The inability to manage your own affairs is one of the most anxiety provoking concerns confronting older Americans. The inability to handle personal and financial matters can be caused by a stroke, dementia, physical frailty or illness. Planning for disability early can relieve much of the anxiety of this common concern. There are a number of alternatives that you can consider in the planning stage, such as, executing a Durable Power of Attorney, a Revocable Living Trust, a Health Care Power of Attorney or a Living Will. However, if you fail to plan ahead, a relative or friend will be required to ask the probate court to impose a Guardianship and Conservatorship. These are formal court proceedings that require a hearing and the presentation of evidence.

Guardianship is a formal probate court proceeding that allows the court to assign a person to make personal decisions for an incapacitated person. The decisions a guardian can make include the determination of where a person will live and the medical care a person will receive. A guardian is not required to post any bond.

Conservatorship is a mechanism established by the probate court that allows an appointed person to make financial decisions for another. A conservator can make decisions related to the incapacitated person's bank accounts, retirement benefits, social security and payment of bills. Generally, a conservator is required to post a bond to protect the person if the property is not properly handled and the person suffers a loss.

In the case of an incapacitated person who has property, it is preferable to seek both a guardianship and a conservatorship. This could be an important safe guard for the incapacitated person, since the conservator is required to post a bond.

In order for the probate court to impose either a guardianship or a conservatorship, the person seeking the order must demonstrate that the incapacitated person is in fact incompetent. Incompetence, in guardianship proceedings, is defined under South Carolina law as "…impaired…to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property." S.C. Code Ann. § 62-5-101. In a conservatorship proceeding, incapacity is defined as "…unable to manage his property and affairs effectively … and the person has property which will be wasted or dissipated unless proper management is provided…" S.C. Code Ann. § 62-5-401.

The most common events that result in a guardianship or conservatorship hearing are a friend or family member requesting assistance to place an older person in a home where the person can receive assistance with activities of daily living, to restrain a person from driving, to obtain medical treatment, and to help manage the older person's money and property.

In order for the probate court to commence the proceedings, the family member, friend or interested person must file a petition, which requests the court to impose the guardianship and/or conservatorship. The petitioner must have a witness who can present some testimony about the person's level of incapacity. While there are some differences between guardianship and conservatorship proceedings the requirements are basically the same. The court will order that a visitor and two examiners examine the person. The visitor is a person with training in law, nursing or social work that examines the person on behalf of the court and prepares a report following an investigation into the matters addressed in the petition. One of the examiners must be a physician appointed by the court and the other may be the incapacitated person's family physician or nurse practitioner or a social worker.

Once the court sets the hearing date, the examiners, visitor and any witnesses must be prepared to present their testimony. The petitioner must prove by clear and convincing evidence that the older person is incompetent and/or incapable of handling his or her own affairs. The examiners and the visitor present their reports. The hearing is open to the public unless the incapacitated person requests that it be closed. The petition and the reports, however, are in public files at the courthouse.

In South Carolina, the Guardianship and Conservatorship statues provide a list of people who the court must consider as potential guardians and conservators, provided they are competent, suitable and willing to serve. The list is in order of priority, as follows: an individual nominated by the incapacitated person, an attorney-in-fact appointed through a durable power of attorney, a spouse, an adult child, a parent, a relative and a person nominated by the caretaker.

A guardianship can be temporary to cover a period of incapacity. A guardianship can be imposed in an emergency without an initial hearing. An emergency might be if the incapacitated person has need for an immediate medical procedure and refuses to consent, or if the person in being neglected and might suffer an injury if not removed from a dangerous setting. When an emergency temporary guardian is appointed, the court sets a date and time for a hearing after the emergency has passed.

Both guardianships and conservatorships may be terminated. If the incapacitated person recovers or no longer requires supervision, the court may terminate the appointment. The court has oversight of the activities of both the guardian and conservator. In the event of any irregularity, the court may intervene and remove an appointee.

While guardianships and conservatorships are there if a person has not worked out a plan for handling incapacity, these alternatives are cumbersome and public. The best plan is to avoid these proceedings by having detailed instructions for friends and/or family about how to handle your affairs if you cannot. An Elder Law attorney can help with this type of planning.

The information in this article was prepared as general and supplemental information and may not be applicable to the reader's particular legal needs or circumstances. It should not be relied upon as a substitute for legal or other professional services. For such services consult a competent professional advisor.

M. Robin Morris, R.N., L.L.C., Attorney At Law, 164 Waccamaw Medical Park Court, Conway, S.C. 29528; Tel. 843-347-7998. Member of National Academy of Elder Law Attorneys. ©1998