2018 South Carolina Code of Laws
Title 62 - South Carolina Probate Code
ARTICLE 5 - PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
Section 62-5-408. Permissible court orders.

Universal Citation: SC Code § 62-5-408 (2018)

Section effective until January 1, 2019. See, also, Sections 62-5-107, 62-5-108, 62-5-404, 62-5-405, 62-5-414, 62-5-422, and 62-5-423 effective January 1, 2019.

The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:

(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing upon such notice by the court as is reasonable under the circumstances, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the person to be protected as may be required for his benefit or the benefit of his dependents; however, notice of such actions of the court shall be given to interested parties as soon thereafter as practicable.

(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family, and members of his household.

(3)(a) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and of his estate and fulfillment of his legal obligations of support of dependents, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to:

(i) make gifts as the court, in its discretion, believes would be made by the person if he were competent;

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

(iii) exercise or release the person's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;

(iv) enter into contracts;

(v) create or amend revocable trusts or create irrevocable trusts of property of the estate which may extend beyond the person's disability or life;

(vi) fund trusts;

(vii) exercise options of the disabled person to purchase securities or other property;

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

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

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

(xi) ratify any such actions taken on the person's behalf.

(b) In order to exercise, or direct the exercise of the court's authority in any powers set forth in item (a), the court must entertain a petition in which the specific relief sought is set forth, the incapacitated person, his known heirs, devisees, donees, and beneficiaries are made parties to the action, and which contains a statement that the person either is incapable of consenting or has consented to the proposed exercise of power.

(c) In exercising the powers set forth in item (b), the court also must inquire into and consider any known lifetime gifts or the estate plan of the person, the terms of any revocable trust of which he is grantor, and any contract, transfer, or joint ownership arrangements with provisions for payment or transfer of benefits or interests at his death to another which he may have originated. In exercising the court's authority set forth in item (b), the court must set forth in the record specific findings upon which it has based its ruling.

(4) An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person, except to the extent the order affects his estate or affairs.

HISTORY: 1986 Act No. 539, Section 1; 2000 Act No. 398, Section 10.

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