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Indicates Matter Stricken
Indicates New Matter
AMENDED
May 3, 2000
H. 4744
S. Printed 5/3/00--H.
Read the first time March 7, 2000.
TO AMEND SECTION 62-5-408, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE POWERS OF THE PROBATE COURT WITH RESPECT TO THE ESTATE AND AFFAIRS OF PROTECTED PERSONS, SO AS TO PROVIDE A NONDISPOSITIVE LIST OF THE POWERS THE COURT HAS OVER THE ESTATE AND AFFAIRS OF A PROTECTED PERSON WHO IS NOT A MINOR.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 62-5-408(3) of the 1976 Code is amended to read:
"(3)(a) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and of his estate and fulfillment of his legal obligations of support of dependents, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to:
(i) make gifts as the court, in its discretion, believes would be made by the person if he were competent;
(ii) convey or release the person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;
(iii) exercise or release the person's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;
(iv) enter into contracts;
(v) create or amend revocable trusts or create irrevocable trusts of property of the estate which may extend beyond the person's disability or life;
(vi) fund trusts;
(vii) exercise options of the disabled person to purchase securities or other property;
(viii) exercise the person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;
(ix) exercise the person's right to an elective share in the estate of the person's deceased spouse;
(x) renounce any interest by testate or intestate succession or by inter vivos transfer; and
(xi) ratify any such actions taken on the person's behalf.
(b) In exercising, or directing the exercise of the court's authority to:
(i) release powers of appointment of which the person is a donee;
(ii) renounce, release or disclaim interests;
(iii) make gifts outright or in trust;
(iv) create or amend trusts; or
(v) change beneficiaries under insurance and annuity policies, the court must exercise its authority only if satisfied, after notice and hearing, that the action is in the best interests of the person and his known heirs, devisees, donees, and beneficiaries, and that the person either is incapable of consenting, or has consented to the proposed exercise of power.
(c) In exercising the powers set forth in item (b), the court also must inquire into and consider any known lifetime gifts or the estate plan of the person, the terms of any revocable trust of which he is grantor, and any contract, transfer, or joint ownership arrangements with provisions for payment or transfer of benefits or interests at his death to another which he may have originated. In exercising the court's authority set forth in item (b), the court must set forth in the record specific findings upon which it has based its ruling."
SECTION 2. This act takes effect upon approval by the Governor.
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