§ 62-5-405 — Protective arrangements.

South Carolina § 62-5-405

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

Text

(A) When it is established in a formal proceeding that a basis exists for affecting a protective arrangement that concerns the property and affairs of a minor or an incapacitated individual, the court may: (1) without appointing a conservator, authorize, direct, or ratify any provision within a protective arrangement that is in the best interest of the minor or incapacitated individual. A protective arrangement includes, but is not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; or the addition to or establishment of a suitable trust. If the formal proceeding involves the sale of real property, the petitioner shall file in the office of the clerk of the circuit court a notice of pendency of action authorized by Sections 15-11-10 to 15-11-50 and upon the filing of such notice, it has the same force and effect as a notice of pendency of action filed in an action in the circuit court. (2) authorize a conservator or a special conservator to exercise the power to perform the following acts: (a) make gifts as the court, in its discretion, believes would be made by the protected person; (b) convey or release the protected person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy; (c) create or amend revocable trusts or create irrevocable trusts of property of the protected person's estate that may extend beyond the protected person's disability or life, or the protected person attaining the age of majority, including the creation or funding of a trust for the benefit of a minor, and a special needs trust or a pooled fund trust for disabled individuals; (d) fund trusts; (e) exercise the protected person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender policies for their cash value; (f) exercise the protected person's right to an elective share in the estate of a deceased spouse; (g) renounce any interest by testate or intestate succession or by inter vivos transfer; (h) ratify any such actions taken on behalf of the protected person. (B) When acting as conservator or when approving a conservator's or special conservator's action, the court may consider the: (1) wishes of the protected person; (2) financial needs and legal obligations of the protected person and those who are dependent upon him for support; (3) tax consequences; (4) protected person's eligibility or potential eligibility for governmental assistance; (5) protected person's previous pattern of giving or level of support; (6) protected person's gifting and estate plan; and (7) protected person's life expectancy and the probable duration of incapacity. (C) Prior to issuing a protective order, the court shall consider whether appointment of a conservator is necessary. The court shall set forth specific findings upon which the court bases its order authorizing a protective arrangement. For purposes of issuing a consent order, counsel may consent on behalf of the protected person. (D) The petitioner shall serve all heirs and devisees of the incapacitated individual whose identity and whereabouts are reasonably ascertainable with the petition seeking a protective order to perform one or more actions set forth in subsection (A)(2).

Legislative History

HISTORY: 1986 Act No. 539, SECTION 1; 2000 Act No. 398, SECTION 10. Formerly Code 1976 SECTIONS 62-5-408 and 62-5-409, renumbered and amended by 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019; 2024 Act No. 200 (H.4234), SECTION 15, 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 15, in (A), in (1), inserted the third sentence, and in (2)(c), inserted "or the protected person attaining the age of majority," and "trust for the benefit of a minor, and a".