ARTICLE 5 - PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
Title 62 - South Carolina Probate Code
ARTICLE 5.
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
PART 1.
GENERAL PROVISIONS
SECTION 62-5-101. Definitions and use of terms.
Unless otherwise apparent from the context, in this Code:
(1) "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property;
(2) A "protective proceeding" is a proceeding under the provisions of Section 62-5-401 to determine if a person is an incapacitated person, or to secure the administration of the estates of incapacitated persons or minors;
(3) A "protected person" is a minor or incapacitated person for whom a conservator has been appointed or other protective order has been made;
(4) A "ward" is a person for whom a guardian has been appointed;
(5) A "guardianship proceeding" is a proceeding under the provisions of Part 3 of Article 5 (Section 62-5-301, et seq.) to determine if a person is an incapacitated person, or to appoint a guardian for an incapacitated person.
SECTION 62-5-102. Jurisdiction of subject matter; consolidation of proceedings.
(a) The probate court has jurisdiction over protective proceedings and guardianship proceedings.
(b) When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.
SECTION 62-5-103. Facility of payment or delivery.
A person under a duty to pay or deliver money or personal property to a minor or incapacitated person may perform this duty in amounts not exceeding ten thousand dollars each year, by paying or delivering the money or property to:
(1) a person having the care and custody of the minor or incapacitated person with whom the minor or incapacitated person resides;
(2) a guardian of the minor or incapacitated person; or
(3) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor or for the minor under the Uniform Gifts to Minors Act and giving notice of the deposit to the minor.
This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor or incapacitated person are pending. The persons, other than the minor or incapacitated person or a financial institution under (3) above, receiving money or property for a minor or incapacitated person, are obligated to apply the money for the benefit of the minor or incapacitated person with due regard to (i) the size of the estate, the probable duration of the minority or incapacity, and the likelihood that the minor or incapacitated person, at some future time, may be able fully to manage his affairs and his estate; (ii) the accustomed standard of living of the minor or incapacitated person and members of his household; and (iii) other funds or sources used for the support of the minor or incapacitated person, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated person's support. Money or other property received on behalf of a minor or incapacitated person may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated person. Excess sums must be preserved for future benefit of the minor or incapacitated person, and a balance not used and property received for the minor or incapacitated person must be turned over to the minor when he attains majority or to the incapacitated person when he is no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application of it.
SECTION 62-5-104. Delegation of guardian's powers.
A guardian of an incapacitated person, by a properly executed power of attorney, may delegate to another person, for not more than thirty days, any of his powers regarding care and custody of the incapacitated person.
SECTION 62-5-105. Director of Department of Mental Health or his designee may act as conservator.
If a patient of a state mental health facility has no legally appointed conservator, the Director of the Department of Mental Health or his designee may receive and accept for the use and benefit of that patient a sum of money, not in excess of the sum of ten thousand dollars in one calendar year, which may be due the patient or trainee by inheritance, gift, pension, or otherwise. The director or his designee may act as conservator for the patient and his endorsement or receipt discharges the obligor for the sum received. Upon receipt of these funds the director or his designee shall use it for the proper maintenance, use, and benefit of the patient or as much of the fund as may be necessary for these purposes. In the event the patient dies leaving an unexpended balance of these funds in the hands of the director or his designee, he shall apply the balance first to the funeral expenses of the patient or trainee, and any balance remaining must be held by the director or his designee for a period of six months, and if he is not within this period, contacted by the personal representative of the deceased patient, the balance in the personal fund account must be applied to the maintenance and medical care account of the deceased patient.
SECTION 62-5-106. Termination of conservatorship.
(A) For purposes of this section, " incapacitated person" has the meaning set forth in Sections 62-5-101(1) and 62-5-401(2) and does not include a person protected only by reason of his minority.
(B) Notwithstanding another provision of law, neither a guardianship of an incapacitated person established pursuant to Part 3 of this article or a conservatorship or other protective order for an incapacitated person established pursuant to Part 4 of this article terminates only because the ward or protected person attains the age of majority or other benchmark age.
PART 2.
JURISDICTION
SECTION 62-5-201. Jurisdiction of family courts as to minors.
The family courts of this State have jurisdiction over the care, custody, and control of the persons of minors.
PART 3.
GUARDIANS OF INCAPACITATED PERSONS
SECTION 62-5-301. Testamentary appointment of guardian for incapacitated person.
(a) The parent of an incapacitated person may by will appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given twenty days prior written notice of intention to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.
(b) The spouse of a married incapacitated person may by will appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given twenty days prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.
(c) This State shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.
(d) On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding section of this Part.
SECTION 62-5-302. Venue.
The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.
SECTION 62-5-303. Procedure for court appointment of a guardian of an incapacitated person.
(a) The incapacitated person or any person interested in his welfare may petition for a finding of incapacity and appointment of a guardian.
(b) Upon the filing of a petition, the court shall send a visitor to the place where the allegedly incapacitated person resides to observe conditions and report in writing to the court. The court shall set a date for hearing on the issues of incapacity and unless the allegedly incapacitated person has counsel of his own choice, it shall appoint an attorney to represent him in the proceedings and that attorney shall have the powers and duties of a guardian ad litem. The person alleged to be incapacitated shall be examined by two examiners, one of whom shall be a physician appointed by the court who shall submit their reports in writing to the court. The person alleged to be incapacitated is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon his condition. He is entitled to be represented by counsel, to present evidence including testimony by a physician of his own choosing, to cross-examine witnesses, including the court-appointed examiners. The issue may be determined at a closed hearing if the person alleged to be incapacitated or his counsel so requests.
SECTION 62-5-304. Order of appointment; alternatives; limitations on guardian's powers.
(A) The court shall exercise the authority conferred in this part so as to encourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's mental and adaptive limitations or other conditions warranting the procedure.
(B) The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person. The court, on appropriate findings, may:
(1) treat the petition as one for a protective order under Section 62-5-401 and proceed accordingly;
(2) enter another appropriate order; or
(3) dismiss the proceeding.
(C) The court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, may limit the powers of a guardian otherwise conferred by this article and create a limited guardianship. A limitation on the statutory power of a guardian of an incapacitated person must be endorsed on the guardian's letters or, in the case of a guardian by parental or spousal appointment, must be reflected in letters issued at the time a limitation is imposed. Following the same procedure, a limitation may be removed or modified and appropriate letters issued.
SECTION 62-5-305. Acceptance of appointment; consent to jurisdiction.
By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.
SECTION 62-5-306. Termination of guardianship for incapacitated person.
The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in Section 62-5-307. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.
SECTION 62-5-307. Removal or resignation of guardian; termination of incapacity.
(a) On petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept his resignation and make any other order which may be appropriate.
(b) An order adjudicating or readjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in his welfare may petition for an order that he is no longer incapacitated, and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.
(c) Before acting upon any such petition, the court shall send a visitor to the residence of the present guardian and to the place where the ward resides or is detained to observe conditions and report in writing to the court. After reviewing the report of the visitor, the court may order termination of the ward's incapacity or a hearing following the procedures set forth in Section 62-5-303.
SECTION 62-5-308. Visitor in guardianship proceeding.
A visitor is, with respect to guardianship proceedings, a person who is trained in law, nursing, or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings.
SECTION 62-5-309. Notices in guardianship proceedings.
(A) In a proceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing must be given to each of the following:
(1) the ward or the person alleged to be incapacitated and his spouse, parents, and adult children;
(2) a person who is serving as his guardian, conservator, or attorney in fact under a durable power of attorney pursuant to Section 62-5-501 or who has his care and custody;
(3) if no other person is notified under item (1), at least one of his closest adult relatives, if one can be found.
(B) Notice must be served personally on the alleged incapacitated person and his spouse and parents if they are found within the State. Notice to the spouse and parents, if they cannot be found within the State, and to all other persons except the alleged incapacitated person, must be given as provided in Section 62-1-401. Waiver of notice by the person alleged to be incapacitated is not effective unless he attends the hearing or his waiver of notice is given by his attorneys or, in proceedings for removal, confirmed in an interview with the visitor, which may be done at any time. Representation of the alleged incapacitated person by a guardian ad litem is not necessary.
SECTION 62-5-310. Temporary guardians.
(A) If the court makes emergency preliminary findings that:
(1) a physician has certified to the court, orally or in writing, that the person is incapacitated;
(2) no guardian has been appointed previously; and
(3) the welfare of the incapacitated person requires immediate action; then the court, with or without notice, may appoint a temporary guardian for a specified period not to exceed six months in accordance with the priorities set out in Section 62-5-311.
(B) If the court makes emergency preliminary findings that:
(1) the appointed guardian or temporary guardian is not effectively performing his duties; and
(2) the welfare of the allegedly incapacitated person requires immediate action, then the court may appoint, with or without notice, a temporary guardian for a specified period not to exceed six months in accordance with the priorities set out in Section 62-5-311.
(C) If the court makes emergency preliminary findings that:
(1) no person appears to have authority to act on behalf of the incapacitated person; or
(2) more than one person is authorized to make health care decisions for the incapacitated person, and these authorized persons disagree on whether certain care must be provided;
(3) the person has been adjudicated as being incapacitated, or a physician has certified to the court, orally or in writing, that the person is incapacitated; and
(4) an emergency exists;
then the court may itself exercise the power of a temporary guardian, with or without notice.
For health care purposes, "emergency" means that a delay caused by (1) further attempts to locate a person authorized to make health care decisions or (2) proceedings for appointment of a guardian would present a serious threat to the life, health, or bodily integrity of the incapacitated person.
(D) If a temporary guardian is appointed without notice under this section, a hearing to review the appointment must be held after notice and within thirty days after the appointment of the temporary guardian.
(E) A temporary guardian is entitled to the care and custody of the ward and the authority of a permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make reports the court requires. In other respects the provisions of law concerning guardians apply to temporary guardians.
(F) A hearing concerning the need for appointment of a permanent guardian must be a hearing de novo as to all issues before the court.
SECTION 62-5-311. Who may be guardian; priorities.
(A) Any competent person or a suitable institution may be appointed guardian of an incapacitated person.
(B) Subject to a finding of good cause by the court, persons who are not disqualified have priority for appointment as guardian in the following order:
(1) a person nominated to serve as guardian by the incapacitated person;
(2) an attorney in fact appointed by the incapacitated person pursuant to Section 62-5-501, whose authority includes powers relating to the person of the incapacitated person;
(3) the spouse of the incapacitated person. A person who claims to be a common law spouse of the incapacitated person has the burden of proving that status in order to qualify for appointment as a guardian under this provision. A decision by the probate court regarding the status of a common law spouse is for the purpose of guardianship appointment proceedings only and is not binding in any other court of law or in any administrative proceeding;
(4) an adult child of the incapacitated person;
(5) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
(6) another relative of the incapacitated person;
(7) a person nominated by the person who is caring for him or paying benefits to him.
SECTION 62-5-312. General powers and duties of guardian.
(a) A guardian of an incapacitated person has the same powers, rights, and duties respecting his ward that a parent has respecting his unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court:
(1) to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, he is entitled to custody of the person of his ward and may establish the ward's place of abode within or without this State.
(2) If entitled to custody of his ward he shall make provision for the care, comfort, and maintenance of his ward and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
(3) A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service.
(4) If no conservator for the estate of the ward has been appointed or if the guardian is also conservator, he may:
(i) institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;
(ii) receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but, he may not use funds from his ward's estate for room and board or services which he, his spouse, parent, or child have furnished the ward unless a charge for the services and/or room and board is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.
(5) A guardian is required to report the condition of his ward and of the estate which has been subject to his possession or control, as required by the court or court rule, but at least on an annual basis.
(6) If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this Code, and the guardian must account to the conservator for funds expended.
(b) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.
SECTION 62-5-313. Proceedings subsequent to appointment; venue.
(a) The court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, has jurisdiction over resignation, removal, accounting, and other proceedings relating to the guardianship.
(b) If the court which appointed the guardian, or in which acceptance of appointment is filed, being the court in which proceedings subsequent to appointment are commenced, determines that the proceedings more appropriately belong in the court located where the ward resides, the first court shall notify the other court, in this or another state, and after consultation with the other court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.
PART 4.
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
SECTION 62-5-401. Protective proceedings.
Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:
(1) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by his minority, or that funds are needed for his support and education and that protection is necessary or desirable to obtain or provide funds.
(2) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that (i) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and (ii) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds.
SECTION 62-5-402. Protective proceedings; jurisdiction of affairs of protected persons.
After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the probate court in which the petition is filed has:
(1) exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;
(2) exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this State must be managed, expended, or distributed to or for the use of the protected person or any of his dependents; and
(3) concurrent jurisdiction to determine the validity of claims for or against the person or estate of the protected person except as limited by Section 62-5-433.
SECTION 62-5-403. Venue.
Venue for proceedings under this part is:
(1) In the place in this State where the person to be protected resides whether or not a guardian has been appointed in another place; or
(2) If the person to be protected does not reside in this State, in any place where he has property.
SECTION 62-5-404. Original petition for appointment or protective order.
(a) The person to be protected, any person who is interested in his estate, affairs, or welfare, including his parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order.
(b) The petition shall set forth to the extent known, the interest of the petitioner; the name, age, residence, and address of the person to be protected; the name and address of his guardian, if any; the name and address of his nearest relative known to the petitioner; a general statement of his property with an estimate of the value thereof, including any compensation, insurance, pension, or allowance to which he is entitled; and the reason why appointment of a conservator or other protective order is necessary. If the appointment of a conservator is requested, the petition also shall set forth the name and address of the person whose appointment is sought and the basis of his priority for appointment.
SECTION 62-5-405. Notice.
(a) On a petition for appointment of a conservator or other protective order, the person to be protected must be served personally with notice of the proceeding at least twenty days before the date of hearing. The spouse and the adult children of the person to be protected, or if none, his parents or nearest adult relatives if there are no parents, must be given notice of the proceeding at least twenty days before the hearing if they can be found within the State, or, if they cannot be found within the State, they must be given notice in accordance with Section 62-1-401. Waiver by the person to be protected is not effective unless he attends the hearing or waiver of notice is given by his attorney.
(b) Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under Section 62-5-406 and to interested persons and other persons as the court may direct. Except as otherwise provided in (a), notice shall be given in accordance with Section 62-1-401.
SECTION 62-5-406. Protective proceedings; request for notice; interested person.
Any interested person who desires to be notified before any order is made in a protective proceeding may file with the court a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the request to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and his address, or that of his attorney, and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings.
SECTION 62-5-407. Procedure concerning hearing and order on original petition.
(a) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if fourteen years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem. If the minor already has an attorney, that attorney shall act as his guardian ad litem.
(b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has counsel of his own choice, the court must appoint a lawyer to represent him who then has the powers and duties of a guardian ad litem. If the protected person already has representation by an attorney that attorney shall act as his guardian ad litem. If the alleged disability is mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, or chronic intoxication, the court shall direct that the person to be protected be examined by one or more physicians designated by the court, preferably physicians who are not connected with any institution in which the person is a patient or is detained.
(c) After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order.
SECTION 62-5-408. Permissible court orders.
The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:
(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing upon such notice by the court as is reasonable under the circumstances, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the person to be protected as may be required for his benefit or the benefit of his dependents; however, notice of such actions of the court shall be given to interested parties as soon thereafter as practicable.
(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family, and members of his household.
(3)(a) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and of his estate and fulfillment of his legal obligations of support of dependents, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to:
(i) make gifts as the court, in its discretion, believes would be made by the person if he were competent;
(ii) convey or release the person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;
(iii) exercise or release the person's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;
(iv) enter into contracts;
(v) create or amend revocable trusts or create irrevocable trusts of property of the estate which may extend beyond the person's disability or life;
(vi) fund trusts;
(vii) exercise options of the disabled person to purchase securities or other property;
(viii) exercise the person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;
(ix) exercise the person's right to an elective share in the estate of the person's deceased spouse;
(x) renounce any interest by testate or intestate succession or by inter vivos transfer; and
(xi) ratify any such actions taken on the person's behalf.
(b) In order to exercise, or direct the exercise of the court's authority in any powers set forth in item (a), the court must entertain a petition in which the specific relief sought is set forth, the incapacitated person, his known heirs, devisees, donees, and beneficiaries are made parties to the action, and which contains a statement that the person either is incapable of consenting or has consented to the proposed exercise of power.
(c) In exercising the powers set forth in item (b), the court also must inquire into and consider any known lifetime gifts or the estate plan of the person, the terms of any revocable trust of which he is grantor, and any contract, transfer, or joint ownership arrangements with provisions for payment or transfer of benefits or interests at his death to another which he may have originated. In exercising the court's authority set forth in item (b), the court must set forth in the record specific findings upon which it has based its ruling.
(4) An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person, except to the extent the order affects his estate or affairs.
SECTION 62-5-409. Protective arrangements and single transactions authorized.
(a) If it is established in a proper proceeding that a basis exists as described in Section 62-5-401 for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct, or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.
(b) When it has been established in a proper proceeding that a basis exists as described in Section 62-5-401 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct, or ratify any contract, trust, or other transaction relating to the protected person's financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.
(c) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.
SECTION 62-5-410. Who may be appointed conservator; priorities.
(a) The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:
(1) a conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
(2) an individual or corporation nominated by the protected person if he is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(3) an attorney in fact appointed by such protected person pursuant to Section 62-5-501;
(4) the spouse of the protected person;
(5) an adult child of the protected person;
(6) a parent of the protected person, or a person nominated by the will of a deceased parent;
(7) any other relative of the protected person;
(8) a person nominated by the person who is caring for him or paying benefits to him.
(b) A person in priorities (1), (4), (5), (6), or (7) may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority.
(c) A probate judge or an employee of the probate court shall not serve as a conservator of an estate of a protected person; however, a probate judge or an employee of the probate court may serve as a conservator of the estate of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.
SECTION 62-5-411. Bond.
The court shall, unless for good cause stated, require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law and will approve all sureties. If bond is required, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the protected person and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in Section 62-6-101, in a manner that prevents their unauthorized disposition. On petition of the conservator or another interested person, the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, or permit the substitution of another bond with the same or different sureties.
SECTION 62-5-412. Terms and requirements of bonds.
(a) The following requirements and provisions apply to any bond required under Section 62-5-411:
(1) Sureties shall be jointly and severally liable with the conservator and with each other;
(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;
(3) On petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;
(4) Subject to applicable statutes of limitation, the bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
SECTION 62-5-413. Acceptance of appointment; consent to jurisdiction.
By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
SECTION 62-5-414. Compensation and expenses.
If not otherwise compensated for services rendered, any visitor, lawyer, physician, conservator, or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate, as determined by the court.
SECTION 62-5-415. Death, resignation, or removal of conservator.
The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of his predecessor.
SECTION 62-5-416. Petitions for orders subsequent to appointment.
(a) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order (1) requiring bond or security or additional bond or security, or reducing bond, (2) requiring an accounting for the administration of the trust, (3) directing distribution, (4) removing the conservator and appointing a temporary or successor conservator, or (5) granting other appropriate relief.
(b) A conservator may petition the appointing court for instructions concerning his fiduciary responsibility.
(c) Upon notice and hearing, the court may give appropriate instructions or make any appropriate order.
SECTION 62-5-417. General duty of conservator.
In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees as described by Section 62-7-933.
SECTION 62-5-418. Inventory and records.
Within thirty days after his appointment, every conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with his oath or affirmation that it is complete and accurate so far as he is informed. The court may, for good cause shown, increase the allotted time. The conservator shall provide a copy thereof to the protected person if he can be located, has attained the age of fourteen years, and has sufficient mental capacity to understand these matters, and to any parent or guardian with whom the protected person resides. The conservator shall keep suitable records of his administration and exhibit the same on request of any interested person.
SECTION 62-5-419. Accounts.
Every conservator must account to the court for his administration of the trust annually and upon his resignation or removal, and at other times as the court may direct. On termination of the protected person's minority or disability a conservator shall account to the court. Subject to appeal within the same time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to his liabilities concerning the matters shown in connection therewith and an order, made upon notice and hearing, allowing a final account adjudicates as to all unsettled liabilities of the conservator to the protected person or his successors relating to the conservatorship concerning the matters shown. In connection with any account, the court may require a conservator to submit to a physical check of the estate in his control, to be made in any manner the court may specify.
SECTION 62-5-420. Conservators; title by appointment.
The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact. Neither the appointment of a conservator nor the establishment of a trust in accordance with Title 44, Chapter 6, Article 6, is a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provision by contract or dispositive instrument relating to a conservator.
SECTION 62-5-421. Recording of conservator's letters.
Letters of conservatorship transfer all assets of a protected person to the conservator. An order terminating a conservatorship transfers all assets of the estate from the conservator to the protected person or his successors. Letters of conservatorship, and orders terminating conservatorships, shall be filed and recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the other counties where the protected person owns real estate.
SECTION 62-5-422. Sale, encumbrance, or transaction involving conflict of interest; voidable; exceptions.
Any sale or encumbrance to a conservator, his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is void unless the transaction is approved by the court after notice to interested persons and others as directed by the court.
SECTION 62-5-423. Persons dealing with conservators; protection.
A person who in good faith either assists a conservator or deals with him for value in any transaction other than those requiring a court order as provided in Sections 62-5-408 and 62-5-422, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 62-5-426 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
SECTION 62-5-424. Powers of conservator in administration.
(A) A conservator has power without court authorization or confirmation to invest and reinvest funds of the estate as would a trustee.
(B) A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation, to:
(1) collect, hold, and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he personally is interested;
(2) receive additions to the estate;
(3) invest and reinvest estate assets in accordance with subsection (A);
(4) deposit estate funds in a bank including a bank operated by the conservator;
(5) make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish improvement, to raze existing or erect new party-walls or buildings;
(6) vote a security, in person or by general or limited proxy;
(7) pay calls, assessments, and other sums chargeable or accruing against or on account of securities;
(8) sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise whose stock or shares are publicly held;
(9) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for an act of the nominee in connection with the stock so held;
(10) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;
(11) borrow money to be repaid from estate assets or otherwise; advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of estate assets and the conservator has a lien on the estate as against the protected person for advances so made;
(12) pay or contest a claim except as limited by Section 62-5-433; settle a claim by or against the estate of the protected person by compromise, arbitration, or otherwise except as limited by Section 62-5-433; and release, in whole or in part, a claim belonging to the estate to the extent that the claim is uncollectible;
(13) pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate;
(14) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;
(15) pay a sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or if none, to a relative or other person with custody of his person;
(16) employ persons, including attorneys, auditors, investment advisors, or agents even though they are associated with the conservator to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform an act of administration, whether or not discretionary;
(17) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties; and
(18) execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.
(C) A conservator acting reasonably in efforts to accomplish the purpose for which he was appointed may act with court approval to:
(1) continue or participate in the operation of any unincorporated business or other enterprise;
(2) acquire an undivided interest in an estate asset in which the conservator, in a fiduciary capacity, holds an undivided interest;
(3) acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(4) subdivide, develop, or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;
(5) enter into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;
(6) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(7) grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset;
(8) undertake another act considered necessary or reasonable by the conservator and the court for the preservation and management of the estate;
(9) make gifts to charitable organizations and for other religious, charitable, eleemosynary, or educational purposes which are tax deductible as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent of the income from the estate, if and only if the estate is ample to provide for the purposes implicit in the distributions authorized by Section 62-5-425;
(10) encumber, mortgage, or pledge an asset for a term extending within or beyond the term of the conservatorship.
SECTION 62-5-425. Distributive duties and powers of conservator.
(a) A conservator may expend or distribute sums from the principal of the estate without court authorization or confirmation for the support, education, care, or benefit of the protected person and his dependents in accordance with the following principles:
(1) The conservator is to consider recommendations relating to the appropriate standard of support, education, and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education, or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.
(2) The conservator is to expend or distribute sums reasonably necessary for the support, education, care, or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person.
(3) The conservator may expend funds of the estate for the support of persons legally dependent on the protected person.
(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person, to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.
(b) When a minor who has not been adjudged disabled under Section 62-5-401(2) attains his majority or is emancipated, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible. An individual under the age of eighteen who is also married shall remain a minor for purposes of this subsection until attaining majority or emancipation.
(c)(1) When the conservator is satisfied that a protected person's disability (other than minority) has ceased, then he shall petition the court, and after determination by the court that the disability has ceased in accordance with Section 62-5-430, the conservator, after meeting all prior claims and expenses of administration shall pay over and distribute all funds and properties to the former protected person as soon as possible.
(2) When the conservator is satisfied that a protected person's estate has a value of less than five thousand dollars, then he may petition the court, and after determination by the court that the protected person's estate has a value of less than five thousand dollars, the court in its discretion may terminate the conservatorship and order the conservator, after meeting all prior claims and expenses of administration, to pay over and distribute all funds and properties to or for the protected person as soon as possible and in accordance with Section 62-5-103.
(d) 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 his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after thirty days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under Section 62-3-204 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in Section 62-3-308 and Parts 6 through 10 of Article 3 [Sections 62-3-601 et seq. through Sections 62-3-1001 et seq.] except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
(e) A person shall not be disqualified as an executor of a deceased protected person solely by reason of his having been appointed and acting conservator of that protected person.
SECTION 62-5-426. Enlargement or limitation of powers of conservator.
The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by Sections 62-5-424 and 62-5-425, or previously conferred by the court, and may at any time relieve him of any limitation. If the court limits any power conferred on the conservator by Section 62-5-424 or Section 62-5-425, the limitation shall be endorsed upon his letters of appointment and upon any certificate evidencing his appointment.
SECTION 62-5-427. Preservation of estate plan.
In investing the estate, and in selecting assets of the estate for distribution under subsections (a) and (b) of Section 62-5-425, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, any revocable trust of which he is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated.
SECTION 62-5-428. Claims against protected person; enforcement.
(a) A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods:
(1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed;
(2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of court and deliver or mail a copy of the statement to the conservator.
A claim is considered presented on the first to occur of receipt of the written statement of claim by the conservator or the filing of the claim with the court. Every claim which is disallowed in whole or part by the conservator is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the conservator not later than thirty days after the mailing of the notice of disallowance or partial disallowance if the notice warns the claimant of the impending bar. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance.
(b) A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is initiated against a protected person, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.
(c) If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration.
SECTION 62-5-429. Individual liability of conservator.
(a) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the court of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.
(b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(c) Claims based on contracts entered into by a conser