2018 South Carolina Code of Laws
Title 62 - South Carolina Probate Code
Section 62-5-403. Protective proceedings; incapacitated and disabled persons.

Universal Citation: SC Code § 62-5-403 (2018)

Section effective January 1, 2019. See, also, Sections 62-5-401 and 62-5-404 effective until January 1, 2019.

(A) A person seeking a finding of incapacity, appointment of a conservator, or issuance of a protective order must file a summons and petition if:

(1) the individual is unable to manage his property or affairs effectively for reasons of incapacity, confinement, detention by a foreign power, or disappearance; and

(a) the individual has an agent pursuant to a durable power of attorney and the actions necessary to prevent waste or dissipation of the individual's property are not being adequately performed by or are beyond the authority of the agent; or

(b) the individual has no agent under a durable power of attorney and owns property that will be wasted or dissipated or which is needed for the health, education, maintenance, or support of the individual or those entitled to his support, and protection is necessary to obtain or administer the funds.

(2) a protective order is necessary to create a special needs trust for an individual who is disabled in accordance with Social Security Administration guidelines.

(B) The petition shall set forth, to the extent known or reasonably ascertainable, the following information:

(1) interest of the petitioner;

(2) name, age, current address, and contact information of the alleged incapacitated individual, who must be designated as the respondent;

(3) physical location of the alleged incapacitated individual during the six-month period immediately preceding the filing of the summons and petition; and, if the alleged incapacitated individual was not physically present in South Carolina for that period, sufficient information upon which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;

(4) to the extent known and reasonably ascertainable, the names and addresses of the following persons, who must be designated corespondents:

(a) the alleged incapacitated individual's spouse and any adult children; or if none, his parents; or if none, at least one of his adult relatives with the nearest degree of kinship;

(b) a person known to have been appointed as agent under a general durable power of attorney or health care power of attorney;

(c) a person who has equal or greater priority for appointment pursuant to Section 62-5-408 as the person whose appointment is sought in the petition;

(d) a person other than an unrelated employee or health care worker who is known or reasonably ascertainable by the petitioner to have materially participated in the caring for the alleged incapacitated individual within the six-month period preceding the filing of the petition; and

(e) the person entitled to notice on behalf of the VA, if the alleged incapacitated individual is receiving VA benefits;

(5) name and address of the proposed conservator and the basis of his priority for appointment;

(6) reason why conservatorship is necessary, including why less restrictive alternatives are not available and appropriate, and a brief description of the nature and extent of the alleged incapacity;

(7) a statement of any rights the petitioner is requesting be removed from the alleged incapacitated individual, any restrictions to be placed on the alleged incapacitated individual, and any restrictions sought to be imposed on the conservator's powers and duties;

(8) a general statement of the alleged incapacitated individual's assets, with an estimated value, and the source and amount of any income of the alleged incapacitated individual; and

(9) whether the alleged incapacitated individual has been rated incapable of handling his estate and monies on examination by the VA and, if so, shall state the name and address of the person to be notified on behalf of the VA.

(C) An alleged incapacitated individual seeking the appointment of a conservator or issuance of a protective order may file a summons and petition with the information specified in subsection (B).

(D) When more than one petition is pending in the same court, the proceedings may be consolidated.

HISTORY: 1986 Act No. 539, Section 1; 2010 Act No. 244, Section 30, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 3, eff June 9, 2016. Formerly Code 1976 Sections 62-5-401 and 62-5-404, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-403 was titled Venue, and had the following history: 1986 Act No. 539, Section 1. See now, Code 1976 Section 62-5-401.

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