Sarah Garland St. Onge
Act number 87 (S.415) implemented significant changes to the guardianship and protective proceeding portions of Article 5 of the South Carolina Probate Code.1 The changes go into effect on January 1, 2019. The legislation was supported by the Elder Law Committee of the South Carolina Bar and the South Carolina Association of Probate Judges. The proposed legislation went through an extensive review process, including stages where the Bar requested public comment on the goals for the new version of Article 5, as well as comment on the more specific proposals contained in the draft of the new law. The final draft became Senate Bill 415 and House Bill 3511 during the South Carolina General Assembly’s 122nd legislative session. The bill passed without a substantive amendment.
The goals which guided the process were as follows: • Simplify and clarify the process to promote uniformity throughout the state.
• Ensure adequate due process protections for the individual alleged to be incapacitated (“respondent”).
• Increase the availability and practicality of limited guardianships.
• Reduce the cost of the process.
• Create consistency between conservatorships and guardianship actions.
• Establish a system for adequate monitoring of guardians and conservators.2
The changes to Article 5 demonstrate an attempt to create a balance between protecting the rights of the individuals who are alleged to be incapacitated and limiting the cost of the proceeding.3 The result is that the new process is likely to increase the work for all parties during the initial pre- fling phase of the litigation and in contested cases. However, in contrast, in uncontested cases or negotiated cases, the process should be less work and less expensive for the parties.
The biggest changes and what they mean
A. Separating the Role of the Guardian ad Litem (“GAL”) from the Role of Counsel for the Respondent
One of the most significant changes to Article 5 is the separation of the role of the guardian ad litem from the role of the attorney for the respondent.4 Under the previous version of the statute, if the respondent did not have an attorney, the statute charged the probate court (“court”) with appointing an attorney to represent the respondent, noting “that attorney shall have the powers and duties of a [GAL].” Serving both roles raised multiple ethical considerations. Under the new version of the statute, the definition section clearly delineates these two roles: “Counsel for alleged incapacitated individual” means a person . . . who represents the [respondent] . . . Counsel shall represent the expressed wishes of the [respondent] to the extent consistent with the rules regulating the practice of law in the State of South Carolina.7
“[GAL]” means a person licensed in the State of South Carolina in law, social work, nursing, medicine, or psychology, or who has completed training to the satisfaction of the court, and who has been appointed by the court to advocate for the best interests of the [respondent].8
Representing the respondent in a guardianship or protective proceeding is likely to present challenges to the attorneys who agree to do this work. Fortunately, the new version of the statute provides an advocate for the wishes of the respondent and eliminates some of the diffcult ethical dilemmas.
B. Miscellaneous Changes
The new law implements a number of miscellaneous changes which codifed and clarifed the practice of some probate courts. • The probate court has the authority to grant a motion of in forma pauperis.9
• The probate court has jurisdiction to establish a special needs trust for an individual who has a disability but who is not inca-pacitated.10
• A parent or spouse may nominate a guardian for a person alleged to be incapacitated by putting a provision in their will.11 The nomination also creates a priority for the nominee under the Adult Health Care Consent Act, allowing the nominee to make health care decisions without having to be appointed as guardian. The prior version of this section granted a parent or spouse the authority to make a testamentary appointment of a guardian.13
C. Specific Changes to Part 1 of the Statute
The new law makes major changes in Part 1 to promote consistency and ensure a fair and just process for all parties. Some of the most important and significant changes in Part 1 are the changes to the definitions, including the definition of incapacity. “Incapacity” means the inability to effectively receive, evaluate, and respond to information or make or communicate decisions such that a person, even with appropriate, reasonably available support and assistance cannot:
(a) meet the essential requirements for his physical health, safety, or self-care, necessitating the need for a guardian; or
(b) manage his property or financial affairs or provide for his support or for the support of his legal dependents, necessitating the need for a protective order.
“Supports and assistance” are defined as either a system where a surrogate decision maker is already available, as in having an agent under a power of attorney, or as “reasonable accommodations” allowing the respondent to make independent decisions.16 The concept for making “reasonable accommodations” is consistent with the Americans with Disabilities Act (ADA). For example, if technology allows an individual who could not otherwise communicate to be able to communicate, then the person is not incapacitated. Another example would be a young adult with a disability who relies on family to help him understand complicated matters, also known as supported decision making.18 He is not incapacitated just because he may take more time or need more explanation to make an independent decision.
Therefore, in order to establish an individual is incapacitated to exercise a particular right, the petitioner must prove, by clear and convincing evidence, the following three elements: 1. Respondent is unable to effectively,
a. receive, evaluate and respond to information
b. or make and communicate decisions
2. Because of the inability of respondent to receive, evaluate and respond to information or make and communicate decisions, respondent cannot either
a. meet the essential requirements for life to the extent a guardian is needed
b. or manage his property or financial affairs to the extent a protective order is needed
3. And appropriate, reasonably available supports and assistance will not mitigate the need for a guardian or protective order. In other words, the “appointment of a guardian is necessary to provide continuing care and supervision of the [respondent].”19
Addition of the “supports and assistance” element to the definition of incapacity ensures that if a less restrictive alternative is a vailable to guardianship or a protective order, then the court should not find an individual is incapacitated under the law, even if the first element in establishing incapacity is met.20 The statute defines “less restrictive alternative” as “the provision of support and assistance . . . which maximizes the alleged incapacitated individual’s capacity for self determination and autonomy in lieu of a guardianship or conservatorship.”21 The petition must set forth the reason why guardianship or a protective order is necessary, including why less restrictive alternatives are not available or appropriate.22 Also, the GAL must investigate whether or not less restrictive alternatives to a guardianship or protective order are available.
While greatly expanding and changing the definition section, the new version of Part 1 also makes some other significant and important changes to promote uniformity, to ensure consistency, and to increase flexibility. • The authority to award costs and expenses of the proceeding, including attorney fees is in the discretion of the court, but the default is that the petitioner is responsible for his own fees and costs.24
• The responsibilities and duties of the GAL are listed in detail in the statute.25
• For consistency, the process for emergencies and temporary relief is in Part 1, applying to both guardianship actions and protective proceedings.26
D. Specific Changes to Part 3 of the Statute
Part 3 of Article 5 is the guardianship portion of the statute. Some of the important changes to Part 3 are as follows: • Each competing fiduciary must file a petition if they wish to be appointed.27
• No visitor is required. The GAL will be responsible for...