§ 62-5-403 — Protective proceedings; incapacitated and disabled persons.

South Carolina § 62-5-403

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

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(A) A person seeking a finding of incapacity, appointment of a conservator, or issuance of a protective order must file a summons and petition if: (1) the individual is unable to manage his property or affairs effectively for reasons of incapacity, confinement, detention by a foreign power, or disappearance; and (a) the individual has an agent pursuant to a durable power of attorney and the actions necessary to prevent waste or dissipation of the individual's property are not being adequately performed by or are beyond the authority of the agent; or (b) the individual has no agent under a durable power of attorney and owns property that will be wasted or dissipated or which is needed for the health, education, maintenance, or support of the individual or those entitled to his support, and protection is necessary to obtain or administer the funds. (2) a protective order is necessary to create a special needs trust for an individual who is disabled in accordance with Social Security Administration guidelines. (B) The petition shall set forth, to the extent known or reasonably ascertainable, the following information: (1) interest of the petitioner; (2) name, age, current address, and contact information of the alleged incapacitated individual, who must be designated as the respondent; (3) physical location of the alleged incapacitated individual during the six-month period immediately preceding the filing of the summons and petition; and, if the alleged incapacitated individual was not physically present in South Carolina for that period, sufficient information upon which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707; (4) to the extent known and reasonably ascertainable, the names and addresses of the following persons, who must be designated corespondents: (a) the alleged incapacitated individual's spouse and any adult children; or if none, his parents; or if none, at least one of his adult relatives with the nearest degree of kinship; (b) a person known to have been appointed as agent under a general durable power of attorney or health care power of attorney; (c) a person who has equal or greater priority for appointment pursuant to Section 62-5-408 as the person whose appointment is sought in the petition; (d) a person other than an unrelated employee or health care worker who is known or reasonably ascertainable by the petitioner to have materially participated in the caring for the alleged incapacitated individual within the six-month period preceding the filing of the petition; and (e) the person entitled to notice on behalf of the VA, if the alleged incapacitated individual is receiving VA benefits; (5) name and address of the proposed conservator and the basis of his priority for appointment; (6) reason why conservatorship is necessary, including why less restrictive alternatives are not available and appropriate, and a brief description of the nature and extent of the alleged incapacity; (7) a statement of any rights the petitioner is requesting be removed from the alleged incapacitated individual, any restrictions to be placed on the alleged incapacitated individual, and any restrictions sought to be imposed on the conservator's powers and duties; (8) a general statement of the alleged incapacitated individual's assets, with an estimated value, and the source and amount of any income of the alleged incapacitated individual; and (9) whether the alleged incapacitated individual has been rated incapable of handling his estate and monies on examination by the VA and, if so, shall state the name and address of the person to be notified on behalf of the VA. (C) An alleged incapacitated individual seeking the appointment of a conservator or issuance of a protective order may file a summons and petition with the information specified in subsection (B). (D) When more than one petition is pending in the same court, the proceedings may be consolidated.

Legislative History

HISTORY: 1986 Act No. 539, SECTION 1; 2010 Act No. 244, SECTION 30, eff June 7, 2010; 2016 Act No. 278 (S.777), SECTION 3, eff June 9, 2016. Formerly Code 1976 SECTIONS 62-5-401 and 62-5-404, renumbered and amended by 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019. SECTION 62-5-403A. Service of summons and petition. (A) As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve: (1) a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual; (2) a copy of the summons and petition upon all corespondents and the petitioner in any pending conservatorship or protective proceeding; and (3) any affidavits or physicians' or nurse practitioners' reports, at the discretion of the court, the report of a physician assistant or psychologist, filed with the petition. (B) If service is not accomplished within one hundred twenty days after the filing of the action, the court may dismiss the action without prejudice. (C) The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received a notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of the proof of service, the court will appoint counsel. In appointing counsel, the court may consider the expressed preferences of the alleged incapacitated individual. (D) The date for the alleged incapacitated individual to file a responsive pleading shall run from the later of the date the court appoints counsel for the alleged incapacitated individual or from the date the court receives notice of appearance by counsel selected by the alleged incapacitated individual. HISTORY: 1986 Act No. 539, SECTION 1; 1997 Act No. 152, SECTION 23; 2010 Act No. 244, SECTION 32, eff June 7, 2010; 2016 Act No. 278 (S.777), SECTION 4, eff June 9, 2016. Formerly Code 1976 SECTION 62-5-405, renumbered and amended by 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019; 2024 Act No. 200 (H.4234), SECTION 12, eff May 21, 2024. Editor's Note 2024 Act No. 200, SECTION 30, provides as follows: "SECTION 30. SECTIONS 1-21 of this act take effect upon approval by the Governor and their provisions shall apply to all applicable actions, proceedings, and matters filed on and after the effective date; SECTIONS 22-29 of this act take effect on July 1, 2025." Effect of Amendment 2024 Act No. 200, SECTION 12, rewrote (A)(3). SECTION 62-5-403B. Appointment of counsel and guardian ad litem. (A) Except in cases governed by Section 62-5-431 relating to veterans benefits, upon receipt by the court of proof of service of the summons, petition, and notice of right to counsel upon the alleged incapacitated individual, the court shall: (1) upon the expiration of fifteen days from the filing of the proof of service on the alleged incapacitated individual, if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual, appoint counsel; (2) no later than thirty days from the filing of the proof of service on the alleged incapacitated individual, appoint: (a) a guardian ad litem for the alleged incapacitated individual who has the duties and responsibilities set forth in Section 62-5-106; (b) except in cases governed by Section 62-5-431 relating to benefits from the VA, one examiner, who must be a physician or nurse practitioner or, at the discretion of the court, may be a physician assistant or psychologist, to examine the alleged incapacitated individual and file a notarized report setting forth his evaluation of the condition of the alleged incapacitated individual in accordance with the provisions set forth in Section 62-5-403D. Unless the guardian ad litem or the alleged incapacitated individual objects, if a physician's or nurse practitioner's notarized report or, at the discretion of the court, may be a physician assistant or psychologist, is filed with the petition and served upon the alleged incapacitated individual and all interested parties with the petition, then the court may appoint that physician or nurse practitioner or, at the discretion of the court, may be a physician assistant, or psychologist, as the examiner. Upon the court's own motion or upon request of the initial examiner, the alleged incapacitated individual, or his guardian ad litem, the court may appoint a second examiner, who must be a physician, physician assistant, nurse practitioner, nurse, social worker, or psychologist. No appointment of examiners is required when the basis for the petition is that the individual is confined, detained, or missing. (B) At any time during the proceeding, if requested by a guardian ad litem who is not an attorney, the court may appoint counsel for the guardian ad litem. (C) At the attorney's discretion, the attorney for the alleged incapacitated individual may file a motion requesting that the court relieve him as the attorney if the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment in a protective proceeding. The attorney must file an affidavit in support of the motion. If the court is satisfied that the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment in a protective proceeding, then the court may relieve the attorney from his duties as attorney for the alleged incapacitated individual. If the former attorney requests to be appointed as the guardian ad litem, the court may appoint him to serve as the guardian ad litem. An attorney cannot serve as both an attorney and as a guardian ad litem in a protective proceeding. HISTORY: 1986 Act No. 539, SECTION 1; 2010 Act No. 244, SECTION 33, eff June 7, 2010; 2016 Act No. 278 (S.777), SECTION 5, eff June 9, 2016. Formerly Code 1976 SECTION 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019; 2024 Act No. 200 (H.4234), SECTION 13, eff May 21, 2024. Editor's Note 2024 Act No. 200, SECTION 30, provides as follows: "SECTION 30. SECTIONS 1-21 of this act take effect upon approval by the Governor and their provisions shall apply to all applicable actions, proceedings, and matters filed on and after the effective date; SECTIONS 22-29 of this act take effect on July 1, 2025." Effect of Amendment 2024 Act No. 200, SECTION 13, rewrote (A)(2)(b). SECTION 62-5-403C. Hearing; waiver. (A) As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties, the court shall hold a hearing on the merits of the petition, unless the provisions in subsection (C) apply. The alleged incapacitated individual, all parties, and any person who has filed a demand for notice shall be given notice of the hearing. The alleged incapacitated individual is entitled to be present at the hearing, to conduct discovery, and to review all evidence bearing upon his condition. The hearing may be closed at the request of the alleged incapacitated individual or his guardian ad litem. (B) The alleged incapacitated individual may waive notice of a hearing and his presence at the hearing. (C) If no party has requested a hearing, there is an agreement among all the parties and the guardian ad litem's report indicates that a hearing would not further the interests of justice, the alleged incapacitated individual may waive his right to a hearing. If the alleged incapacitated individual is unable to communicate to his guardian ad litem his wishes, interest, or preferences regarding the appointment of a guardian or the petition for appointment is not contested, either the attorney of the alleged incapacitated individual or the guardian ad litem, if the attorney has been relieved, shall be allowed to waive the alleged incapacitated individual's right to a hearing. If the alleged incapacitated individual waives his right to a hearing, the court may: (1) require a formal hearing; (2) require an informal proceeding as the court shall direct; or (3) proceed without a hearing. (D) If no formal hearing is held, the court shall issue a temporary consent order, based upon such terms agreed to by the parties and the guardian ad litem. The order shall be considered to be a temporary order which shall expire in thirty days. A protected person under a temporary consent order may request a formal hearing at any time during the thirty-day period after the order is filed. At the end of the thirty-day period, if the protected person, his conservator, his attorney, his guardian ad litem, or any other fiduciary empowered to act on the protected person's behalf by law or contract has not requested a formal hearing, the court shall issue an order upon such terms agreed to by the parties and the guardian ad litem. The consent order shall become the final order of the court. The protected person, his conservator, his attorney, his guardian ad litem, or any other fiduciary empowered to act on the protected person's behalf by law or contract also may request any desired corrections or amendments to the order during the thirty-day period. HISTORY: 1986 Act No. 539, SECTION 1; 1987 Act No. 171, SECTION 67; 1997 Act No. 152, SECTION 23; 2010 Act No. 244, SECTIONS 32, 33, eff June 7, 2010; 2016 Act No. 278 (S.777), SECTIONS 4, 5, eff June 9, 2016. Formerly Code 1976 SECTIONS 62-5-405, 62-5-406, and 62-5-407, renumbered and amended by 2017 Act No. 87, SECTION 5.A, eff January 1, 2019; 2024 Act No. 200 (H.4234), SECTION 14, eff May 21, 2024. Editor's Note 2024 Act No. 200, SECTION 30, provides as follows: "SECTION 30. SECTIONS 1-21 of this act take effect upon approval by the Governor and their provisions shall apply to all applicable actions, proceedings, and matters filed on and after the effective date; SECTIONS 22-29 of this act take effect on July 1, 2025." Effect of Amendment 2024 Act No. 200, SECTION 14, rewrote the section. SECTION 62-5-403D. Report of examiner. (A) Each examiner shall complete a notarized report setting forth an evaluation of the condition of the alleged incapacitated individual. The original report must be filed with the court by the court's deadline, but not less than forty-eight hours prior to any hearing in which the report will be introduced as evidence. For good cause, the court may admit an examiner's report filed less than forty-eight hours prior to the hearing. All parties are entitled to review the reports, which are admissible as evidence. The evaluation shall contain, to the best of the examiner's knowledge and belief: (1) a description of the nature and extent of the incapacity, including specific functional impairments; (2) a diagnosis and assessment of the alleged incapacitated individual's mental and physical condition, including whether he is taking any medications that may affect his actions; (3) an evaluation of the alleged incapacitated individual's ability to exercise the rights set forth in Section 62-5-407; (4) when consistent with the scope of the examiner's license, an evaluation of the alleged incapacitated individual's ability to learn self-care skills, adaptive behavior, and social skills, and a prognosis for improvement; (5) the date of all examinations and assessments upon which the report is based; (6) the identity of the persons with whom the examiner met or consulted regarding the alleged incapacitated individual's mental or physical condition; and (7) the signature and designation of the professional license held by the examiner. (B) Unless otherwise directed by the court, the examiner may rely upon an examination conducted within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith, an examiner appointed by the court pursuant to Section 62-5-403B is immune from civil liability for any breach of patient confidentiality made in furtherance of his duties. HISTORY: 1986 Act No. 539, SECTION 1; 2010 Act No. 244, SECTION 33, eff June 7, 2010; 2016 Act No. 278 (S.777), SECTION 5, eff June 9, 2016. Formerly Code 1976 SECTION 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019.