CHANGES IN GUARDIANSHIP LAWS AND PLANNING FOR INCAPACITY – DEVELOPING YOUR LOVE ONE'S INDIVIDUAL LEGAL PLAN (ILP)

            Many families, concerned about the well-being of an adult family member or friend, have expressed a need for information about guardianship and conservatorship. Others have questions about what it means to have a guardian or conservator appointed for them.  On January 1, 2019, new laws went into effect in South Carolina regarding guardianship and conservatorship.  The goals were to clarify the process, provide comprehensive due process protections, and promote use of limited guardianships and conservatorships.  Obtaining guardianship or conservatorship is a very serious step to take because both significantly restrict a person’s individual rights and freedoms and should be considered only after careful consideration of all other alternatives have been explored.

            As an attorney whose practice is devoted to the aging population, I am often confronted with older adults who appear to be struggling to manage their financial or medical affairs. Questions arise regarding an individual’s competency based on advanced age, physical infirmities, and/or cognitive deficits.  Alzheimer’s disease, stroke, accidents or other serious medical conditions are examples of circumstances that can lead to incapacity. Understanding issues of capacity and the options available to these vulnerable elders and their loved ones is critical.

            The decision to seek guardianship is distressing and difficult for the alleged incapacitated individual (A.I.I.) and his or her family members for many reasons. The decision to seek guardianship can rip a family apart.  It is also very common for families to wait longer than they should to begin the guardianship process with a loved one who has become unable to care for themselves or manage their financial affairs. The reality is that many older adults have long periods toward the end of life when they’re no longer able to make rational decisions for themselves. In older adults, deciding when is the right time to file for guardianship is challenging. When an older adult initially shows signs of dementia, senility, memory loss, or other cognitive impairment, it is often tough to determine what might just be old age or forgetfulness and what might be signs of more serious issues.

            On the other hand, however, just because a family member has been diagnosed with a serious medical condition, does not necessarily mean that they are incapacitated or require guardianship strictly because of the diagnosis. Mental capacity is a spectrum.  It is dynamic, not static. Capacity varies as to time, task, and can be enhanced or facilitated.  When dealing with issues of questionable capacity, it is important to find a good time to meet with the A.I.I., avoid distractions, and provide necessary information in a variety of formats. Sometimes circumstances require meeting an A.I.I. outside of our law office in more familiar surroundings such as their home, hospital, or assisted living facility.  This is where most people are comfortable and more likely to be responsive to serious questions about themselves. 

            Under South Carolina law, guardianship and conservatorship can only be used when less restrictive alternatives are not available or appropriate.  A “less restrictive alternative” is defined as “the provision of supports and assistance . . . which maximizes the alleged incapacitated individual’s capacity for self-determination and autonomy in lieu of a guardianship or conservatorship.”  S.C. Code § 62-5-101(14).  “Supports and assistance” include:

(a) Systems in place for the alleged incapacitated individual to make decisions in advance or to have another person to act on his behalf, including, but not limited to, having an agent under a durable power of attorney, a health care power of attorney, a trustee under a trust, a representative payee to manage social security funds, a Declaration of Desire for Natural Death (living will), a designated health care decision maker under Section 44-66-30, or an educational representative designated under Section 59-33-310 et seq; and

(b) Reasonable accommodations that enable the alleged incapacitated individual to act as the principal decision maker, including, but not limited to, using technology and devices; receiving assistance with communication; having additional time and focused discussion to process information; providing tailored information oriented to the comprehension level of the alleged incapacitated individual; and accessing services from community organizations and governmental agencies.

If there are supports and assistance reasonably available, then a guardianship and conservatorship is not the answer.  An experienced elder law attorney helps clients determine whether legal action is needed, whether there are alternatives, and helps to craft an individualized legal plan.  Some important questions to ask are:

1.    Are there already documents in place that would avoid the necessity of filing a legal action?

2.    Is there a durable power of attorney for financial matters?

3.    Is there a health care power of attorney?

4.    Who is the agent? Is the agent actively involved?

5.    Is there any concern that the agent is neglecting or abusing his or her authority?

6.    Is there a trust in place for financial management?

7.    Does the client believe it is too late for the alleged incapacitated person to execute valid documents?

8.    What other alternatives have been tried unsuccessfully or eliminated and why?

            When your family member or loved one is incapable of managing their personal affairs, it is important to take the necessary legal action to protect their interests.  As a loved one, you want to help, but may not know how to go about obtaining guardianship or conservatorship, especially given the legal complexities involved.  After careful examination and ruling out less restrictive decision-making options, seeking guardianship may be a very necessary tool.  You should consult a knowledgeable and experienced attorney to assist you in South Carolina’s complex guardianship and conservatorship legal process and to explore other alternatives.  The Law Offices of Deirdre W. Edmonds, PA has experienced elder law attorneys to educate and advise you about options specific to your situation and help develop your loved one’s individual legal plan which does not, and should not, always result in petitioning the court for guardianship and/or conservatorship.

Michael Scott Large is a member of the Law Office of Deirdre W. Edmonds, PA.  Michael has been practicing law since 1991 and is licensed to practice law in South Carolina, Pennsylvania and New Jersey.  Michael is an active member of the South Carolina Bar currently serving on the Vulnerable Adult Task Force and Elder Law Committee.  Michael is a member of the National Association of Elder Law Attorneys, Horry County Bar, and serves on the Board of Directors for Champion Autism Network.