In the state of South Carolina, a temporary guardianship is a short-term appointment of a person as a legal guardian of another. “Ward” is the legal term for a person, such as an incapacitated adult or minor child, for whom the court is responsible.
A guardian for a ward makes decisions regarding the ward’s health care, education, maintenance and support.
Different Types of Wards
The South Carolina Probate Court appoints a temporary guardian of an incapacitated adult. The term “incapacitated” means the individual may temporarily or permanently be unable to make their own decisions. For example, a person who has been hospitalized for a severe mental health issue is incapacitated.
A guardian for an incapacitated adult makes personal decisions on the ward’s behalf, such as the selection of an assisted living facility to house the incapacitated adult.
The South Carolina Family Court appoints a temporary guardian of a minor child. A temporary guardian of a minor typically has legal custody to make decisions for the minor, such as where the child should go to school, as well as physical custody.
What Is a Guardian ad Litem?
A court appoints a guardian ad litem (GAL) to advocate for the best interests of a child or an incapacitated adult in court proceedings. A guardian ad litem does not serve as a legal guardian for a child or incapacitated adult.
A guardian ad litem is often a person licensed in South Carolina in law, social work, nursing, medicine or psychology. Alternatively, a guardian ad litem can be a person who has completed training to the satisfaction of the court.
What Is a Conservatorship?
A conservator is a competent adult or entity appointed by the court to make financial decisions for a minor or incapacitated adult. A conservator cares for and manages the property or estate of the ward.
Financial decisions typically include those relating to the ward’s property, bank accounts and bills. For example, a conservator, not a temporary guardian, would decide whether to open a savings account for the incapacitated adult.
Requirements for a Guardian
The court determines how long a temporary guardianship lasts. In order to be a guardian for an incapacitated adult, a person must be a competent adult, meaning a person 18 or above who is of sound mind.
A family member is among the preferred choices for a guardian for an incapacitated adult. The priority of those individuals to be appointed as a guardian of an incapacitated adult are:
- Person nominated by the incapacitated adult to serve as their guardian.
- Individual whom the incapacitated adult appointed in a power of attorney.
- Spouse of the incapacitated adult.
- Adult child of the incapacitated adult.
- Parent of the incapacitated adult, including a person nominated by will or other writing signed by a deceased parent, such as a will.
- Other relative of the incapacitated adult.
- Individual nominated by the person who is caring for the incapacitated adult or the person/entity paying benefits to the incapacitated adult.
A guardian for a child must be an adult who is fit to make important decisions for a minor. A person whom a deceased parent names in their will as the preferred choice for a guardian may have priority. This is up to the Family Court judge that is hearing the case.
Factors Weighed in Appointing a Guardian
A person who has been convicted of an offense involving abuse, neglect or abandonment of a child may not be appointed as guardian.
The court considers certain factors when appointing a guardian for a child, including the guardian’s age, amount of income, source of income, dwelling place and criminal history. The court may also consider the child’s age and needs.
Grandparents as Guardians
A grandparent does not automatically have priority to become the guardian of a minor child, but can tell the court why their relationship with the child is a factor that qualifies them to be the child's guardian.
A person who wants to become a temporary guardian in South Carolina should file the petition in the county in which the incapacitated adult or minor child lives. If the incapacitated adult or child is committed to an institution under court order, the petitioner can file their petition in the county in which that institution is located.
Procedure for Guardianship of Incapacitated Adult
A person who wants to become a temporary guardian for an incapacitated adult should:
- File a summons and petition with the local Probate Court.
- Serve the summons and petition.
- Pay the $150 filing fee to the court.
There is no standard court form to file to become a guardian for an incapacitated adult. Notice of the petition must be served upon the incapacitated person, their spouse, their parents and their adult children.
Then two examiners appointed by the court, including one physician, must examine the incapacitated adult to determine that they are incapacitated. After this, the Probate Court will appoint a visitor.
Court Appointment of an Attorney
The visitor meets with the incapacitated adult to determine if their environment is safe and to learn more information about them, such as their personal needs. Next, the court appoints an attorney with the duties of a guardian ad litem (GAL). The incapacitated adult has the right to be represented by legal counsel.
The attorney does not have to be the same person as the actual GAL. The court will hold a hearing as to whether the person who filed the petition will be named as guardian. At the hearing, the incapacitated adult may speak to the probate court judge.
Procedure to Be Appointed Guardian of Minor Child
A person who wants to become a temporary guardian for a minor child should file a petition in the Family Court where the child lives. There is no standard form or template to petition to become a temporary guardian of a minor. The Family Court holds a hearing as to whether it will appoint the petitioner as guardian for the child.
A court appoints a guardian based on the “best interests of the child” standard. This is defined as the arrangement or guardian that will best support the child’s needs and well-being. A legal guardianship of a child terminates when the child reaches the age of 18.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.