When Suing Your Parents is your Only Option


by Chadwicke L. Groover, Attorney at Law, Upstate Elder Law 

A growing number of adult children are facing the situation where one or more of their parents are no longer able to care for themselves or their finances and have failed to sign a Durable Power of Attorney or Healthcare Power of Attorney. This situation is problematic because once your parent is incapacitated, there is no one who has legal authority to make decisions for them.

In these cases, the adult child often has no recourse but to Petition the Probate Court to appoint someone as a Guardian and/or Conservator. A Guardian is an individual who is charged with the oversight of the care of an incapacitated person. A Conservator manages a person’s finances.

To have a Guardian and/or Conservator appointed is a difficult, stressful and expensive process. The family member (or otherwise interested party) files a Petition with the Probate Court alleging that the elderly person is incapacitated and in need of a Guardian and/or Conservator. The Court deems a person to be incapacitated when he or she is so impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age or other cause that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person or property (S.C. Code §62-5-101(1)).

The Petition requests the appointment of a specific person to be appointed. This Petition and a Summons must then be personally served upon the alleged incapacitated person and all family members who have priority to be appointed. The list of those who have priority is found in S.C Code §62-5-311.

After the Petition is served, the Probate Court will send a social worker called a “Visitor” to see the alleged incapacitated person and observe his or her condition. The Visitor then files a report with their findings. In addition to the Visitor, the Court will also appoint an attorney to serve as “Counsel” for the alleged incapacitated person, if they don’t already have their own attorney. The Counsel represents the alleged incapacitated person in the protective proceeding. The Counsel also serves in the capacity of a guardian ad litem, representing to the Court what he or she believes is in the best interest of the alleged incapacitated person.

The Court will then schedule a protective proceeding to determine whether the individual is incapacitated and whether the proposed Guardian and/or Conservator is fit and capable to serve. Prior to the protective proceeding the alleged incapacitated person must be examined by two court appointed examiners one of whom must be a medical doctor. In order for a permanent Guardian to be appointed, both of the examiners must submit a sworn affidavit finding that the person is incapacitated. Only one affidavit is required for the appointment of a Conservator. The alleged incapacitated person is entitled to be present at the protective proceeding and may present witnesses and cross examine the Petitioner’s witnesses.

If the Court finds that the individual is truly incapacitated the Court will appoint a Guardian and/or Conservator. The Guardian will have the responsibility for making healthcare decisions for the incapacitated person. On the anniversary of appointment, the Guardian must file an annual report with the Probate Court detailing the condition of the incapacitated person and his or her estate. The report also must contain a recent picture of the incapacitated person.

In most cases, prior to appointment, the proposed Conservator will have to obtain a surety bond in the amount of the incapacitated person’s assets. Once appointed, the Conservator would then be responsible for managing the assets. The Conservator would submit a budget to the Probate Court for all the regularly occurring expenses. Any expenditures not included in the budget would require approval by the Court.

To avoid this unfortunate situation, it is wise to have a talk with your parents before they are incapacitated to make sure that they have a plan in place. This plan should include a Durable Power of Attorney appointing someone to assist them in managing their finances and a Healthcare Power of Attorney appointing a person to make medical decisions when they no longer are able.