Guardianships and Conservatorships: When Are They Necessary and When Can They Be Avoided?
To begin with I’d like to clarify what the difference is between a Guardian and a Conservator. A Guardian is a person appointed by the Probate Court to make decisions regarding a minor (person under age 18) or incapacitated adult’s health, education, maintenance and support. A Conservator is a person appointed by the Probate Court to manage the financial affairs or property for a minor or incapacitated adult.
As an estate planning attorney, my favorite phone calls to receive are from potential clients who want to be proactive about taking care of themselves and their family. It’s wonderful when I meet with young clients who ask me to prepare a document that names a guardian for their young children just in case something happens to both parents. I also love receiving phone calls from potential clients who ask me to prepare a document that names a person of their choosing to make decisions for them if they become incapacitated.
These clients aren’t pessimistic and they aren’t waiting around for something bad to happen. These clients are simply preparing their wishes in advance - who to take care of their children, and who to take care of themselves – if the day comes that it’s needed. These clients want to make their own decisions while they can instead of waiting too long and leaving these important decisions for a Court to make. Planning ahead gives the clients peace of mind and also helps avoid a lot of time and expense for their loved ones in the future.
A Last Will and Testament is likely the first document you think of when someone mentions estate planning. A Will is a great document that allows you to, among many other things, name a Guardian for your minor children. Having a Will prepared is often not as expensive or time consuming as people think and can be a very valuable tool.
A Durable Power of Attorney is another great document that allows you to appoint someone as your agent to act in your place when you are unable to. If a Power of Attorney is “Durable”, that means the authority granted to your agent does not terminate if you become incapacitated. Every person with the mental capacity to make decisions for themselves should sign a Durable Power of Attorney.
South Carolina Probate Code Section 62-5-101 defines incapacitated person as “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property”.
I wish I could say that as we age our minds get sharper, but unfortunately that’s not how aging works. As we get older our minds often start declining, and once our minds are too far gone, it is too late to sign a Durable Power of Attorney. The next step for a loved one is to file a Petition with the Probate Court asking to be legally appointed as your guardian and/or conservator. This process will take time and money. Doctor’s affidavit’s will be necessary as well as a Court hearing.
A similar process is necessary for the appointment of a Guardian or Conservator for a minor. Sometimes Court involvement can be avoided, but sometimes it simply is necessary. Court involvement is necessary when a minor receives a settlement from a personal injury case or receives an inheritance from someone who had passed away.
You don’t need to be ill to start planning ahead. The best time to start planning is when you are healthy and can make these important decisions calmly and rationally.