagnostic, treatment, other health care, and related insurance and financial records and information associated with any past, present, or future physical or mental health condition including, but not limited to, diagnosis or treatment of HIV/AIDS, sexually transmitted disease(s), mental illness, and/or drug or alcohol abuse and (ii) any written opinion relating to my health that such health care agent(s) and/or alternate health care agent(s) may have requested. Without limiting the generality of the foregoing, this release authority applies to all health information and medical records governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 C.F.R. 160-164; is effective whether or not I am mentally competent; has no expiration date; and shall terminate only in the event that I revoke the authority in writing and deliver it to my health care provider.

4. AGENT'S POWERS

I grant to my agent full authority to make decisions for me regarding my health care. In exercising this authority, my agent shall follow my desires as stated in this document or otherwise expressed by me or known to my agent. In making any decision, my agent shall attempt to discuss the proposed decision with me to determine my desires if I am able to communicate in any way. If my agent cannot determine the choice I would want made, then my agent shall make a choice for me based upon what my agent believes to be in my best interests. My agent's authority to interpret my desires is intended to be as broad as possible, except for any limitations I may state below.

Accordingly, unless specifically limited by the provisions specified below, my agent is authorized as follows:

A. To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, medication, and the use of mechanical or other procedures that affect any bodily function, including, but not limited to, artificial respiration, nutritional support and hydration, and cardiopulmonary resuscitation.

B. To authorize, or refuse to authorize, any medication or procedure intended to relieve pain, even though that use may lead to physical damage, addiction, or hasten the moment of, but not intentionally cause, my death.

C. To authorize my admission to or discharge, even against medical advice, from a hospital, nursing care facility, or similar facility or service.

D. To take another action necessary to making, documenting, and assuring implementation of decisions concerning my health care, including, but not limited to, granting a waiver or release from liability required by a hospital, physician, nursing care provider, or other health care provider; signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in my name, and at the expense of my estate to force compliance with my wishes as determined by my agent, or to seek actual or punitive damages for the failure to comply.

E. The powers granted above do not include the following powers or are subject to the following rules or limitations: ____________________________________________________

5. ORGAN DONATION (INITIAL ONLY ONE)

My agent may ___; may not ___ consent to the donation of all or any of my tissue or organs for purposes of transplantation.

6. EFFECT ON DECLARATION OF A DESIRE FOR A NATURAL DEATH (LIVING WILL)

I understand that if I have a valid Declaration of a Desire for a Natural Death, the instructions contained in the Declaration will be given effect in any situation to which they are applicable. My agent will have authority to make decisions concerning my health care only in situations to which the Declaration does not apply.

7. STATEMENT OF DESIRES CONCERNING LIFE-SUSTAINING TREATMENT

With respect to any Life-Sustaining Treatment, I direct the following:

(INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS)

A. ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment.

OR

B. ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TREATMENT. I do not want my life to be prolonged and I do not want life-sustaining treatment:

1. if I have a condition that is incurable or irreversible and, without the administration of life-sustaining procedures, expected to result in death within a relatively short period of time; or

2. if I am in a state of permanent unconsciousness.

OR

C. ___ DIRECTIVE FOR MAXIMUM TREATMENT. I want my life to be prolonged to the greatest extent possible, within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedures.

8. STATEMENT OF DESIRES REGARDING TUBE FEEDING

With respect to Nutrition and Hydration provided by means of a nasogastric tube or tube into the stomach, intestines, or veins, I wish to make clear that in situations where life-sustaining treatment is being withheld or withdrawn pursuant to Paragraph 7:

(INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS):

A. ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged by tube feeding if my agent believes the burdens of tube feeding outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality as well as the possible extension of my life in making this decision.

OR

B. ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TUBE FEEDING. I do not want my life prolonged by tube feeding.

OR

C. ___ DIRECTIVE FOR PROVISION OF TUBE FEEDING. I want tube feeding to be provided within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedure, and without regard to whether other forms of life-sustaining treatment are being withheld or withdrawn.

IF YOU DO NOT INITIAL ANY OF THE STATEMENTS IN PARAGRAPH 8, YOUR AGENT WILL NOT HAVE AUTHORITY TO DIRECT THAT NUTRITION AND HYDRATION NECESSARY FOR COMFORT CARE OR ALLEVIATION OF PAIN BE WITHDRAWN.

9. ADMINISTRATIVE PROVISIONS

A. I revoke any prior Health Care Power of Attorney and any provisions relating to health care of any other prior power of attorney.

B. This power of attorney is intended to be valid in any jurisdiction in which it is presented.

BY SIGNING HERE I INDICATE THAT I UNDERSTAND THE CONTENTS OF THIS DOCUMENT AND THE EFFECT OF THIS GRANT OF POWERS TO MY AGENT.

I sign my name to this Health Care Power of Attorney on this

___ day of __________, 20 __. My current home address is:

________________________________________________

Principal's Signature: ______________________________

Print Name of Principal: ____________________________

I declare, on the basis of information and belief, that the person who signed or acknowledged this document (the principal) is personally known to me, that he/she signed or acknowledged this Health Care Power of Attorney in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence. I am not related to the principal by blood, marriage, or adoption, either as a spouse, a lineal ancestor, descendant of the parents of the principal, or spouse of any of them. I am not directly financially responsible for the principal's medical care. I am not entitled to any portion of the principal's estate upon his decease, whether under any will or as an heir by intestate succession, nor am I the beneficiary of an insurance policy on the principal's life, nor do I have a claim against the principal's estate as of this time. I am not the principal's attending physician, nor an employee of the attending physician. No more than one witness is an employee of a health care facility in which the principal is a patient. I am not appointed as Health Care Agent or Successor Health Care Agent by this document.

Witness No. 1

Signature: _________________________ Date: ______________

Print Name: ____________________ Telephone: ______________

Address: ______________________________________________

Witness No. 2

Signature: _________________________ Date: _______________

Print Name: ____________________ Telephone: _____________

Address: ______________________________________________

(This portion of the document is optional and is not required to create a valid health care power of attorney.)

STATE OF SOUTH CAROLINA

COUNTY OF _____________________

The foregoing instrument was acknowledged before me by Principal on _______________, 20 _________

Notary Public for South Carolina

My Commission Expires: ______________________

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; 2016 Act No. 279 (S.778), Section 2, eff January 1, 2017.

Editor's Note

Prior Laws: Former Section 62-5-504 was titled Health care power of attorney; definitions; form, and had the following history: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010. See now, 1976 Code Section 62-5-500 et seq.

SECTION 62-5-505. Health care agent powers.

A health care agent has, in addition to the powers set forth in the health care power of attorney, the following specific powers to:

(1) have access to the principal's medical records and information to the same extent that the principal would have access, including the right to disclose the contents to others;

(2) contract on the principal's behalf for placement in a health care or nursing care facility or for health care related services, without the agent incurring personal financial liability for the contract;

(3) hire and fire medical, social service, and other support personnel responsible for the principal's care;

(4) have the same health care facility or nursing care facility visitation rights and privileges of the principal as are permitted to immediate family members or spouses.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

Editor's Note

Prior Laws: Former Section 62-5-505 was titled Validity of durable power of attorney that authorizes attorney to make health care decisions regarding principal properly executed pursuant to Section 62-5-501, and had the following history: 1992 Act No. 306, Section 8; omitted by 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-506. Compensation of agent; liability for costs of care or services.

(a) The agent is not entitled to compensation for services performed under the health care power of attorney, but the agent is entitled to reimbursement for all reasonable expenses incurred as a result of carrying out the health care power of attorney or the authority granted by this section.

(b) The agent's consent to health care or to the provision of services to the principal does not cause the agent to be liable for the costs of the care or services.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-507. Pregnancy of principal.

If a principal has been diagnosed as pregnant, life-sustaining procedures may not be withheld or withdrawn pursuant to the health care power of attorney during the course of the principal's pregnancy. This subsection does not otherwise affect the agent's authority to make decisions concerning the principal's obstetrical and other health care during the course of the pregnancy.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-508. Duty of health care or nursing care provider.

A health care provider or nursing care provider having knowledge of the principal's health care power of attorney has a duty to follow directives of the agent that are consistent with the health care power of attorney to the same extent as if they were given by the principal. If it is uncertain whether a directive is consistent with the health care power of attorney, the health care provider, nursing care provider, agent, or other interested person may apply to the probate court for an order determining the authority of the agent to give the directive.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-509. Duty of agent.

An agent acting pursuant to a health care power of attorney shall make decisions concerning the principal's health care in accordance with the principal's directives in the health care power of attorney and with any other statements of intent by the principal that are known to the agent and are not inconsistent with the directives in the health care power of attorney. If a principal has a valid Declaration of a Desire for a Natural Death pursuant to Chapter 77, Title 44, then the declaration must be given effect in any situation to which it is applicable. The agent named in the health care power of attorney has authority to make decisions only in situations to which the declaration does not apply. However, nothing in this section prevents the principal or a person designated by the principal in the declaration from revoking the declaration pursuant to Section 44-77-80.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-510. Immunity from liability.

(a) A person who relies in good faith upon a person's representation that he is the person named as agent in a health care power of attorney is not subject to civil or criminal liability or disciplinary action for recognizing the agent's authority.

(b) A health care provider or nursing care provider who in good faith relies on a health care decision made by an agent or successor agent is not subject to civil or criminal liability or disciplinary action on account of relying on the decision.

(c) An agent who in good faith makes a health care decision pursuant to a health care power of attorney is not subject to civil or criminal liability on account of the substance of the decision.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-511. Appointment of successor agents.

(a) The principal may appoint one or more successor agents in the health care power of attorney in the event an agent dies, becomes legally disabled, resigns, refuses to act, is unavailable, or, if the agent is the spouse of the principal, becomes divorced or separated from the principal. A successor agent will succeed to all duties and powers given to the agent in the health care power of attorney.

(b) If no agent or successor agent is available, willing, and qualified to make a decision concerning the principal's health care, the decision must be made according to the provisions of and by the person authorized by the Adult Health Care Consent Act.

(c) All directives, statements of personal values, or statements of intent made by the principal in the health care power of attorney must be treated as exercises of the principal's right to direct the course of his health care. Decisions concerning the principal's health care made by a guardian, by the probate court, or by a surrogate pursuant to the Adult Health Care Consent Act, must be made in accordance with the directions stated in the health care power of attorney.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-512. Revocation of health care power of attorney.

(a) A health care power of attorney may be revoked in the following ways:

(1) by a writing, an oral statement, or any other act constituting notification by the principal to the agent or to a health care provider responsible for the principal's care of the principal's specific intent to revoke the health care power of attorney; or

(2) by the principal's execution of a subsequent health care power of attorney or the principal's execution of a subsequent durable power of attorney pursuant to Article 8, Title 62, if the durable power of attorney states an intention that the health care power of attorney be revoked or if the durable power of attorney is inconsistent with the health care power of attorney.

(b) A health care provider who is informed of or provided with a revocation of a health care power of attorney immediately must record the revocation in the principal's medical record and notify the agent, the attending physician, and all other health care providers or nursing care providers who are responsible for the principal's care.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

Code Commissioner's Note

At the direction of the Code Commissioner, in 2016, in (a)(2), the reference to "Section 62-5-501" was changed to "Article 8, Title 62".

SECTION 62-5-513. Execution of health care power of attorney does not constitute suicide; requirement of signing health care power of attorney prohibited as condition for insurance or receipt of health care; mercy killing not authorized or approved; absence of health care power of attorney not presumption of intent to consent to or refuse death prolonging procedures.

(a) The execution and effectuation of a health care power of attorney does not constitute suicide for any purpose.

(b) A person may not be required to sign a health care power of attorney in accordance with this section as a condition for coverage under an insurance contract or for receiving medical treatment or as a condition of admission to a health care or nursing care facility.

(c) Nothing in this section may be construed to authorize or approve mercy killing or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

(d) The absence of a health care power of attorney by an adult patient does not give rise to a presumption of his intent to consent to or refuse death prolonging procedures. Nothing in this section impairs other legal rights or legal responsibilities which a person may have to effect the provision or the withholding or withdrawal of life-sustaining procedures in a lawful manner.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-514. Criminal liability.

If a person coerces or fraudulently induces another person to execute a health care power of attorney, falsifies or forges a health care power of attorney, or wilfully conceals, cancels, obliterates, or destroys a revocation of a health care power of attorney, and the principal dies as a result of the withdrawal or withholding of treatment pursuant to the health care power of attorney, that person is subject to prosecution in accordance with the criminal laws of this State.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-515. Informing another person regarding this part not prohibited.

Nothing in this part prohibits a person from informing another person of the existence of this part, delivering to another person a copy of this part or a form for a health care power of attorney, or counseling another person in good faith concerning the execution of a health care power of attorney.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-516. Civil liability.

(a) If a person wilfully conceals, cancels, defaces, obliterates, or damages a health care power of attorney without the principal's consent, or falsifies or forges a revocation of a health care power of attorney, or otherwise prevents the implementation of the principal's wishes as stated in a health care power of attorney, that person breaches a duty owed to the principal and is responsible for payment of any expenses or other damages incurred as a result of the wrongful act.

(b) A physician or health care facility electing for any reason not to follow an agent's instruction that life-sustaining procedures be withheld or withdrawn as authorized in the health care power of attorney shall make a reasonable effort to locate a physician or health care facility that will follow the instruction and has a duty to transfer the patient to that physician or facility. If a nurse or other employee of a health care provider or nursing care provider gives notice that the employee does not wish to participate in the withholding or withdrawal of life-sustaining procedures as directed by an agent, a reasonable effort shall be made by the physician and the health care provider or nursing care provider to effect the withholding or withdrawal of life-sustaining procedures without the participation of the employee.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-517. Document or writing deemed to comply with requirements of this part.

(a) A document or writing containing the following provisions is deemed to comply with the requirements of this part:

(1) the name and address of the person who meets the requirements of Section 62-5-503 and is authorized to make health care related decisions if the principal becomes mentally incompetent;

(2) the types of health care related decisions that the health care agent is authorized to make;

(3) the signature of the principal;

(4) the signature of at least two persons who witnessed the principal's signature and who meet the requirements of Section 62-5-503; and

(5) the attestation of a notary public.

(b) Additionally, a document that meets the above requirements and also provides expressions of the principal's intentions or wishes with respect to the following health care issues authorizes the health care agent to act in accordance with these provisions:

(1) organ donations;

(2) life-sustaining treatment;

(3) tube feeding;

(4) other kinds of medical treatment that the principal wishes to have or not to have;

(5) comfort and treatment issues;

(6) provisions for interment or disposal of the body after death; and

(7) any written statements that the principal may wish to have communicated on his behalf.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

SECTION 62-5-518. Validity of a durable power of attorney.

The validity of a durable power of attorney that authorizes an attorney to make health care decisions regarding the principal which is properly executed pursuant to this part before or after the effective date of this act is not affected by the amendments contained in this act.

HISTORY: 1992 Act No. 306, Section 1; 2005 Act No. 172, Section 1; 2006 Act No. 365, Section 1; 2008 Act No. 303, Sections 2, 3, eff June 11, 2008; 2010 Act No. 244, Section 41, eff June 7, 2010; formerly 1976 Code Section 62-5-504; 2016 Act No. 279, Section 2, eff January 1, 2017.

Part 6

Uniform Veterans' Guardianship Act [Repealed]

SECTIONS 62-5-601 to 62-5-624. Repealed.

HISTORY: Former 62-5-601, titled Short title, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-602, titled Definitions, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-603, titled Appointment of guardians, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-604, titled Persons who may file summons and petition for appointment, had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 42, eff June 7, 2010. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-605, titled Contents of petition for appointment of guardian, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-606, titled Facts that constitute prima facie evidence of need for guardian of a minor ward, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-607, titled Facts that constitute prima facie evidence of need for guardian of a mentally incompetent ward, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-608, titled Notice of summons and petition, had the following history: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 43, eff June 7, 2010. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-609, titled Fitness of guardian; bond, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-610, titled Limitation on number of wards of one guardian, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-611, titled Annual account of guardians receiving funds from Veterans' Administration, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-612, titled Exhibit of securities at time of filing account, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-613, titled Effect of failure to account, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-614, titled Accountability for funds not received from Administration, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-615, titled Investments that guardians may make, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-616, titled Use of estate for support of persons other than ward, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-617, titled Copies of public records shall be furnished without charge, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-618, titled Compensation of guardians, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-619, titled Final discharge of guardian; paying out funds less than one thousand dollars, had the following history: 1986 Act No. 539, Section 1; 1987 Act No. 171, Section 68. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-620, titled Proceedings in which administrator shall be a party in interest, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-621, titled Copies of accounts, certificates, or pleadings shall be sent to Veterans' Administration, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-622, titled Time, place, and notice of hearing on account, petition, or other pleading, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-623, titled Notice of hearings shall be given to guardian; orders, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

HISTORY: Former 62-5-624, titled Construction, had the following history: 1986 Act No. 539, Section 1. Repealed by 2016 Act No. 278, Section 6, eff June 9, 2016.

Part 7

South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act

Editor's Note

2017 Act No. 87, Section 6, provides as follows:

"(A) This act takes effect on January 1, 2019.

"(B) Except as otherwise provided in this act, on the effective date of this act:

"(1) this act applies to any conservatorships, guardianships, or protective orders for minors or persons under a disability created before, on, or after its effective date;

"(2) this act applies to all judicial proceedings concerning conservatorships, guardianships, or protective orders for minors or persons under a disability commenced on or after its effective date;

"(3) this act applies to judicial proceedings concerning conservatorships, guardianships, and protective orders for minors or persons under a disability commenced before its effective date unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case that particular provision of this act does not apply and the superseded law applies;

"(4) subject to item (B)(5) and subsection (C) of this SECTION, any rule of construction or presumption provided in this act applies to governing instruments executed before the effective date of this act unless there is a clear indication of a contrary intent in the terms of the governing instrument; and

"(5) an act done and any right acquired or accrued before the effective date of the act is not affected by this act.

"(C) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before the effective date of the act, that statute continues to apply to the right even if it has been repealed or suspended."

SECTION 62-5-700. Short title.

This act may be cited as the "South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act".

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, reenacted this section with no apparent change.

SECTION 62-5-701. Exclusive jurisdiction.

Notwithstanding another provision of law, this part provides the exclusive jurisdictional basis for a court of this State to appoint a guardian or issue a protective order for an adult.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Effect of Amendment

2017 Act No. 87, Section 5.B, reenacted this section with no apparent change.

SECTION 62-5-702. Definitions.

In addition to the terms defined in Part 1, Article 5, Title 62, the following terms, as used in the part, apply:

(1) "Court" means a probate court in this State or a court in another state with the same jurisdiction as a probate court in this State.

(2) "Guardianship order" means an order appointing a guardian.

(3) "Home state" means the state in which the alleged incapacitated individual was physically present, including a period of temporary absence, for at least six consecutive months immediately preceding the filing of a petition for the appointment of a guardian or protective order; or if none, the state in which the alleged incapacitated individual was physically present, including a period of temporary absence, for at least six consecutive months ending with the six months prior to the filing of the petition.

(4) "Significant-connection state" means a state, other than the home state, with which an alleged incapacitated individual has a significant connection other than mere physical presence and in which substantial evidence concerning the alleged incapacitated individual is available. In determining, pursuant to Sections 62-5-707 and 62-5-714, whether an alleged incapacitated individual has a significant connection with a particular state, the court shall consider the:

(a) location of the alleged incapacitated individual's family and other persons required to be notified of the guardianship or protective proceeding;

(b) length of time the alleged incapacitated individual at any time was physically present in the state and the duration of any absence;

(c) location of the alleged incapacitated individual's property; and

(d) extent to which the alleged incapacitated individual has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

SECTION 62-5-703. Treatment of foreign countries.

The court may treat a foreign country as if it were a state for the purpose of applying this part.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, reenacted this section with no apparent change.

SECTION 62-5-704. Court communication with court in another state; record required; exceptions; participation of parties.

(A) The court may communicate with a court in another state concerning a proceeding arising pursuant to this article. The court shall allow the parties to participate in a discussion between courts on the merits of a proceeding. Except as otherwise provided in subsection (B), the court shall make a record of the communication. When a discussion on the merits of a proceeding between courts is held, the record must show that the parties were given an opportunity to participate, must summarize the issues discussed, and must list the participants to the discussion. In all other matters except as provided in subsection (B), the record may be limited to the fact that the communication occurred.

(B) Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record. A court may allow the parties to a proceeding to participate in any communications held pursuant to this subsection.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, reenacted this section with no apparent change.

SECTION 62-5-705. Requests to court of another state; requests from court of another state.

(A) In a guardianship or protective proceeding in this State, the court may request the appropriate court of another state to do any of the following:

(1) hold an evidentiary hearing;

(2) order a person in that state to produce evidence or give testimony pursuant to procedures of that state;

(3) order that an evaluation or assessment be made of the alleged incapacitated individual;

(4) order an appropriate investigation of a person involved in a proceeding;

(5) forward to the court a certified copy of the transcript or other record of a hearing pursuant to item (1) or another proceeding, evidence otherwise produced pursuant to item (2), and an evaluation or assessment prepared in compliance with an order pursuant to item (3) or (4);

(6) issue an order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the alleged incapacitated individual or the ward or protected person; and

(7) issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 C.F.R. Section 164.504.

(B) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (A), the court has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, in (A)(3) and (A)(6), substituted "alleged incapacitated individual" for "respondent", and in (A)(6), substituted "or the ward" for "or the incapacitated".

SECTION 62-5-706. Testimony of witness located in another state; permitted means of giving testimony; lack of original writing.

(A) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this State for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.

(B) In a guardianship or protective proceeding, a court in this State may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. The court shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.

(C) Documentary evidence transmitted from another state to a court of this State by technological means that does not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, in (C), substituted "that does not" for "that do not".

SECTION 62-5-707. Jurisdiction of court.

The court has jurisdiction to appoint a guardian or issue a protective order for an alleged incapacitated individual if:

(A) this State is the alleged incapacitated individual's home state;

(B) on the date the petition is filed, this State is a significant-connection state; and

(1) the alleged incapacitated individual does not have a home state or a court of the alleged incapacitated individual's home state has declined to exercise jurisdiction because this State is a more appropriate forum; or

(2) the alleged incapacitated individual has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state and, before the court makes the appointment or issues the order:

(a) a petition for an appointment or order is not filed in the alleged incapacitated individual's home state;

(b) an objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and

(c) the court concludes that it is an appropriate forum pursuant to the factors provided in Section 62-5-710(C);

(C) this State does not have jurisdiction pursuant to either subsections (A) or (B), the alleged incapacitated individual's home state and all significant-connection states have declined to exercise jurisdiction because this State is the more appropriate forum, and jurisdiction in this State is consistent with the constitutions of this State and the United States; or

(D) the requirements for special jurisdiction pursuant to Section 62-5-708 are met.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Effect of Amendment

2017 Act No. 87, Section 5.B, substituted "alleged incapacitated individual" for "respondent" and "alleged incapacitated individual's" for "respondent's" throughout; in (C), substituted "subsections (A) or (B)" for "item (1) or (2)"; and made nonsubstantive changes.

SECTION 62-5-708. Special jurisdiction.

(A) The court lacking jurisdiction pursuant to Sections 62-5-707 (A) through (C) has special jurisdiction to do any of the following:

(1) appoint a guardian in an emergency pursuant to this article for a term not exceeding ninety days for an alleged incapacitated individual who is physically present in this State;

(2) issue a protective order with respect to real or tangible personal property located in this State; or

(3) appoint a guardian or conservator for an incapacitated individual or protected person for whom a provisional order to transfer the proceeding from another state has been issued pursuant to procedures similar to Section 62-5-714.

(B) If a petition for the appointment of a guardian in an emergency is brought in this State pursuant to this article and this State was not the alleged incapacitated individual's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, in (A), substituted "Sections 62-5-707 (A) through (C)" for "Section 62-5-707(1) through (3)"; in (A)(1), substituted "an alleged incapacitated individual" for "a respondent"; in (A)(3), inserted "individual" following "for an incapacitated"; and in (B), substituted "alleged incapacitated individual's" for "respondent's".

SECTION 62-5-709. Exclusive and continuing jurisdiction; exception.

Except as otherwise provided in Section 62-5-708, a court that has appointed a guardian or issued a protective order consistent with this article has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order has expired by its own terms.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, substituted "has expired" for "expires".

SECTION 62-5-710. Declining jurisdiction; more appropriate forum; dismissal or stay of proceeding.

(A) The court having jurisdiction pursuant to Section 62-5-707 to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.

(B) If the court declines to exercise its jurisdiction pursuant to subsection (A), it either shall dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.

(C) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:

(1) the expressed preference of the alleged incapacitated individual;

(2) whether abuse, neglect, or exploitation of the alleged incapacitated individual has occurred or is likely to occur and which state could best protect the alleged incapacitated individual from the abuse, neglect, or exploitation;

(3) the length of time the alleged incapacitated individual was physically present in or was a legal resident of this or another state;

(4) the distance of the alleged incapacitated individual from the court in each state;

(5) the financial circumstances of the alleged incapacitated individual's estate;

(6) the nature and location of the evidence;

(7) the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;

(8) the familiarity of the court of each state with the facts and issues in the proceeding; and

(9) if an appointment is made, the court's ability to monitor the conduct of the guardian or conservator.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, in (B), substituted "either shall dismiss" for "shall either dismiss"; in (C)(1) through (C)(4), substituted "alleged incapacitated individual" for "respondent"; and in (C)(5), substituted "alleged incapacitated individual's" for "respondent's".

SECTION 62-5-711. Jurisdiction acquired due to unjustifiable conduct; assessment of reasonable expenses against responsible party.

(A) If at any time the court determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:

(1) decline to exercise jurisdiction;

(2) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the alleged incapacitated individual or the protection of the alleged incapacitated individual's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or

(3) continue to exercise jurisdiction after considering:

(a) the extent to which the alleged incapacitated individual and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;

(b) whether it is a more appropriate forum than the court of any other state pursuant to the factors provided in Section 62-5-710(C); and

(c) whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of Section 62-5-708.

(B) If the court determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this State or a governmental subdivision, agency, or instrumentality of this State unless authorized by law other than this article.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, in (A)(2) and (A)(3)(a), substituted "alleged incapacitated individual" for "respondent", and in (A)(2), substituted "alleged incapacitated individual's" for "respondent's".

SECTION 62-5-712. Notice requirements to alleged incapacitated individual's home state.

If a petition for the appointment of a guardian or issuance of a protective order is brought in this State and this State was not the alleged incapacitated individual's home state on the date the petition was filed, in addition to complying with the notice requirements of this State, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the alleged incapacitated individual's home state. The notice must be given in the same manner as notice is required to be given in this State.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, twice substituted "alleged incapacitated individual's" for "respondent's".

SECTION 62-5-713. Rules for dealing with conflicting petitions in this and another state.

Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this State pursuant to Section 62-5-708(A)(1) or (2), if a petition for the appointment of a guardian or issuance of a protective order is filed in this State and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

(A) if the court has jurisdiction pursuant to Section 62-5-707, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to Section 62-5-707 before the appointment or issuance of the order; or

(B) if the court does not have jurisdiction pursuant to Section 62-5-707, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this State shall dismiss the petition unless the court in the other state determines that the court in this State is a more appropriate forum.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, changed the paragraph designators from (1) and (2) to (A) and (B), and in (A), substituted "order; or" for "order.".

SECTION 62-5-714. Petition to transfer guardianship or conservatorship to another state; notice; hearing; provisional and final orders.

(A) A guardian or conservator appointed in this State may petition the court to transfer the guardianship or conservatorship to another state.

(B) Notice of a petition pursuant to subsection (A) must be given to the persons that would be entitled to notice of a petition in this State for the appointment of a guardian or conservator.

(C) On the court's own motion or on request of the guardian or conservator, the ward or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (A), except that a hearing must not be required if a consent order is signed by all parties who have pled, defended, or otherwise participated in the proceeding, as provided by the South Carolina Rules of Civil Procedure.

(D) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:

(1) the ward is physically present in or is reasonably expected to move permanently to the other state;

(2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the ward; and

(3) plans for care and services for the ward in the other state are reasonable and sufficient.

(E) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:

(1) the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors provided in Section 62-5-707;

(2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and

(3) adequate arrangements will be made for management of the protected person's property.

(F) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:

(1) a provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to Section 62-5-715; and

(2) the documents required to terminate a guardianship or conservatorship in this State.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

Effect of Amendment

2017 Act No. 87, Section 5.B, in (C), substituted "ward" for "incapacitated", and substituted "a hearing must not" for "no hearing shall"; in (D), three times substituted "ward" for "incapacitated person"; and in (E)(1), deleted "(2)(b)" from the Section reference at the end.

SECTION 62-5-715. Confirmation of transfer from another state; petition to accept guardianship or conservatorship; notice; hearing; provisional and final orders; determination of needed modification.

(A) To confirm transfer of a guardianship or conservatorship to this State under provisions similar to Section 62-5-714, the guardian or conservator must petition the court in this State to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.

(B) Notice of a petition pursuant to subsection (A) must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this State. The notice must be given in the same manner as notice is required to be given in this State.

(C) On the court's own motion or on request of the guardian or conservator, the ward or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (A), except that a hearing must not be required if a consent order is signed by all parties who have pled, defended, or otherwise participated in the proceeding, as provided by the South Carolina Rules of Civil Procedure.

(D) The court shall issue an order provisionally granting a petition filed pursuant to subsection (A) unless:

(1) an objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the ward or protected person; or

(2) the guardian or conservator is ineligible for appointment in this State.

(E) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this State upon its receipt of a final order from the court from which the proceeding is being transferred, when that final order is issued pursuant to provisions similar to Section 62-5-714 transferring the proceeding to this State.

(F) Not later than ninety days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the laws of this State.

(G) In granting a petition pursuant to this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the ward or protected person's incapacity and the appointment of the guardian or conservator.

(H) The denial by the court of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this State pursuant to another provision of this article if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."

SECTION 62-5-716. Registration of orders from another state; powers in this state.

(A) If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this State, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this State by filing as a foreign judgment in the court, in any appropriate county of this State, certified copies of the order and letters of office. The court shall treat this as the filing of authenticated or certified records and shall charge the fees set forth in Section 8-21-770. The court will then issue a certificate of registration. The guardian shall file the certificate, along with a copy of his fiduciary letters of office in county real estate records.

(B) If a conservator has been appointed in another state and a petition for a protective order is not pending in this State, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this State by filing as a foreign judgment in the Probate Court, in any county in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond. The court shall treat this as the filing of authenticated or certified records and shall charge the fees set forth in Section 8-21-770 for the filing of such documents. The court will then issue a certificate of registration. The conservator shall file the certificate, along with a copy of the fiduciary letters in the county real estate records.

(C)(1) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this State, subject to any conditions imposed upon nonresident parties.

(2) A probate court of this State may grant any relief available pursuant to the provisions of this article and other laws of this State to enforce a registered order.

HISTORY: 2010 Act No. 213, Section 1, eff January 1, 2011; 2017 Act No. 87 (S.415), Section 5.B, eff January 1, 2019.

Editor's Note

2010 Act No. 213, Section 4, provides as follows:

"The provisions of this act take effect on January 1, 2011, and apply to guardianship and protective proceedings begun on or after that date."




Legislative Services Agency
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