What is the Difference Between a Guardianship and Conservatorship?

Guardianships and Conservatorships are court actions in which someone, called the Petitioner, asks the Probate Court for permission to take care of someone who is no longer able to make decisions for himself or herself. Most often, they are used when elderly parents or spouses begin suffering from diseases such as dementia or Alzheimer’s.

A Guardianship is the court proceeding in which a person is declared mentally incompetent and someone is named to help make decisions for them, such as how and where they will be cared for, what medical treatment they will receive, and a number of other very important decisions.

A Conservatorship is a court proceeding in which, again, a person is declared mentally incompetent. However, the Conservator is the person tasked with managing all of the incapacitated person’s assets. While the Guardian and Conservator can be the same person, they do not have to be. 

To begin the process at least one doctor will need to examine the alleged incapacitated person to determine whether they can still handle their affairs. Before the process is complete, two doctors must agree that the person cannot take care of their health care and/or financial affairs. 

The Court will also appoint a Guardian ad Litem, who is another attorney that represents the interests of the incapacitated person. Finally, the Court appoints a Visitor, who must be a registered nurse, social worker or attorney. The Visitor's job is to make the sure the place the alleged incapacitated person is staying is a safe environment.

These proceedings consist of many steps, and always require at least one hearing. If there needs to be an emergency appointment or if the actions or contested, several hearings could be required. An uncontested process  typically takes two to three months, but can go on for years if there is a fight. This process of having someone appointed is required even for a spouse to make many decisions in South Carolina.  

The Guardian ad Litem often bills hourly, especially in contested actions. Their fees can vary from a couple hundred dollars in an uncontested action to tens of thousand of dollars in a highly contested appointment.  The filing fees alone for these actions are several hundred dollars. There are also annual reporting requirements, Court fees, and ongoing Court supervision for as long as the disability lasts. All of this, however, can be completely avoided with a Financial Power of Attorney.

If you have a friend or family member who may not be able to care for themselves anymore and you believe a Guardianship or Conservatorship may be needed, please feel free to give us a call for a free initial consultation, or fill out the form below and we will contact you.

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