One of the toughest decisions is whether to bring a guardianship and/or conservatorship action over another family member or close friend. This only comes up when the person needing a guardianship or conservatorship can no longer take care of himself. He is in the category of a “protected person”. In the case of a guardianship, the protected person is no longer able to take care of himself and requires a competent person to make health care and living decisions. In the case of a conservatorship, the protected person cannot handle his finances and requires a competent person to handle the finances and make those decisions. Normally, both actions (Conservatorships and Guardianships) are brought together, as the protected person cannot handle either of those issues. Additionally, normally the person petitioning the court will petition to become both guardian and conservator. A number of things to consider before filing this action.
First, the petition for Guardianship/Conservatorship is made with the probate court of the county the protected person resides. Second, it is similar to bringing other suits in probate court. In the case of a Guardianship/Conservatorship, the party seeking the conservatorship will be the Petitioner and the protected person is the Respondent. In South Carolina, a requirement for successfully bringing the action is to have a medical evaluation of the protected person, and the physician’s determination that the Guardianship or Conservatorship is necessary due to the condition of the protected person. Even with that determination, the protected person still has the ability in a hearing to argue against the action (including through counsel). Additionally, notice must be given to all interested parties, which are other family members to the protected person. Each of them can argue against the action, or that one of them should be the Guardian or Conservator. Therefore, seeking a Guardianship or Conservatorship should only come after clear evidence the protected person is in true need of the action. This is an action in which a lawyer is highly recommended.
It’s important to remember that if the potential protected person is not yet at the level of requiring the Conservatorship, and he is competent to sign a Power of Attorney (POA), he can give power to another to handle financial matters. The only problem is that the potential protected person can still conduct his own business, potentially to his detriment. Additionally, a POA can be revoked at any time. Sometimes, a potential protected person gives POA to someone who may abuse the POA to the detriment of the person, and become incompetent after giving POA. In that event, a loved one may need to step in with a Petition for Conservatorship and/or Guardianship. That may be the only way to stop the person with POA from abusing that power to the detriment to of the potential protected person.
If possible, it is always best to obtain “buy-in” by the potential protected person before filing a Conservatorship and/or Guardianship. In that event, the process is much more smooth, and the protected person knows and can trust the person petitioning. The hearing becomes “pro forma”, and other family members may be placated in this circumstance. I have seen this particularly with elderly come to realize they need the help of a child, for example, and work with them in the Petition. If the protected person fights the process, it can become very difficult and expensive. Sometimes, the incapacitating issue is some form of dementia. Sometimes, it may be a psychiatric or mental challenge issue. Sometimes it comes due to a personal injury, a car wreck for example, in which the person is seriously injured and cannot handle affairs.
This is a process that requires much thought and prayer to handle while keeping peace among relationships. It is always recommended to obtain counsel to get through this challenging time.
