May parents be appointed as guardians for terminally ill adult son?
Full Question:
Answer:
While your son is legally competent, he might agree to sign a power of attorney that would allow you to handle his personal and financial affairs. The power of attorney could be written to allow for it to continue if there comes a time when he is not able to make decisions for himself. This is called a durable power of attorney. The powers granted under any power of attorney remain in effect until properly revoked or when the principal (person giving the powers) dies.
If your son is not legally competent, as determined by a physician, then you may petition the court to be appointed as his conservator. This is an approach that is used when the parties believe the individual cannot care for him/herself and cannot make decisions appropriately. It often applies to terminally ill people.
A conservatorship is created by the appointment of a conservator, also sometimes called a guardian. A conservator is a person or entity appointed by a court to manage the property, daily affairs, and financial affairs of another person, usually someone who is incompetent by reason of a physical or mental infirmity or age. For example, an adult daughter may be appointed as the conservator for her father who is suffering from advanced Alzheimer's disease. An open hearing is held before the appointment is made. The conservator is required to make regular accountings which must be approved by the court. The conservator may be removed by order of the court if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties.
Once a court has jurisdiction over a conservatorship that jurisdiction continues until it is terminated by the court. If the ward moves to another state, the conservatorship is not automatically terminated. However, it is often recommended when a ward moves to another state that a guardianship or conservatorship be established in the other state to ensure that the guardian's or conservator's authority will be recognized by the other state. Also, it is difficult for a court to supervise such a guardianship or conservatorship when the fiduciary lives outside the state.
In South Carolina, a conservator (sometimes called a Guardian) must decide where the person will live and make provisions for his/her care, comfort and maintenance, including mental and health care decisions. A court appointed Guardian must make yearly reports to the Probate Court regarding the condition of their ward.
A Conservator manages financial affairs or property for an incapacitated adult or for a minor. The Conservator must manage and protect the property, and report periodically to the court about the assets, receipts and disbursements of the estate. No expenditures can occur without written Court order. If you were appointed conservator by the Court, it would be your responsibility to dutifully handle the financial situation of the protected person as stipulated by the Court. A bond insures that the conservator carries out his duties faithfully and appropriately. The bond is based on the total value of the protected person's personal property (excluding real estate), plus estimated income. In general, this court assumes that property value will increase at five (5%) percent per year; this percentage may be raised or lowered if it is not appropriate under the circumstances.
For adults with a conservatory, the bond is equal to105% of the non-real estate property of the protected person; the bond must be renewed annually and the amount of the bond can be adjusted as necessary. For example, if the protected person has property worth $10,000, the bond would be $10,000 plus $500 income, or $10,500.
During the conservatorship process, the court will require that a lawyer be appointed to represent the allegedly incapacitated adult.
In order to begin a conservator/guardian proceeding, you would have to file a summons; Petition for Finding of Incapacity and Appointment of Guardian, a filing fee, a Petition to Appoint a Visitor and Proposed Order, Petition to Appoint Two Designated Examiners and Proposed Order, a SLED report for the proposed Petitioner (background check) which can be obtained from: SLED, P. O. Box 21398, Columbia, SC 29221-1398. Provide the following information about the Proposed Guardian to SLED: full name including maiden and alias names; date of birth; sex; race; and social security number. You must include $25.00 (business check, certified check, money order, or cashier's check) per search and a self addressed envelope. You may also make an internet request at www.sled.state.sc.us and you may pay for the search with a credit card.
