South Carolina Guardianship Planning Guide

If something happens to you, who takes care of your children? Who makes decisions for you if you can no longer make them yourself? Guardianship planning answers those questions before a crisis forces the issue. In South Carolina, Title 62, Article 5 of the South Carolina Code governs guardianship and conservatorship for adults, and planning ahead gives you real control over the outcome.

South Carolina splits the job into two roles. A guardian handles the person. A conservator handles the money. This guide walks you through both, plus guardianship for minors, emergency situations, and the documents that can keep your family out of court entirely.

Guardian vs. Conservator in South Carolina

South Carolina draws a sharp line between two roles, and both run through the Probate Court.

• A guardian is responsible for the incapacitated person, called the ward. The guardian decides where the ward lives, arranges medical care, and handles personal and rehabilitative decisions (S.C. Code 62-5-301 and following).
• A conservator is responsible for the ward's estate. The conservator manages money, property, and financial affairs (S.C. Code 62-5-401 and following).

One person can serve as both, but each role is appointed under its own petition and its own standard. A guardian does not control the ward's property unless the court also appoints that same person as conservator.

This split matters when you plan. If you only need someone to make medical and housing decisions, you may need a guardian alone. If the concern is bank accounts, a home, or an inheritance, that is conservator territory.

Guardianship for Minor Children

Here is where South Carolina differs from many states. The Probate Court does not decide custody or guardianship of a minor's person. Under S.C. Code 62-5-201, the Probate Court has no jurisdiction over the care, custody, and control of a minor. That responsibility belongs to the Family Court.

Who Decides Custody If Both Parents Die

If both parents die or lose their parental rights, the Family Court appoints a guardian for the child's person. South Carolina Code 63-3-530(A)(45) gives the Family Court jurisdiction to hear actions concerning control of the person of a minor, including guardianship of the minor.

You can guide that decision. Name the person you want to raise your children in your will, and talk with them first so they are willing to serve. The court weighs the best interest of the child, and a clear written nomination from a parent carries real weight.

Managing a Child's Money: The Conservator

The Probate Court does handle one part of a minor's case: the money. If a child inherits assets or recovers a legal settlement, the Probate Court can appoint a conservator to manage that property until the child turns 18 (S.C. Code 62-5-402).

For a minor's settlement, South Carolina sets thresholds under S.C. Code 62-5-433:

When a child receives more than a small amount, the court usually directs the funds into a conservatorship, a restricted account, or a structured settlement so the money is protected until adulthood.

Guardianship and Conservatorship for Adults

When It Becomes Necessary

If an adult can no longer manage their own affairs and has no planning documents in place, no power of attorney and no health care power of attorney, someone must petition the Probate Court. Article 5 governs the whole process.

Common situations include a parent with advanced dementia, an adult child with a severe disability, a spouse after a brain injury, or an elderly relative who can no longer handle money safely.

The Court Process, Step by Step

South Carolina rebuilt this process in 2019 to add strong due-process protections. Here is how a standard case moves.

1. File a summons and petition. Any person interested in the individual's welfare files in the Probate Court of the county where the person lives. The petition must explain why guardianship or conservatorship is needed and why less restrictive options will not work (S.C. Code 62-5-303).
2. Serve notice and the right to counsel. The petitioner serves the summons, petition, and a notice of the right to counsel on the alleged incapacitated individual and interested parties.
3. Appoint counsel, a guardian ad litem, and an examiner. If the person has not hired a lawyer within 15 days, the court appoints one. Within 30 days, the court appoints a guardian ad litem and an examiner. The examiner must be a physician or nurse practitioner, and at the court's discretion a physician assistant or psychologist (S.C. Code 62-5-303).
4. Examination and reports. The examiner evaluates the person and reports on the nature and extent of incapacity. The guardian ad litem investigates and reports on the person's best interest and whether a less restrictive alternative fits (S.C. Code 62-5-106).
5. Hearing. The person has the right to attend, to a lawyer, to present evidence, and to cross-examine witnesses. Incapacity must be proven by clear and convincing evidence (S.C. Code 62-5-304).
6. Appointment. If the court finds incapacity and that no lighter option will work, it appoints a guardian, a conservator, or both, using the least restrictive form (S.C. Code 62-5-304 and 62-5-308).

Limited vs. Full Guardianship

South Carolina law favors the least restrictive option. Under S.C. Code 62-5-304, the court can create a limited guardianship and remove only the specific rights the person cannot exercise. The person keeps every right the court does not take away, and the limits are written right onto the guardian's letters of appointment.

A person under limited guardianship might keep the right to vote or make small everyday choices while the guardian handles medical decisions and where they live. Full guardianship, where the guardian decides everything, is the last resort.

Who the Court Appoints First

S.C. Code 62-5-308 sets a priority order for who serves as guardian. A guardian the individual nominated while still mentally capable, or one named by the person's agent under a durable power of attorney, sits near the top. The court generally honors that choice unless there is good cause to pick someone else. This is why naming your preference in advance matters so much.

Emergency and Temporary Appointments

Sometimes a person faces immediate harm and there is no time for the full process. S.C. Code 62-5-108 lets the Probate Court grant emergency or temporary relief.

• A verified petition or affidavit must show that immediate and irreparable harm to the person or estate will occur before regular notice can be given.
• A supporting affidavit or report from a physician or nurse practitioner backs up the need.
• If the court acts without notice first, it must set a hearing quickly, no later than 10 days from the order.
• A temporary order issued after notice expires six months from the date it is issued, though the court can continue relief if the conditions still exist.

Emergency authority is narrow. The temporary fiduciary may act only as the order allows, and once a permanent guardian or conservator is appointed, the temporary role ends and an accounting goes to the court.

Guardian and Conservator Duties

Once appointed, both roles carry ongoing legal duties to the ward and to the court.

A guardian must:

• Take custody of the ward and set the ward's residence within the state
• Provide for the ward's care, comfort, and maintenance, and arrange medical, educational, and rehabilitative services
• File a plan of care and update it as needs change
• Report the ward's condition to the court at least once a year (S.C. Code 62-5-309)
• Act in the ward's best interest and respect any rights the ward keeps under a limited guardianship

A conservator must:

• Inventory the estate and manage the property prudently
• Keep the protected person's funds separate from the conservator's own
• File the inventory and annual accountings with the court
• Get court authority for major actions outside the standard powers in S.C. Code 62-5-422, such as selling real estate or running a business

The court supervises qualification, bonding, and reporting case by case. Conservators handling real assets are often required to post a bond.

Alternatives to Guardianship

Before granting guardianship or conservatorship, South Carolina courts require the petitioner to explain why less restrictive options will not work (S.C. Code 62-5-303). Many families never need a court appointment at all. Here are the main alternatives, ordered from least to most restrictive.

The best time to sign a power of attorney and a health care power of attorney is before you need them. Once someone loses capacity, those documents can no longer be created, and court-appointed guardianship becomes the only path left.

How This Fits Into Your Estate Plan

Guardianship planning is one piece of a broader estate plan. The documents you sign while healthy do the heavy lifting.

• A durable power of attorney lets your chosen agent handle finances, which can replace the need for a conservator.
• A health care power of attorney lets your agent make medical decisions, which can replace the need for a guardian.
• A will names who you want to raise your minor children and directs how your property passes.
• A revocable living trust lets a successor trustee manage your assets if you become incapacitated, with no court involvement.

If a family member dies and you are settling an estate, our South Carolina probate guide walks through that separate process. For a wider view of how these pieces connect, start with our South Carolina estate planning basics guide.

Common Mistakes

Assuming the Probate Court handles custody of your kids. It does not. Custody of a minor's person goes through the Family Court, while the Probate Court handles a minor's money. Name a guardian for your children in your will.

Skipping the power of attorney. A durable power of attorney and a health care power of attorney can keep your family out of a guardianship case entirely. Sign them while you have capacity.

Confusing guardian and conservator. A guardian over the person does not control the ward's bank accounts. If finances are the issue, you need a conservator.

Forgetting to update designations. A choice made 15 years ago may name someone who has moved, fallen ill, or is no longer the right fit. Review your documents after every major life change.

The Bottom Line

South Carolina guardianship and conservatorship for adults run through the Probate Court under Title 62, Article 5, with strong due-process steps: appointed counsel, a guardian ad litem, an examiner, and a clear-and-convincing-evidence standard. Custody and guardianship of a minor's person belong to the Family Court, while a minor's property is managed by a Probate Court conservator.

You can avoid most of this. Sign a durable power of attorney and a health care power of attorney, name guardians for your children in your will, and consider a living trust. These steps take a few hours and protect your family for years. If your situation involves a family member who is already showing signs of incapacity, talk with a South Carolina elder law attorney about the right mix of guardianship, conservatorship, and planning documents.

Official Sources

• S.C. Code Title 62, Article 5 (Protection of Persons Under Disability and Their Property)
• S.C. Code Title 63, Chapter 3 (Family Court Jurisdiction)
• South Carolina Judicial Branch (Probate Court)

Sources

• South Carolina Code of Laws (Title 62, South Carolina Probate Code)
• South Carolina Bar: Family Law Resources

This guide is general information, not legal advice. Consult a qualified attorney about your situation. It is not legal advice.