§ 62-5-304 — Order of appointment; alternatives; limitations on guardian's powers.

South Carolina § 62-5-304

• Jurisdiction: South Carolina
• Title 62: SOUTH CAROLINA PROBATE CODE
• Ch.: ARTICLE 5 - PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY

Text

(A) The court shall exercise its authority to encourage maximum self-reliance and independence of the incapacitated individual and issue orders only to the extent necessitated by the incapacity of the individual. (B) The court may appoint a guardian if clear and convincing evidence shows that the individual is incapacitated and the appointment of a guardian is necessary to provide continuing care and supervision of the incapacitated individual. The court may: (1) enter an appropriate order; (2) treat the petition as one for a protective order and proceed accordingly; or (3) dismiss the proceeding. (C) The court may appoint co-guardians if the appointment is in the best interest of the incapacitated individual. The compensation of co-guardians in the aggregate shall not exceed the compensation that would have been allowed to a sole guardian. Unless the order of appointment provides otherwise: (1) each co-guardian has authority to act independently; and (2) if a co-guardian dies, the other co-guardian has continuing authority to act alone. (D) The court, on its own motion or on the petition or motion of the incapacitated individual or other interested person, may limit the powers of a guardian and create a limited guardianship. A limitation on the statutory power of a guardian of an incapacitated individual shall be endorsed on the guardian's letters. A limitation may be removed, modified, or restored pursuant to Sections 62-5-307 and 62-5-307A. (E) Unless the court order specifies otherwise: (1) appointment of a guardian terminates an agent's powers under a health care power of attorney or durable power of attorney for matters within the scope of the guardianship; and (2) the guardian shall act consistently with the most recent advance directive executed by the ward prior to an adjudication of incapacity.

Legislative History

HISTORY: 1986 Act No. 539, SECTION 1; 1990 Act No. 483, SECTION 1; 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019. SECTION 62-5-304A. Rights and powers of ward and guardian. (A) The court shall set forth the rights and powers removed from the ward. To the extent rights are not removed, they are retained by the ward. Such rights and powers include the rights and powers to: (1) marry or divorce; (2) reside in a place of the ward's choosing, and consent or withhold consent to any residential or custodial placement; (3) travel without the consent of the guardian; (4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies; (5) make end-of-life decisions including, but not limited to, a 'do not resuscitate' order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration; (6) consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment; (7) authorize disclosures of confidential information; (8) operate a vehicle; (9) vote; (10) be employed without the consent of a guardian; (11) consent to or refuse educational services; (12) participate in social, religious or political activities; (13) buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under Section 62-5-422; (14) make, modify, or terminate contracts; (15) bring or defend any action at law or equity; and (16) any other rights and powers that the court finds necessary to address. (B) The court shall set forth the rights and powers vested in the guardian. These rights and powers include, but are not limited to, the rights and powers to: (1) determine the place where the ward shall reside and consent or withhold consent to any residential or custodial placement; (2) consent to travel; (3) consent or refuse to consent to visitation with family, friends and others; (4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies; (5) make end-of-life decisions, including, but not limited, to a "do not resuscitate" order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration; (6) consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment; (7) authorize disclosures of confidential information; (8) consent to or refuse educational services; (9) consent to employment; (10) make, modify, or terminate contracts related to the duties of the guardian; (11) bring or defend any action at law or equity; and (12) exercise any other rights and powers that the court finds necessary to address. (C) Nothing in this section must be construed as removing any rights guaranteed by the Bill of Rights for Residents of Long-Term Care Facilities under Chapter 81, Title 44. (D) The attorney-client privilege between the ward and the ward's counsel must not be removed by the appointment of a guardian. HISTORY: 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019.