Most of us think of parents’ legal rights to make decisions for their children as a guardianship, but we expect adults to be able to make these decisions for themselves. When there are circumstances out of the norm, another may need to become involved to provide for, and make decisions for children or adults. This person is called a guardian, or a conservator.
For example, a child may inherit assets or an estate and need a guardian if there are no parents available. The guardian would protect these until the child reaches adulthood. Likewise, an adult may become incapacitated due to disease, physical disability, mental illness, mental deficiency, chronic use of drugs or alcohol, or other causes. Someone may need to step in if the adult is no longer able to care for themselves. A court-ordered guardianship may not be the best alternative.
Guardians make health care decisions while conservators make financial decisions for a child or an incapacitated adult. Many times the same person serves as both the guardian and the conservator. However, when a child is due to receive money from an inheritance or insurance settlement for example, the probate court must assign a conservator. Guardianships for incapacitated adults are also appointed by the probate court while those for minors are handled by the South Carolina Family Court. Court-appointed guardians must make yearly reports to the court regarding the condition of the person in their charge.
Conservators are responsible for the financial affairs of an incapacitated person or minor. A conservator manages and protects assets, pays bills, and gives periodic status reports to the court. Expenditures cannot be made without a court-written order.
Guardianship may involve a significant loss of freedom and dignity, but with proper guidance and forethought, some less restrictive alternatives are available. These vary with each individual situation of course, but may include a Power of Attorney, Representative or Protective Payee, a Conservatorship, a Revocable Trust, or others.
A knowledgeable and experienced attorney will help you navigate these choices, and help you find the best possible solution for your circumstances.