Don’t Get “Blindsided” by a Guardian or Conservator
By Irv Condon, Judge of Probate Court, Charleston County and Dena Byrum, Judicial Law Clerk
News of Michael Oher’s challenge to his conservatorship has again stirred up controversy over guardianships and conservatorships. Just after “Free Britney,” another famous person is complaining. So, what is a guardian and a conservator and how can you protect yourself from being blindsided?
Guardians Take Care of the Person
A guardian is given the power to manage another person’s medical decisions. A judge appoints the guardian after a hearing. The person appointed is the “guardian.” The person under a guardianship is the “ward.” During the process, an attorney protects the ward’s legal rights, and a Guardian ad Litem advocates the ward’s best interests. Probate Courts supervise adults under guardianship. Charleston County currently supervises 687 adult wards.
A famous example of a guardianship today is pop star Britney Spears which began in 2007 when she very publicly showed signs of mental illness. In November 2021 court oversight ended for Spears primarily because of public outcry. Spears’ fans pointed out the contradiction between a woman who was deemed incapacitated to manage her own affairs but who routinely managed to perform on stage in complicated productions.
How to Avoid A Guardianship
Engage an attorney to execute your Health Care Power of Attorney (HCPOA) and appoint an agent, usually a family member, to make your medical decisions when you cannot. Courts and medical providers recognize the HCPOA. You should only execute a HCPOA with someone who knows your wishes and who you trust to carry them out.
Conservators Manage the Finances
A conservator is a person appointed by a court to manage the finances of an individual called a protected person. South Carolina Probate Courts supervise both adult and minor conservatorships. The Charleston County Probate Court currently supervises 470 adult and 252 minor conservatorships and 31 trusts.
Conservatorship is in the news because of Michael Oher’s conservatorship which was executed after he turned 18 and began to play college football. He played in the NFL and became the subject of the Movie, “The Blind Side,” which told his story of being taken in by the Tuohy family at age 16.
According to Court filings, Mr. Oher believed he was signing paperwork to be adopted but instead was consenting to a conservatorship. Although his conservatorship was to end by the age of 25 or by court action, somehow it was never ended, which is the subject of Oher’s legal action.
How to Avoid A Conservatorship
Engage an attorney to execute your Financial Durable Power of Attorney (POA) and appoint an agent to handle your finances when you cannot or also establish a living trust. A POA is durable so it can be used by your agent when you become incapacitated. Record your POA at the Register of Deeds but remember that a POA is not court supervised. Only choose someone you trust to be your agent. Under a living trust, a trustee manages your property during your life or incapacity and the trust acts as a will substitute on your demise.
How to Get A Guardian or Conservator Appointed
Appointing a guardian or conservator is a legal process that generally requires the services of an attorney. Most frequently asked questions can be found on the South Carolina Courts website at sccourts.org. Best practices can be found the National Guardianship Association website at guardianship.org. Other useful information can be found at the National Center for State Courts website at eldersandcourts.org and at the Center for Guardianship Certification website at guardianshipcert.org.
Safeguards in South Carolina
South Carolina Probate Courts appoint and supervise guardians and conservators. Despite media reports of abuses, there are protections in place. All appointees have background checks; conservators post a performance bond, must use restricted accounts, and need court approval for most expenditures. They also must submit annual reports and accountings.
The Charleston County Probate Court takes additional measures to ensure the protection of wards by administering a volunteer program where law students and volunteers are trained and perform wellness checks on wards. Courts can also end the case when a ward or protected person regains capacity to act on their own.
Our best advice is to engage an attorney for estate planning. Your attorney has valuable tools in making sure your wishes are honored. These legal tools can act as your left tackle to protect you from being blindsided by the need for a court to appoint a fiduciary if you become incapacitated.