2019 South Carolina Code of Laws
Title 62 - South Carolina Probate Code
Article 5 - Protection Of Persons Under Disability And Their Property
Section 62-5-428. Actions for requests subsequent to appointment; procedures.

Universal Citation: SC Code § 62-5-428 (2019)

(A)(1) Upon filing of an application with the appointing court, the protected person, the conservator, or interested person may request an order:

(a) requiring, increasing, or reducing bond or security;

(b) requiring an accounting;

(c) terminating a conservatorship when the estate has a net aggregate amount of less than fifteen thousand dollars;

(d) terminating a conservatorship and approving a final accounting at the death of the protected person;

(e) terminating a conservatorship and approving a final accounting when a protected person who is incapacitated solely by reason of minority attains the age of eighteen or is emancipated by court order;

(f) approving payment of the protected person's funeral expenses;

(g) accepting the resignation of or removing the conservator for good cause and appointing a temporary or successor conservator, if necessary;

(h) adjudicating the restoration of the protected person's capacity.

(2) The court may approve or deny the application without notice, require notice to such persons as the court directs, or may require the commencement of a formal proceeding pursuant to Section 62-5-428(B).

(3) If the court determines that the protected person's estate has a net aggregate amount of less than fifteen thousand dollars, the court may in its discretion, terminate the conservatorship.

(4) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into the conservator's possession, inform the personal representative or a beneficiary named in the will of the delivery, and retain the estate for delivery to a duly appointed personal representative of the deceased protected person or other persons entitled to delivery. If, after thirty days from the death of the protected person, no person has been appointed personal representative and no application or petition for appointment is pending in the court, the conservator may apply for appointment as personal representative. A person must not be disqualified as a personal representative of a deceased protected person solely by reason of his having been appointed or acting as conservator for that protected person.

(B)(1) Upon filing of a summons and petition with the appointing court, the protected person, the conservator, or interested person may request an order:

(a) terminating a conservatorship;

(b) requiring distributions from the protected person's estate after the conservator has denied the request;

(c) upon the death of a conservator, appointing a successor conservator, if necessary;

(d) limiting or expanding the conservatorship;

(e) authorizing a transaction involving a conflict of interest pursuant to Section 62-5-419;

(f) reviewing the denial of an application pursuant to Section 62-5-422(C); or

(g) granting other appropriate relief.

(2) The procedure for obtaining orders subsequent to appointment is as follows:

(a) The summons and petition shall state the relief sought and the reasons the relief is necessary and must be served upon the protected person; the conservator; the guardian, if any; the spouse; adult children; and parents of the protected person whose whereabouts are reasonably ascertainable; and, if there is no spouse, adult child, or parent, any person who has equal or greater priority for appointment; any person with whom the protected person resides outside of a health care facility, group home, homeless shelter, or prison; and the Secretary of the Department of Veterans Affairs if the conservatorship is for the purpose of receiving veterans benefits.

(b) After filing and service of the summons and petition, the court may appoint a guardian ad litem and may appoint counsel for the protected person, unless the protected person has private counsel, and such examiners as are needed to evaluate and confirm the allegations of the petition.

(c) As soon as the interests of justice may allow, but after the time for response to the petition has elapsed as to all parties served, the court shall hold a hearing on the merits of the petition. The protected person and all parties not in default must be given notice of the hearing. If all parties not in default waive a hearing, the court may issue a consent order.

(d) The court may issue interim orders, for a period not to exceed ninety days, until a hearing is held and a final order is issued.

(C) The court may specify a minimum period, not exceeding one year, during which no application or petition for readjudication may be filed without leave of court. Subject to this restriction, the protected person or the conservator may petition the court for a termination of incapacity or of the protective order, which must be proved by a preponderance of the evidence.

(D) An attorney who has been asked by the protected person to represent him in an action under this section may file a motion with the court for permission to represent the protected person.

HISTORY: 1986 Act No. 539, Section 1; 2008 Act No. 303, Section 1, eff June 11, 2008; 2010 Act No. 244, Section 36, 39, eff June 7, 2010. Formerly Code 1976 Sections 62-5-106, 62-5-415, 62-5-416, 62-5-426, and 62-5-430, renumbered and amended by 2017 Act No. 87 (S.415), Section 5.A, eff January 1, 2019.

Editor's Note

Prior Laws: Former Section 62-5-428 was titled Claims against protected person; enforcement, and had the following history: 1986 Act No. 539, Section 1; 1997 Act No. 152, Section 26; 2010 Act No. 244, Section 38, eff June 7, 2010. See now, Code 1976 Section 62-5-426.

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