APPENDIX

1.	RELEVANT STATUTES

SECTION 62‑5‑101. Definitions and use of terms.

Unless otherwise apparent from the context, in this article:

(1) “Adult” means an individual who has attained the age of eighteen or who, if under eighteen, is married or has been emancipated by a court of competent jurisdiction.

(2) “Alleged incapacitated individual” means:

(a) an adult for whom a protective order is sought;

(b) an adult for whom the appointment of a guardian is sought; or

(c) an adult for whom a determination of incapacity is sought.

(3) “Conservator” means a person appointed by the court to manage the estate of a protected person.

(4) “Counsel for alleged incapacitated individual” means a person authorized to practice law in the State of South Carolina who represents the alleged incapacitated individual in a guardianship proceeding or a protective proceeding. Counsel shall represent the expressed wishes of the alleged incapacitated individual to the extent consistent with the rules regulating the practice of law in the State of South Carolina.

(5) “Court” means the probate court.

(6) “Disabled” means the medically determinable physical or mental impairment of a minor or an adult as defined by 42 U.S.C. Section 1382c, as amended.

(7) “Emergency” means circumstances that are likely to result in substantial harm to the alleged incapacitated individual’s health, safety, or welfare or in substantial economic loss to the alleged incapacitated individual.

(8) “Foreign conservator” means a conservator or a person with the powers of a conservator of another jurisdiction.

(9) “Guardian” means a person appointed by the court as guardian, but excludes one who is a guardian ad litem. A guardian shall make decisions regarding the ward’s health, education, maintenance, and support.

(10) “Guardian ad litem” means a person licensed in the State of South Carolina in law, social work, nursing, medicine, or psychology, or who has completed training to the satisfaction of the court, and who has been appointed by the court to advocate for the best interests of the alleged incapacitated individual.

(11) “Guardianship proceeding” means a formal proceeding to determine if an adult is an incapacitated individual or in which an order for the appointment of a guardian for an adult is sought or has been issued.

(12) “Incapacitated individual” means an individual who, for reasons other than minority, has been adjudicated as incapacitated.

(13) “Incapacity” means the inability to effectively receive, evaluate, and respond to information or make or communicate decisions such that a person, even with appropriate, reasonably available support and assistance cannot:

(a) meet the essential requirements for his physical health, safety, or self‑care, necessitating the need for a guardian; or

(b) manage his property or financial affairs or provide for his support or for the support of his legal dependents, necessitating the need for a protective order.

(14) “Less restrictive alternative” means the provision of support and assistance as defined in this section which maximizes the alleged incapacitated individual’s capacity for self‑determination and autonomy in lieu of a guardianship or conservatorship.

(15) “Net aggregate amount” means the total sum of payments due to a minor or incapacitated individual after subtracting all outstanding reimbursements and relevant deductions.

(16) “Party” means the alleged incapacitated individual, ward, protected person, petitioner, guardian, conservator, or any other person allowed by the court to be a party in a guardianship proceeding or protective proceeding, including those listed in Section 62‑5‑303, Section 62‑5‑402, and Section 62‑5‑403.

(17) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

(18) “Protected person” means an individual for whom a conservator has been appointed or other protective order has been issued.

(19) “Protective order” means an order appointing a conservator or relating to the management of the property of:

(a) an incapacitated individual;

(b) a minor;

(c) a person who is confined, detained by a foreign power, or who has disappeared; or

(d) a person who is disabled and in need of a court order to create and establish a special needs trust for such person’s benefit.

(20) “Protective proceeding” means a judicial proceeding in which a protective order is sought or has been issued.

(21) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(22) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(23) “Supports and assistance” includes:

(a) systems in place for the alleged incapacitated individual to make decisions in advance or to have another person to act on his behalf, including, but not limited to, having an agent under a durable power of attorney, a health care power of attorney, a trustee under a trust, a representative payee to manage social security funds, a Declaration of Desire for Natural Death (living will), a designated health care decision maker under Section 44‑66‑30, or an educational representative designated under Section 59‑33‑310 to Section 59‑33‑370; and

(b) reasonable accommodations that enable the alleged incapacitated individual to act as the principal decision‑maker, including, but not limited to, using technology and devices; receiving assistance with communication; having additional time and focused discussion to process information; providing tailored information oriented to the comprehension level of the alleged incapacitated individual; and accessing services from community organizations and governmental agencies.

(24) “Ward” means an adult for whom a guardian has been appointed.

Additional Definitions

Best interests means the optimal health, safety, and personal and economic well-being of an alleged incapacitated individual, ward, or protected person. A guardian ad litem advocates for actions that will promote the best interests of an alleged incapacitated individual. Note that an alleged incapacitated individual may express wishes contrary to his or her own best interests. If an individual is found to be incapacitated, the probate court determines which actions should be taken to promote the best interests of the ward or protected person. A guardian must act to promote the best interests of a ward. A conservator must act to promote the best interests of a protected person.

Confidentiality means keeping privileged or sensitive information secret. There are certain classes of communications, passing between persons who stand in a confidential or fiduciary relation to each other, which are intended to be held in confidence or kept secret. Confidential communications include those between client and attorney.

Conflict of interest means a situation in which one person has two or more incompatible responsibilities. A conflict of interest exists when a person determines that external interests, including their own interests or the interests of third persons, are likely to impact their responsibility to another.

Ex parte means on or from one party only, usually without notice to or argument from the opposing party(ies). For example, an ex parte order is one issued without notice to the adverse party.

Hearing means a formal meeting of parties before a probate court judge concerning a guardianship proceeding or a protective proceeding.

Mediation means a meeting of the parties with an independent person (the mediator) who actively works with all of them to try to resolve their dispute by finding points of agreement that help them achieve what they feel is a fair result.

Notice means a legal notification that is delivered in a written format. Certain persons must receive notice when a guardianship proceeding or a protective proceeding is initiated and when a hearing is scheduled. Note that the petitioner is responsible for delivering the summons and petition and any notice of hearing to the guardian ad litem as well as the respondent(s).

Petitioner means a person who files a Summons and Petition in the probate court to initiate a guardianship proceeding or a protective proceeding.

Probate Court means the court with jurisdiction over adult guardianship proceedings and protective proceedings in the State of South Carolina.

Respondent means a person who is entitled to receive notice in a guardianship proceeding or a protective proceeding, including an alleged incapacitated individual, and any other person(s) (sometimes referred to as co-respondents) interested in the welfare of the alleged incapacitated individual and named in the summons and petition filed in the probate court. Any respondent may respond to the petition by filing an answer.

SECTION 62-5-106. Responsibilities and duties of guardian ad litem; reports.

(A) Once a guardian ad litem is appointed by the court, pursuant to Section 62-5-303B or Section 62-5-403B, the responsibilities and duties of the guardian ad litem include, but are not limited to:

(1) acting in the best interest of the alleged incapacitated individual;

(2) conducting an independent investigation to determine relevant facts and filing a written report with recommendations at least forty-eight hours prior to the hearing, unless excused or required earlier by the court. The investigation must include items listed in subitems (a) through (i) and also may include items listed in subitems (j) through (m), as appropriate or as ordered by the court:

(a) obtaining and reviewing relevant documents;

(b) meeting with the alleged incapacitated individual, at least once within thirty days following appointment, or within such time as the court may direct;

(c) investigating the residence or proposed residence of the alleged incapacitated individual;

(d) interviewing all parties;

(e) discerning the wishes of the alleged incapacitated individual;

(f) identifying less restrictive alternatives to guardianship and conservatorship;

(g) reviewing a criminal background check on the proposed guardian or conservator;

(h) reviewing a credit report on the proposed conservator;

interviewing the person whose appointment is sought to ascertain the:

(i) proposed fiduciary's knowledge of the fiduciary's duties, requirements, and limitations; and

(ii) steps the proposed fiduciary intends to take or has taken to identify and meet the needs of the alleged incapacitated individual;

(j) consulting with persons who have a significant interest in the welfare of the alleged incapacitated individual or knowledge relevant to the case;

(k) contacting the Department of Social Services to investigate any action concerning the alleged incapacitated individual or the proposed fiduciary;

(l) determining the financial capabilities and integrity of the proposed conservator including, but not limited to:

(i) previous experience in managing assets similar to the type and value of the alleged incapacitated individual's assets;

(ii) plans to manage the alleged incapacitated individual's assets; and

(iii) whether the proposed conservator has previously borrowed funds or received financial assistance or benefits from the alleged incapacitated individual;

(m) interviewing any persons known to the guardian ad litem having knowledge of the alleged incapacitated individual's financial circumstances or the integrity and financial capabilities of the conservator, or both, and reviewing pertinent documents;

(3) advocating for the best interests of the alleged incapacitated individual by making specific recommendations regarding resources as may be appropriate and available to benefit the alleged incapacitated individual, the appropriateness of the appointment of a guardian or conservator, and any limitations to be imposed;

(4) avoiding conflicts of interest, impropriety, or self-dealing. A guardian ad litem shall not accept or maintain appointment if the performance of his duties may be materially limited by responsibilities to another person or by his own interests;

(5) participating in all court proceedings including discovery unless all parties waive the requirement to appear or the court otherwise excuses participation;

(6) filing with the court and delivering to each party a copy of the guardian ad litem's report; and

(7) moving for any necessary temporary relief to protect the alleged incapacitated individual from abuse, neglect, abandonment, or exploitation, or to address other emergency needs of the alleged incapacitated individual.

(B) Notes of a guardian ad litem are discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

(C) The report of the guardian ad litem shall include all relevant information obtained in his investigation. The report shall contain facts including:

(1) the date and place of the meeting with the alleged incapacitated individual;

(2) a description of the alleged incapacitated individual;

(3) known medical diagnoses of the alleged incapacitated individual including the nature, cause, and degree of the incapacity and the basis for the findings;

(4) description of the condition of the alleged incapacitated individual's current place of residence including address and factors affecting safety;

(5) identification of persons with significant interest in the welfare of the alleged incapacitated individual;

(6) any prior action by the Department of Social Services or law enforcement concerning the alleged incapacitated individual or the proposed fiduciary of which the guardian ad litem is aware;

(7) a statement as to any prior relationship between the guardian ad litem and the petitioner, alleged incapacitated individual, or other party to the action;

(8) a description of the current care and treatment needs of the alleged incapacitated individual; and

(9) any other information relevant to the matter.

(D) The report shall contain recommendations including:

(1) whether a guardian or conservator is needed;

(2) the propriety and suitability of the proposed fiduciary after consideration of his geographic location, his familial or other relationship, his ability to carry out the duties of the proposed fiduciary, his commitment to promoting the welfare of the alleged incapacitated individual, his financial capabilities and integrity , his potential conflicts of interests, the wishes of the alleged incapacitated individual, and the recommendations of the relatives of the alleged incapacitated individual;

(3) approval or disapproval by the alleged incapacitated individual of the proposed fiduciary;

(4) an evaluation of the future care and treatment needs of the alleged incapacitated individual;

(5) if there is a proposed residential plan for the alleged incapacitated individual, whether that plan is in the best interest of the alleged incapacitated individual;

(6) a recommendation regarding any rights in Section 62-5-304A, which should be retained by the alleged incapacitated individual;

(7) whether the matter should be heard in a formal hearing even if all parties are in agreement; and

(8) any other recommendations relevant to the matter.

(E) The court in its discretion may extend or limit the responsibilities or authority of the guardian ad litem.

REPORTER’S COMMENTS

The 2017 amendments were added to this section to provide guidance with specificity for the responsibilities and duties of the guardian ad litem as part of the guardianship and conservatorship process to insure that the highest level of integrity and dignity was applied to the process. In doing so, the alleged incapacitated individual’s best interests would be protected to the maximum extent possible while establishing evidence of the alleged incapacitated individual’s capacity to manage his personal and financial matters and at what level he may require assistance or can manage using a less restrictive alternative. These provisions have incorporated some of the previous responsibilities of the visitor in these proceedings. The duties and responsibilities of the guardian ad litem as set forth also provide a paradigm for addressing potential legal issues which may arise in the course of the guardian ad litem’s appointment. Section 62-5-106 is also broad enough to allow the court to instruct the guardian ad litem on issues which have not been stated in any of the provisions of this section that could be unforeseen. This section further addresses how hearings should be treated whether in an informal or formal manner, and allows the court discretion in extending or limiting the express authority of a guardian ad litem in conformity with the authority originally granted to the guardian ad litem. The notes of the guardian ad litem are to be treated in the same manner as materials made in preparation for trial and are generally not discoverable unless the party seeking discovery can meet the test. For example, if the guardian ad litem interviewed a neighbor of the alleged incapacitated individual, and that neighbor moved out of state before the party had a chance to conduct their own interview, then the party seeking the notes of the interview could potentially show a need for the notes and an inability to get that information except from the guardian ad litem.

SECTION 62-5-108. Temporary orders and hearings.

The process for emergency orders without notice, emergency hearings, duration, and security is as follows:

(1) Emergency orders without notice must not be issued unless the moving party files a summons, motion for emergency order with supporting affidavit(s), verified pleading, notice of emergency hearing, and any other document required by the court. The verified pleading, motions, and affidavits shall set forth specific facts supporting the allegation that an immediate and irreparable injury, loss, or damage will result before notice can be served on adverse parties and a hearing held pursuant to subsection (B).

(a) If emergency relief is required to protect the welfare of an alleged incapacitated individual, the moving party must present an affidavit from a physician who has performed an examination within thirty days prior to the filing of the action, a motion for the appointment of counsel if counsel has not been retained, and a motion for the appointment of a proposed qualified individual to serve as guardian ad litem.

(b) If the emergency relief requested is an order for:

(i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or

(ii) the removal of an existing guardian, conservator, or other fiduciary, and the appointment of a substitute, then the moving party must submit evidence of the suitability and creditworthiness of the proposed fiduciary.

(2) If the motion for an emergency order is not granted, the moving party may seek temporary relief after notice pursuant to subsection (B) or proceed to a final hearing.

(3) If the motion for an emergency order is granted, the date and hour of its issuance must be endorsed on the order. The date and time for the emergency hearing must be entered on the notice of hearing and it must be no later than ten days from the date of the order or as the court determines is reasonable for good cause shown.

(4) The moving party shall serve all pleadings on the alleged incapacitated individual, ward or protected person and other adverse parties immediately after issuance of the emergency order.

(5) If the moving party does not appear at the emergency hearing, the court may dissolve the emergency order without notice.

(6) Evidence admitted at the hearing may be limited to pleadings and supporting affidavits. Upon good cause shown or at the court’s direction, additional evidence may be admitted.

(7) On two days’ notice to the party who obtained the emergency order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move for the emergency order’s dissolution or modification, and in that event, the court shall proceed to hear and determine the motion as expeditiously as possible and may consolidate motions.

(8) No emergency order for conservatorship must be issued except upon the court receiving adequate assurances the assets will be protected, which may include providing of security by the moving party in a sum the court deems proper for costs and damages incurred by any party who without just cause is aggrieved as a result of the emergency order. A surety upon a bond or undertaking submits to the jurisdiction of the court.

(9) The court may take whatever actions it deems necessary to protect assets, including, but not limited to, issuing an order to freeze accounts.

The process for temporary orders and temporary hearings with notice is as follows:

A temporary order must not be issued without notice to the adverse party.

An order for a temporary hearing must not be issued unless the moving party files a summons, motion for temporary hearing with supporting affidavits, and a petition or other appropriate pleading setting forth specific facts supporting the allegation that immediate relief is needed during the pendency of the action, and an affidavit of service of the notice of the temporary hearing to adverse parties.

If temporary relief is required to protect the welfare of an alleged incapacitated individual, in addition to the requirements set forth above in subsection (B)(2), the moving party shall present an affidavit from a physician who has performed an examination within forty-five days prior to the filing of the action, a motion for the appointment of counsel if counsel has not been retained, and a motion for appointment of a proposed qualified individual to serve as guardian ad litem.

If the temporary relief requested is an order for:

appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or

removal of an existing guardian, conservator or other fiduciary, and the appointment of a substitute, in addition to the requirements set forth in subsection (B)(2) and (a), as applicable, the moving party shall submit evidence of the suitability and creditworthiness of the proposed fiduciary.

(3) If the motion for temporary relief is not granted, the action will remain on the court docket for a final hearing.

(4) If the motion for temporary relief is granted, the court shall enter a date and time for the temporary hearing on the notice of hearing.

(5) The moving party shall serve pleadings on the alleged incapacitated individual, ward or protected person, and other adverse parties. Service must be made no later than ten days prior to the temporary hearing or as the court determines is reasonable for good cause shown.

(6) Temporary orders resulting from the hearing shall expire six months from the date of issuance unless otherwise specified in the order.

(C) In an emergency, the court may exercise the power of a guardian with or without notice if the court makes emergency findings as required by the Adult Health Care Consent Act, Section 44-66-30.

(D) After preliminary hearing upon such notice as the court deems reasonable, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the alleged incapacitated individual as may be required for his benefit or the benefit of his dependents. Notice of the court’s actions shall be given to interested parties as soon thereafter as possible.

(E) 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 62-5-304A. Rights and powers of ward and guardian.

The court shall set forth the rights and powers removed from the ward. To the extent rights are not removed, they are retained by the ward. Such rights and powers include the rights and powers to:

marry or divorce;

reside in a place of the ward’s choosing, and consent or withhold consent to any residential or custodial placement;

travel without the consent of the guardian;

give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;

make end-of-life decisions including, but not limited to, a ‘do not resuscitate’ order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration;

consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment;

authorize disclosures of confidential information;

operate a vehicle;

vote;

be employed without the consent of a guardian;

consent to or refuse educational services;

(12) participate in social, religious or political activities;

(13) buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under Section 62-5-422;

(14) make, modify, or terminate contracts;

(15) bring or defend any action at law or equity; and

(16) any other rights and powers that the court finds necessary to address.

(B) The court shall set forth the rights and powers vested in the guardian. These rights and powers include, but are not limited to, the rights and powers to:

(1) determine the place where the ward shall reside and consent or withhold consent to any residential or custodial placement;

(2) consent to travel;

(3) consent or refuse to consent to visitation with family, friends and others;

(4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;

(5) make end-of-life decisions, including, but not limited, to a “do not resuscitate” order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration;

(6) consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment;

(7) authorize disclosures of confidential information;

(8) consent to or refuse educational services;

(9) consent to employment;

(10) make, modify, or terminate contracts related to the duties of the guardian;

(11) bring or defend any action at law or equity; and

(12) exercise any other rights and powers that the court finds necessary to address.

(C) Nothing in this section must be construed as removing any rights guaranteed by the Bill of Rights for Residents of Long-Term Care Facilities under Chapter 81, Title 44.

(D) The attorney-client privilege between the ward and the ward’s counsel must not be removed by the appointment of a guardian.

SECTION 62‑5‑407. Order of appointment; rights and powers of protected person.

(A) The court shall exercise its authority to encourage maximum self‑reliance and independence of the protected person and issue orders only to the extent necessitated by the protected person’s mental and adaptive limitations.

(B) The court shall set forth the rights and powers removed from the protected person. To the extent rights are not removed, they are retained by the protected person. Such rights and powers include the rights and powers to:

(1) buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under Section 62‑5‑422;

(2) make, modify, or terminate contracts; or

(3) bring or defend any action at law or equity.

(C) Nothing in this section shall prevent the protected person from notifying the court that he is being unjustly denied a right or privilege or requesting removal of the conservator or termination of the conservatorship pursuant to Section 62‑5‑428.

(D) Unless a court order specifies otherwise, the appointment of a conservator terminates the parts of the power of attorney that relate to matters within the scope of the conservatorship. The authority of an agent to make health care decisions or authority granted by advance directives regarding health care is not altered or changed by the appointment of a conservator.

Other Statutes To Review as Needed:

62-1-401. Notice; method and time of giving.

(Sets forth that generally, 20 days’ notice of a hearing is required; provides information about how notice is to be given.)

62-1-402. Notice; waiver.

(Sets forth that a person, including through his GAL, conservator, or other fiduciary, may waive notice in writing.)

62-5-105. Costs and expenses; attorney’s fees.

(Sets forth that the court has the discretion to award costs and expenses, including reasonable attorney’s fees, to any party to be paid by another party or from the assets of a ward or protected person; court-appointed GAL, counsel are entitled to reasonable compensation; petitioners are responsible for costs and fees unless otherwise ordered.)

62-5-303B. Procedure for court appointment of a guardian; appointments of counsel, guardians ad litem, and an examiner.

(Sets forth time frames for the court to make appointments of GAL, counsel, examiner; provides that court may appoint counsel for GAL if needed; appointed counsel may seek to be relieved if A.I.I. cannot communicate, may serve as GAL instead.)

62-5-303C. Procedure for court appointment of a guardian; hearing.

(Court shall hold a hearing unless waived by A.I.I. and GAL report indicates hearing would not further interests of justice; if hearing waived, court has discretion whether to hold hearing, conduct informal proceeding, or proceed without a hearing. If no formal hearing, court issues a temporary consent order valid for 30 days; a ward, during that 30 days may request a formal hearing. If none is requested, court issues a final order.)

62-5-307A. Removal of guardian; termination of incapacity.

(If a ward or an interested party seeks order that ward is no longer incapacitated, to appoint a successor guardian, or to modify provisions of existing court order, court may appoint a GAL and counsel, as well as examiners as necessary to evaluate and confirm allegations of petition.)

62-5-402. Protective proceedings; minors.

(Sets forth that protective proceedings for minors may be done informally. Generally, if a minor needs a conservatorship or protective order, a GAL is not appointed; however, court may appoint as needed.)

62-5-403. Protective proceedings; incapacitated and disabled persons.

(Sets forth the requirements for the summons and petition.)

62-5-403B. Appointment of counsel and guardian ad litem.

(Sets forth time frame for court appointments of counsel and GAL, as well as examiner for A.I.I.; court may appoint counsel for GAL as needed; same as 62-5-303B)

62-5-403C. Hearing; waiver.

(Same as 62-5-303C. Gives court discretion to issue a temporary consent order if hearing waived; order becomes final if no hearing demanded in 30 days and parties and GAL agree to terms.)

62-5-414. General duty of conservator; financial plan.

(Sets forth that court may require conservator to file a financial plan for managing, expending and distributing assets of protected person’s estate. Form for financial plan is provided by court.)

62-5-416. Reporting requirements.

(Provides that conservators must file reports annually and as otherwise directed by the court; sets forth the requirements of the report - which are incorporated into court forms available at www.sccourts.org/forms. Court may appoint GAL to review a report or plan.

62-5-428. Actions for requests subsequent to appointment; procedures.

(Protected person, interested party may request informal or formal relief after the issuance of an initial protective order. Court may appoint a GAL.)

STATE OF SOUTH CAROLINA	)
)
COUNTY OF	)
)
)
IN THE MATTER OF:	)	PROBATE COURT USE ONLY
,	) )	IN THE PROBATE COURT
an alleged incapacitated individual	) )	CASE NUMBER -GC- -
)
)	GUARDIAN AD LITEM REPORT

The undersigned court-appointed Guardian ad Litem in this guardianship and/or protective proceeding submits the following report concerning the investigation which was conducted pursuant to S.C. Code Ann. § 62-5-106.

DURING MY INVESTIGATION, I INTERVIEWED THE FOLLOWING INDIVIDUALS:

NAME OF PERSON INTERVIEWED:	DATE OF INTERVIEW:	METHOD OF INTERVIEW (e.g. in person, by phone):
1.
2.
3.

DURING MY INVESTIGATION, I REVIEWED THE FOLLOWING DOCUMENTS:

TYPE OF DOCUMENT:	PROVIDER OF THE DOCUMENT:
1.
2.
3.

REPORT ON ALLEGED INCAPACITATED INDIVIDUAL:

Date and place of interview(s):

Was the alleged incapacitated individual (A.I.I.) oriented to the time and place?

YES	NO

Describe the A.I.I’s physical appearance:

Who are the A.I.I’s closest family members?

Does the A.I.I. have a primary care physician or other treating medical provider?

YES	NO If yes, list the doctor’s name, address, and phone number.

Does the A.I.I. have an attorney? YES	NO If yes, list the attorney’s name, address, and phone number.\

Please list any known medical diagnoses of the A.I.I.

What are the current care and treatment needs of the A.I.I.?

What are the future care and treatment needs of the A.I.I.?

The A.I.I. has been rated or found to be: (Check all that apply)

Disabled;

Mentally ill or incompetent;

Chemically Dependent; or

None of the above.

The A.I.I. would benefit from: (Check all that apply)

Further education;

Further training;

Therapy or treatment;

Medical aids or equipment;

An operation or medical procedure(s);

Structural living arrangements;

Psychiatric treatment; or

None of the above.

Pursuant to S.C. Code Ann. §§ 62-5-304A(A) and 62-5-407, as Guardian ad Litem, I believe that the A.I.I. should retain the following rights and powers:

(Check the rights and powers you recommend the A.I.I. should retain.)

Marry or divorce;

Reside in a place of the A.I.I.’s choosing, and consent or withhold

consent to any residential or custodial placement;

Travel without the consent of a guardian;

Give, withhold, or withdraw consent and make other informed decisions relative to medical,

mental, or physical examinations, care, treatment, and therapies;

Make end-of-life decisions including, but not limited to, a “do not resuscitate” order or the

application of any medical procedures intended solely to sustain life and consent or withhold consent to artificial nutrition and hydration;

Consent or refuse to consent to hospitalization and discharge or transfer to a residential setting,

group home, or other facility for additional care and treatment;

Authorize disclosure of confidential information;

Operate a vehicle;

Vote;

Be employed without the consent of a guardian;

Consent to or refuse educational services;

Participate in social, religious, or political activities;

Buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon a conservator under S.C. Code Ann. § 62-5-422;

Make, modify, or terminate contracts;

Bring or defend any action at law or equity; and

Other:

If necessary, please explain these recommendations. If additional space is needed, please use additional sheets and attach.

Is the A.I.I. capable of communicating, with or without reasonable accommodations, his or her wishes, interests, or preferences regarding the appointment of a guardian and conservator?

YES	NO If no, then proceed to Section II.

What is the plan of the A.I.I. to provide care for himself or herself?

What is the plan of the A.I.I to (i) manage his or her property or financial affairs, (ii) provide for his or her support, and/or (iii) provide support for his or her legal dependents?

If a Petition for guardianship is pending, how does the A.I.I. feel about the proposed guardianship and the proposed guardian?

If a Petition for conservatorship is pending, how does the A.I.I. feel about the proposed conservatorship and the proposed conservator?

REPORT ON THE PROPOSED GUARDIAN:

(If there is not a Petition for Appointment of Guardian pending, proceed to Section III.)

Name of the proposed guardian:

Relationship of the proposed guardian to the A.I.I.:

Is the proposed guardian currently a primary caretaker for the A.I.I.?

YES	NO If no, who is?

What are the proposed guardian’s long-term plans for the A.I.I.?

Upon review of the proposed guardian’s criminal background check, do you have any concerns regarding the ability of the proposed guardian to serve in this role?

YES	NO If yes, please explain your concerns.

Has DSS ever investigated the proposed guardian?

YES	NO

If yes, please explain the circumstances and provide any information the DSS record revealed that you believe the Court should know.

Did your investigation of the proposed guardian reveal anything that you believe the Court should know?

YES	NO If yes, please explain.

Do you believe the proposed guardian is an appropriate person to serve as a guardian for the A.I.I. considering (i) his or her geographic location, (ii) his or her familial or other relationship, (iii) his or her ability to carry out the duties of the guardianship, (iv) his or her potential conflict of interests, (v) the wishes of the A.I.I., and (vi) the recommendations of the relatives of the A.I.I.? Provide a detailed response.

Did your investigation reveal any other person who should be considered to be appointed the guardian in this matter?

YES	NO If yes, please explain, including the name, address, telephone number, age, and relationship to the A.I.I.

REPORT ON THE PROPOSED CONSERVATOR

(If there is not a Petition for Appointment of Conservator pending, proceed to Section IV.)

Name of the proposed conservator:

Relationship of the proposed conservator to the A.I.I.:

Is the proposed conservator currently the primary person assisting the A.I.I. with his or her finances?

YES	NO If no, who is?

What assets does the A.I.I. own or income does the A.I.I. receive that necessitates the need for a conservator?

Upon review of the proposed conservator’s criminal background check, do you have any concerns regarding the ability of the proposed conservator to serve in this role?

YES	NO If yes, please explain your concerns.

Has DSS ever investigated the proposed conservator?

YES	NO If yes, please explain the circumstances and provide any information the DSS record revealed that you believe the Court should know.

Upon review of the proposed conservator’s credit report, do you have any concerns regarding the ability of the proposed conservator to serve in this role?

YES	NO If yes, please explain your concerns.

Did your investigation of the proposed conservator reveal anything that you believe the Court should know?

YES	NO If yes, please explain.

Do you believe the proposed conservator is an appropriate person to serve as a conservator for the A.I.I. considering (i) his or her geographic location, (ii) his or her familial or other relationship, (iii) his or her ability to carry out the duties of the conservatorship, (iv) his or her potential conflict of interests, (v) the wishes of the A.I.I., and (vi) the recommendations of the relatives of the A.I.I.? Provide a detailed response.

Did your investigation reveal any other person who should be considered to be appointed the conservator in this matter?

YES	NO If yes, please explain, including the name, address, telephone number, age, and relationship to the A.I.I.

REPORT ON THE CONDITIONS OF PRESENT PLACE OF RESIDENCE AND FUTURE RESIDENCE

Date and time visited:

Address (including street, city, county, state, zip):

Type of abode:

Condition:

Exterior:

Interior:

Utilities working:

Cleanliness:

Fire hazards:

Other (explain):

Is there a proposed change in the residential plan for the A.I.I.?

YES	NO

If yes, please explain the plan and whether you believe the plan is in the best interest of the A.I.I.

CONCLUSIONS AND ADDITIONAL COMMENTS

Do you believe the A.I.I. is an incapacitated person pursuant to S.C. Code Ann. § 62-5-101(13)?

YES	NO

Do you believe the A.I.I. needs a guardian?

YES	NO

Do you believe there is a less restrictive alternative to the guardianship?

YES	NO If yes, please explain.

Do you believe there should be limitations placed on the guardianship?

YES	NO If yes, please explain.

Pursuant S.C. Code Ann. § 62-5-304A(B), as Guardian ad Litem, I believe that a guardian’s rights and powers shall include, but not be limited to:

(Check the rights and powers you recommend be vested with a guardian.)

Determine the place where the ward shall reside and consent or withhold consent to any residential or custodial placement;

Consent to travel;

Consent or refuse to consent to visitation with family, friends, and others;

Give, withhold, or withdraw consent and make other informed decisions relative to medical mental, or physical examinations, care, treatment, and therapies;

Make end-of-life decisions including, but not limited to, a “do not resuscitate” order or the application of any medical procedures intended solely to sustain life and consent or withhold consent to artificial nutrition and hydration;

Consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment;

Authorize disclosure of confidential information;

Consent to employment;

Make, modify, or terminate contracts related to the duties of the Guardian;

Consent to or refuse educational services; and

Bring or defend any action at law or equity.

If necessary, please explain these recommendations. If additional space is needed, please use additional sheets and attach.

Do you believe the A.I.I. needs a conservator?

YES	NO

Do you believe there is a less restrictive alternative to the conservatorship?

YES	NO If yes, please explain.

Do you believe there should be limitations placed on the conservatorship?

YES	NO If yes, please explain.

Prior to your appointment, did you know the A.I.I.?

YES	NO If yes, please explain.

Prior to your appointment, did you know the person(s) seeking appointment as guardian and/or conservator?

YES	NO If yes, please explain.

Prior to your appointment, did you or do you now have a personal interest in these proceedings?

YES	NO If yes, please explain.

Do you believe there should be a formal hearing on this matter even if all parties are in agreement?

YES	NO If yes, please explain.

Do you have any other recommendations relevant to this matter?

YES	NO If yes, please explain.

Executed this day of , 20 .

Signature:
Print Name:
Firm Name (if applicable):
Bar Number (if applicable):
Address:
Telephone:
Email:

STATE OF SOUTH CAROLINA	)
)
COUNTY OF	)
)
IN THE MATTER OF:	)
,	)
an alleged incapacitated individual.	)	PROBATE COURT USE ONLY
) )	IN THE PROBATE COURT
,	)	CASE NUMBER -GC- -
Petitioner(s),	)
vs.	)	ORDER APPOINTING GUARDIAN AD LITEM
,	)
Respondent(s).	)

As a Petition has been filed in this Court that requires the appointment of a Guardian ad Litem (GAL) for the above-named alleged incapacitated individual (A.I.I.), I hereby appoint as GAL in accordance with S.C. Code Ann. §§ 62-5-303B and 62-5-403B.

I direct that the GAL shall have access to all reports, records, and information relevant to the A.I.I. in order to ascertain the facts. The GAL is authorized to have access to records prepared or related to any medical and psychological treatment of the A.I.I. and to discuss medical and psychological treatment with any medical or health care professionals. This access is authorized by this Order, as provided by 45 CFR 164.512(e)(l)(i), the Health Insurance Portability and Accountability Act (HIPPA), which authorizes covered entities to disclose protected health information in the course of any judicial or administrative proceeding when responding to an Order of the Court.

The GAL shall review and comply with the requirements of S.C. Code Ann § 62-5-106, which is incorporated by reference.

Given the requirements stated in 42 C.F.R. Part II with regard to the release of information concerning drug or alcohol treatment, the Court will execute an additional order if it is necessary for the GAL to access such records for the A.I.I.

To facilitate reasonable investigation of information pertaining to the A.I.I., the GAL shall immediately have access to all records and information with authorization to speak with interested persons including, but not limited to, the following sources: the legal guardian, law enforcement agencies, health care providers, mental health care providers, residential care providers, the SC Departments of Social Services, Mental Health, Health and Human Services, the U.S. Department of Veterans Affairs, school officials, vocational rehabilitation centers, and any financial institution in which it is believed that there are funds on deposit belonging to the A.I.I. or a safe deposit box belonging to the A.I.I.

The GAL is also entitled to receive copies of any existing will, power of attorney, health care power of attorney, and living will executed by the A.I.I.

The GAL shall file with the Court and serve a written report with recommendations on all parties forty-eight (48) hours prior to the Court hearing unless otherwise ordered by the Court.

In that the person serving as a GAL acts as the Court's agent, he or she is entitled to quasi-judicial immunity for acts performed within the scope of his or her duties as the GAL. Once a guardian or conservator is appointed, or the Court issues another final order, the GAL’s role in this matter is terminated.

The GAL is required to submit an affidavit of fees and costs to the Court at the conclusion of this case. The Court will issue an order approving costs and fees in the amount determined by the Court. No payments shall be rendered until a Court order is issued. Fees awarded herein shall not exceed $ per hour for non-contested and $ for contested cases.

THEREFORE, IT IS HEREBY ORDERED that is appointed Guardian ad Litem in this matter and the above directives of the Court are to be followed.

IT IS SO ORDERED.

, Judge of Probate

day of , 20
, South Carolina

IN THE MATTER OF:

CASE NUMBER:

ACCEPTANCE OF APPOINTMENT

I hereby accept the appointment as Guardian ad Litem in this matter and agree to comply with the terms and requirements as set forth in the Order of Appointment of a Guardian ad Litem.

Executed this day of , 20 .

Signature:
Print Name:
Firm Name(if applicable):
Bar Number (if applicable):
Address:
Telephone:
Email:

For the full text of Article 5 of the Probate Code, visit https://www.scstatehouse.gov/code/t62c005.php.