Bill 4444

                    Current Status

Bill Number:               4444
Ratification Number:       576
Act Number                 483
Introducing Body:          House
Subject:                   Appointment of guardian for an
                           incapacitated person

(A483, R576, H4444)

AN ACT TO AMEND SECTION 62-5-304, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT OF A GUARDIAN FOR AN INCAPACITATED PERSON, SO AS TO DEFINE THE COURT'S AUTHORITY PERTAINING TO THE PERSON AND THE APPOINTMENT OF A GUARDIAN; SECTION 62-5-309, RELATING TO NOTICES IN A GUARDIANSHIP PROCEEDING, SO AS TO REQUIRE NOTICE TO AN ATTORNEY IN FACT UNDER A DURABLE POWER OF ATTORNEY; SECTION 62-5-310, RELATING TO THE COURT EXERCISING GUARDIAN POWERS AND A TEMPORARY GUARDIAN, SO AS TO PROVIDE ADDITIONAL CIRCUMSTANCES UNDER WHICH THE POWERS ARE EXERCISED AND A TEMPORARY GUARDIAN IS APPOINTED, DEFINE EMERGENCY, AND PROVIDE FOR NOTICE AND HEARING AFTER THE APPOINTMENT; SECTION 62-5-311, RELATING TO GUARDIANS, SO AS TO PROVIDE FOR ADDITIONAL PERSONS WHO MAY BE APPOINTED AS GUARDIAN SUBJECT TO A FINDING OF GOOD CAUSE INSTEAD OF THE COURT'S DISCRETION; AND SECTION 62-5-501, RELATING TO THE APPOINTMENT OF A POWER OF ATTORNEY NOT AFFECTED BY PHYSICAL DISABILITY OR MENTAL INCOMPETENCE, SO AS TO REVISE THE REQUIREMENTS FOR THE CONTENT OF THE APPOINTMENT, PROVIDE FOR THE CIRCUMSTANCES UNDER WHICH A POWER IS TERMINATED, PROVIDE FOR THE EFFECTIVENESS OF THE INSTRUMENT EXECUTING THE POWER, AND CHANGE THE REFERENCE TO INTESTATE'S ESTATE TO A PROTECTED PERSON'S ESTATE.

Be it enacted by the General Assembly of the State of South Carolina:

Appointment of guardian for an incapacitated person

SECTION 1. Section 62-5-304 of the 1976 Code is amended to read:

"Section 62-5-304. (A) The court shall exercise the authority conferred in this part so as to encourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's mental and adaptive limitations or other conditions warranting the procedure.

(B) The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person. The court, on appropriate findings, may:

(1) treat the petition as one for a protective order under Section 62-5-401 and proceed accordingly;

(2) enter another appropriate order; or

(3) dismiss the proceeding.

(C) The court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, may limit the powers of a guardian otherwise conferred by this article and create a limited guardianship. A limitation on the statutory power of a guardian of an incapacitated person must be endorsed on the guardian's letters or, in the case of a guardian by parental or spousal appointment, must be reflected in letters issued at the time a limitation is imposed. Following the same procedure, a limitation may be removed or modified and appropriate letters issued."

Notices in a guardianship proceeding

SECTION 2. Section 62-5-309 of the 1976 Code is amended to read:

"Section 62-5-309. (A) In a proceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing must be given to each of the following:

(1) the ward or the person alleged to be incapacitated and his spouse, parents, and adult children;

(2) a person who is serving as his guardian, conservator, or attorney in fact under a durable power of attorney pursuant to Section 62-5-501 or who has his care and custody;

(3) if no other person is notified under item (1), at least one of his closest adult relatives, if one can be found.

(B) Notice must be served personally on the alleged incapacitated person and his spouse and parents if they are found within the State. Notice to the spouse and parents, if they cannot be found within the State, and to all other persons except the alleged incapacitated person, must be given as provided in Section 62-1-401. Waiver of notice by the person alleged to be incapacitated is not effective unless he attends the hearing or his waiver of notice is given by his attorneys or, in proceedings for removal, confirmed in an interview with the visitor, which may be done at any time. Representation of the alleged incapacitated person by a guardian ad litem is not necessary."

Guardian powers exercised; temporary guardian

SECTION 3. Section 62-5-310 of the 1976 Code is amended to read:

"Section 62-5-310. (A) If the court makes emergency preliminary findings that:

(1) a physician has certified to the court, orally or in writing, that the person is incapacitated;

(2) no guardian has been appointed previously; and

(3) the welfare of the incapacitated person requires immediate action; then the court, with or without notice, may appoint a temporary guardian for a specified period not to exceed six months in accordance with the priorities set out in Section 62-5-311.

(B) If the court makes emergency preliminary findings that:

(1) the appointed guardian or temporary guardian is not effectively performing his duties; and

(2) the welfare of the allegedly incapacitated person requires immediate action, then the court may appoint, with or without notice, a temporary guardian for a specified period not to exceed six months in accordance with the priorities set out in Section 62-5-311.

(C) If the court makes emergency preliminary findings that:

(1) no person appears to have authority to act on behalf of the incapacitated person; or

(2) more than one person is authorized to make health care decisions for the incapacitated person, and these authorized persons disagree on whether certain care must be provided;

(3) the person has been adjudicated as being incapacitated, or a physician has certified to the court, orally or in writing, that the person is incapacitated; and

(4) an emergency exists;

then the court may itself exercise the power of a temporary guardian, with or without notice.

For health care purposes, 'emergency' means that a delay caused by (1) further attempts to locate a person authorized to make health care decisions or (2) proceedings for appointment of a guardian would present a serious threat to the life, health, or bodily integrity of the incapacitated person.

(D) If a temporary guardian is appointed without notice under this section, notice and hearing must be held within fourteen days after the appointment of the temporary guardian.

(E) A temporary guardian is entitled to the care and custody of the ward and the authority of a permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make reports the court requires. In other respects the provisions of law concerning guardians apply to temporary guardians.

(F) A hearing concerning the need for appointment of a permanent guardian must be a hearing de novo as to all issues before the court."

Persons who may be appointed as guardians; good cause

SECTION 4. Section 62-5-311 of the 1976 Code is amended to read:

"Section 62-5-311. (A) Any competent person or a suitable institution may be appointed guardian of an incapacitated person.

(B) Subject to a finding of good cause by the court, persons who are not disqualified have priority for appointment as guardian in the following order:

(1) a person nominated to serve as guardian by the incapacitated person;

(2) an attorney in fact appointed by the incapacitated person pursuant to Section 62-5-501, whose authority includes powers relating to the person of the incapacitated person;

(3) the spouse of the incapacitated person. A person who claims to be a common law spouse of the incapacitated person has the burden of proving that status in order to qualify for appointment as a guardian under this provision. A decision by the probate court regarding the status of a common law spouse is for the purpose of guardianship appointment proceedings only and is not binding in any other court of law or in any administrative proceeding;

(4) an adult child of the incapacitated person;

(5) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(6) another relative of the incapacitated person;

(7) a person nominated by the person who is caring for him or paying benefits to him."

Power of attorney; protected person's estate

SECTION 5. Section 62-5-501 of the 1976 Code is amended to read:

"Section 62-5-501. (A) Whenever a principal designates another his attorney in fact by a power of attorney in writing and the writing contains (1) the words 'This power of attorney is not affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate', (2) the words 'This power of attorney becomes effective upon the physical disability or mental incompetence of the principal', or (3) similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his physical disability or mental incompetence or either physical disability or mental incompetence, the authority of the attorney in fact is exercisable by him as provided in the power on behalf of the principal notwithstanding later physical disability or mental incompetence of the principal or later uncertainty as to whether the principal is dead or alive. The authority of the attorney in fact to act on behalf of the principal must be set forth in the power and may relate to any act, power, duty, right, or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property, including the power to consent or withhold consent on behalf of the principal to health care. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary. All acts done by the attorney in fact pursuant to the power during a period of physical disability or mental incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees, and personal representative as if the principal were alive, mentally competent, and not disabled physically.

(B) An instrument to which this section is applicable also may provide for successor attorneys in fact and provide conditions for their succession, which may include an authorization for the court to appoint a successor, and the succession may occur whether or not the principal then is physically disabled or mentally incompetent. The appointment of an attorney in fact under this section does not prevent a person or his representative from applying to the court and having a guardian or conservator appointed unless the power of attorney provides otherwise. Appointment of a guardian terminates all or part of the power of attorney that relates to matters within the scope of the guardianship, and appointment of a conservator terminates all or part of the power of attorney that relates to matters within the scope of the conservatorship.

(C) A power of attorney executed under the provisions of this section must be executed and attested with the same formality and with the same requirements as to witnesses as a will. In addition, the instrument must be probated and recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded. After the instrument has been recorded, whether recorded before or after the onset of the principal's physical disability or mental incompetence, it is effective notwithstanding the mental incompetence or physical disability. If the authority of the attorney in fact relates solely to the person of the principal, the instrument is effective without being recorded.

(D) The court, in its discretion, and at any time after the onset of physical disability or mental incompetence, on motion of an interested party or on its own motion, may require that an inventory of all deposits, choses in action, and personal property must be filed with the court, and a surety bond must be posted by the attorney in fact in the manner and amount applicable to a protected person's estate."

Time effective

SECTION 6. This act takes effect upon approval by the Governor.

Approved the 14th day of May, 1990.