At some point in your life you may be faced with the difficult decision to pursue guardianship over a family member or loved one. Making the decision to petition for guardianship is rarely easy because it often feels as though you are takin away your loved one’s freedom and independence. If the person in question is your parent and you feel guardianship is needed because your parent is suffering from Alzheimer’s or another age related dementia disease it is important to keep in mind that failing to intervene could result in serious harm befalling your parent as a result of his or her incapacity. In order to be successful when you petition for guardianship you will have to show the court that the intended ward (the person in need of a guardian) meets the legal definition of “incapacitated”, leading you to ask “ How is incapacity defined in South Carolina? ”
In order to become a guardian you must file an official petition with the appropriate probate court in South Carolina. Notice and an opportunity to object must then be given to the intended ward as well as other interested parties. If an objection to the appointment of a guardian is filed the court will have to decide if a guardian is needed and if so, if you are an appropriate choice. For the court to determine that a guardian is warranted the court must find the intended ward to be incapacitated. Title 62 of the South Carolina Probate Code defines the term as follows:
“Incapacitated person” means 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.”
Proving incapacity typically requires the testimony of the intended ward’s treating physician if the claim of incapacity is based on a diagnosed medical or mental condition such as Alzheimer’s. The court may also request an independent evaluation of the intended ward to satisfy the court that a guardian is needed.
The court will look for the least restrictive alternative necessary to protect the intended ward, meaning that guardianship is usually a last resort. Guardianship is typically only granted when other, less restrictive, options are insufficient to protect the ward.
Petitioning for guardianship is a lengthy, and often complicated, process. If you have additional questions or concerns about incapacity and/or guardianship in the State of South Carolina, contact the experienced South Carolina estate planning attorneys at Kuhn & Kuhn Law Firm by calling 843-577-3700 to schedule your appointment.
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