2018 South Carolina Code of Laws
Title 62 - South Carolina Probate Code
Section 62-5-405. Protective arrangements.

Universal Citation: SC Code § 62-5-405 (2018)

Section effective January 1, 2019. See, also, Sections 62-5-408 and 62-5-409 effective until January 1, 2019.

(A) When it is established in a formal proceeding that a basis exists for affecting a protective arrangement that concerns the property and affairs of a minor or an incapacitated individual, the court may:

(1) without appointing a conservator, authorize, direct, or ratify any provision within a protective arrangement that is in the best interest of the minor or incapacitated individual. A protective arrangement includes, but is not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; or the addition to or establishment of a suitable trust.

(2) authorize a conservator or a special conservator to exercise the power to perform the following acts:

(a) make gifts as the court, in its discretion, believes would be made by the protected person;

(b) convey or release the protected person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;

(c) create or amend revocable trusts or create irrevocable trusts of property of the protected person's estate that may extend beyond the protected person's disability or life, including the creation or funding of a special needs trust or a pooled fund trust for disabled individuals;

(d) fund trusts;

(e) exercise the protected person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender policies for their cash value;

(f) exercise the protected person's right to an elective share in the estate of a deceased spouse;

(g) renounce any interest by testate or intestate succession or by inter vivos transfer;

(h) ratify any such actions taken on behalf of the protected person.

(B) When acting as conservator or when approving a conservator's or special conservator's action, the court may consider the:

(1) wishes of the protected person;

(2) financial needs and legal obligations of the protected person and those who are dependent upon him for support;

(3) tax consequences;

(4) protected person's eligibility or potential eligibility for governmental assistance;

(5) protected person's previous pattern of giving or level of support;

(6) protected person's gifting and estate plan; and

(7) protected person's life expectancy and the probable duration of incapacity.

(C) Prior to issuing a protective order, the court shall consider whether appointment of a conservator is necessary. The court shall set forth specific findings upon which the court bases its order authorizing a protective arrangement. For purposes of issuing a consent order, counsel may consent on behalf of the protected person.

(D) The petitioner shall serve all heirs and devisees of the incapacitated individual whose identity and whereabouts are reasonably ascertainable with the petition seeking a protective order to perform one or more actions set forth in subsection (A)(2).

HISTORY: 1986 Act No. 539, Section 1; 2000 Act No. 398, Section 10. Formerly Code 1976 Sections 62-5-408 and 62-5-409, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-405 was titled Service of summons and petition; notice of hearing; waiver of notice by person to be protected, and had the following history: 1986 Act No. 539, Section 1; 1997 Act No. 152, Section 23; 2010 Act No. 244, Section 32, eff June 7, 2010; 2016 Act No. 278 (S.777), Section 4, eff June 9, 2016. See now, Code 1976 Sections 62-5-403A and 62-5-403C.

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