Guardianship In South Carolina When A Loved One Has Dementia But No Power Of Attorney In Place

When a loved one is diagnosed with dementia, making decisions about their care and managing their affairs can become increasingly difficult. If no power of attorney (POA) is in place, it can lead to complex legal situations, especially when it comes to dementia guardianship in South Carolina. In this article, we’ll discuss…

• What to do if a loved one with dementia has no power of attorney.
• What options are available for guardianship in South Carolina.
• How to legally prove that your loved one requires guardianship, and how an attorney can help.

What Happens When Someone Loses Capacity Without A POA In South Carolina?

When someone loses the capacity to manage their own affairs but has not executed a POA, a relative or other interested party must take action to secure legal control over their care. In South Carolina, this typically means filing a petition in probate court to have the person declared a protected person. This designation means the individual is unable to manage their own affairs and will require assistance with financial, health, and other important decisions.

Who Can File For Guardianship Or Conservatorship In This Case?

In cases where a loved one has dementia and lacks a power of attorney, several individuals can file for guardianship or conservatorship. These individuals often include:

• A spouse
• A child or other family members
• Any interested person, such as a neighbor or friend, if no family member is available to file

Ultimately, the court will determine who is most appropriate to take on this responsibility.

What Is The Difference Between Guardianship And Conservatorship In South Carolina?

In South Carolina, there is a distinction between guardianship and conservatorship. Both roles are important when managing the care and affairs of someone with dementia, but they address different aspects of the individual’s life.

Guardianship

A guardian is appointed to manage the personal needs and care of the protected person. This includes ensuring they live in suitable conditions, receive proper medical care, and have adequate nutrition. Essentially, a guardian is responsible for the physical and emotional well-being of the person they are appointed to care for.

Conservatorship

A conservator is tasked with managing the protected person’s financial affairs, including handling their assets, paying bills, and making financial decisions on their behalf.

What Evidence Do I Need To Support A Guardianship Petition?

To file for guardianship in South Carolina, you must provide evidence demonstrating the person’s inability to make decisions for themselves due to dementia. The most compelling evidence includes statements from doctors who can testify that the person is not competent to handle their own affairs, as well as affidavits from family members or other concerned individuals who are familiar with the person’s actions and condition. These statements can significantly strengthen the petition.

What If Family Members Disagree On Who Should Be The Guardian?

Disagreements among family members regarding who should be appointed as the guardian can complicate the process. In such cases, the matter will be taken to probate court, where the judge will make a final decision based on the best interests of the protected person. The court will consider various factors, including the relationships between the family members, the person’s needs, and the proposed guardian’s ability to fulfill the role.

How Can Crises Like These Be Avoided With Proper Planning?

While guardianship is an option when someone with dementia has not made prior arrangements, this sort of crisis can often be avoided with proactive planning. Two key steps that should be taken include:

Creating A Trust

A trust can be established to manage the person’s affairs if they become unable to do so themselves. This ensures that their financial and personal needs are handled by a trusted individual or institution, even without a POA in place.

Executing A Durable Power Of Attorney

A valid, durable power of attorney is one of the most effective ways to avoid the need for guardianship or conservatorship. The agent named in the POA has the legal authority to manage the individual’s personal, financial, and health-related matters. This can save considerable time and money, especially by avoiding costly court proceedings.

Having these documents in place means you can ensure that your wishes are carried out and that your loved ones are not burdened with the complex process of guardianship.

Still Have Questions? Ready To Get Started?

For more information on dementia guardianship in South Carolina, an initial consultation is your next best step.

Get the information and legal answers you are seeking by calling (864) 271-7940 today.