2018 South Carolina Code of Laws
Title 62 - South Carolina Probate Code
ARTICLE 5 - PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
Section 62-5-101. Definitions and use of terms.
Section effective January 1, 2019. See, also, Sections 62-5-101 and 62-5-106 effective until January 1, 2019.
Unless otherwise apparent from the context, in this article:
(1) "Adult" means an individual who has attained the age of eighteen or who, if under eighteen, is married or has been emancipated by a court of competent jurisdiction.
(2) "Alleged incapacitated individual" means:
(a) an adult for whom a protective order is sought;
(b) an adult for whom the appointment of a guardian is sought; or
(c) an adult for whom a determination of incapacity is sought.
(3) "Conservator" means a person appointed by the court to manage the estate of a protected person.
(4) "Counsel for alleged incapacitated individual" means a person authorized to practice law in the State of South Carolina who represents the alleged incapacitated individual in a guardianship proceeding or a protective proceeding. Counsel shall represent the expressed wishes of the alleged incapacitated individual to the extent consistent with the rules regulating the practice of law in the State of South Carolina.
(5) "Court" means the probate court.
(6) "Disabled" means the medically determinable physical or mental impairment of a minor or an adult as defined by 42 U.S.C. Section 1382c, as amended.
(7) "Emergency" means circumstances that are likely to result in substantial harm to the alleged incapacitated individual's health, safety, or welfare or in substantial economic loss to the alleged incapacitated individual.
(8) "Foreign conservator" means a conservator or a person with the powers of a conservator of another jurisdiction.
(9) "Guardian" means a person appointed by the court as guardian, but excludes one who is a guardian ad litem. A guardian shall make decisions regarding the ward's health, education, maintenance, and support.
(10) "Guardian ad litem" means a person licensed in the State of South Carolina in law, social work, nursing, medicine, or psychology, or who has completed training to the satisfaction of the court, and who has been appointed by the court to advocate for the best interests of the alleged incapacitated individual.
(11) "Guardianship proceeding" means a formal proceeding to determine if an adult is an incapacitated individual or in which an order for the appointment of a guardian for an adult is sought or has been issued.
(12) "Incapacitated individual" means an individual who, for reasons other than minority, has been adjudicated as incapacitated.
(13) "Incapacity" means the inability to effectively receive, evaluate, and respond to information or make or communicate decisions such that a person, even with appropriate, reasonably available support and assistance cannot:
(a) meet the essential requirements for his physical health, safety, or self-care, necessitating the need for a guardian; or
(b) manage his property or financial affairs or provide for his support or for the support of his legal dependents, necessitating the need for a protective order.
(14) "Less restrictive alternative" means the provision of support and assistance as defined in this section which maximizes the alleged incapacitated individual's capacity for self-determination and autonomy in lieu of a guardianship or conservatorship.
(15) "Net aggregate amount" means the total sum of payments due to a minor or incapacitated individual after subtracting all outstanding reimbursements and relevant deductions.
(16) "Party" means the alleged incapacitated individual, ward, protected person, petitioner, guardian, conservator, or any other person allowed by the court to be a party in a guardianship proceeding or protective proceeding, including those listed in Section 62-5-303, Section 62-5-402, and Section 62-5-403.
(17) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(18) "Protected person" means an individual for whom a conservator has been appointed or other protective order has been issued.
(19) "Protective order" means an order appointing a conservator or relating to the management of the property of:
(a) an incapacitated individual;
(b) a minor;
(c) a person who is confined, detained by a foreign power, or who has disappeared; or
(d) a person who is disabled and in need of a court order to create and establish a special needs trust for such person's benefit.
(20) "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
(21) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(22) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(23) "Supports and assistance" includes:
(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 to Section 59-33-370; 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.
(24) "Ward" means an adult for whom a guardian has been appointed.
HISTORY: 1986 Act No. 539, Section 1; 1990 Act No. 521, Section 81; 2008 Act No. 303, Section 1, eff June 11, 2008; 2010 Act No. 244, Section 24, eff June 7, 2010. Formerly Code 1976 Sections 62-5-101 and 62-5-106, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.
Code Commissioner's Note
At the direction of the Code Commissioner, in (23)(a), "Section 59-33-310 to Section 59-33-370" was substituted for "Section 55-33-310 to Section 55-33-370" to correct a scrivener's error.