CHAPTER ONE

INTRODUCTION TO THE COURT SYSTEM

Overview of the South Carolina Court System

Overview of the Probate Court

Probate Court Terminology

Probate Court Processes and Procedures

OVERVIEW OF THE SOUTH CAROLINA COURT SYSTEM

The South Carolina judicial system is made up of different courts classified according to the types of cases they handle and at what level the court falls in the hierarchy of the judicial system. The types of courts range from magistrate and municipal courts to the South Carolina Supreme Court. The magistrate and municipal courts are the entry-level courts in the judicial system for lower-level criminal offenses and civil cases with value below a certain amount, and the South Carolina Supreme Court is the highest court in this state’s judicial system. The levels of the court system, starting with the highest court, are as follows:

South Carolina Supreme Court;

South Carolina Court of Appeals;

Family Court, Circuit Court (General Jurisdiction, Civil and Criminal), and Master-In-Equity (referrals from Circuit Court);

Probate Courts; and

Magistrate Courts and Municipal Courts.

Generally speaking, courts can be classified as trial courts or appellate courts. Trial courts are often referred to as the “lower courts” in the court system. An appellate court is a higher court in which appeals are filed from a lower court decision if a litigant in a case does not agree with the ruling of the judge in the lower court.

Lower courts can be classified further by the types of cases and proceedings they are permitted to hear. The term “jurisdiction” refers to WHAT types of cases may be filed in a particular court and the authority that court has to issue a ruling concerning the case, as well as its authority to have the ruling apply to the parties involved in the case. The terms “exclusive jurisdiction” and “limited jurisdiction” further define the authority of a court to hear certain types of cases.

Another important concept is “venue.” Venue is the legal term that describes WHERE the action may be filed. For instance, an action could be one that is covered by the jurisdiction of the probate court, but the action could be filed in the wrong county, making it an inappropriate venue for that action. The concept of venue is particularly important in probate cases, especially estates, guardianships, and conservatorships.

If there is a question about an alleged incapacitated individual’s (A.I.I.’s) home state or if a guardianship or conservatorship is being transferred from another state, you may need to understand the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (SCAGPPJA). SCAGPPJA controls which state should have jurisdiction over the matter. The law establishes the concept of the “home state” and “significant connection” states, rather than relying solely on the physical presence of the A.I.I. This helps prevent forum shopping or what is sometimes referred to as “granny snatching” where one family member takes the A.I.I. out of the home state and into another state and then brings a guardianship or protective proceeding.

OVERVIEW OF THE PROBATE COURT

There are forty-six (46) counties in South Carolina and each one has a probate court. Probate judges are popularly elected and serve a four-year term. The authority of each probate court is within the county in which it is located; the court’s jurisdiction is not statewide. The probate court has “exclusive original jurisdiction” involving the administration of estates, guardianships and conservatorships, involuntary civil commitments regarding mental illness and substance abuse, trusts, and the establishment of special needs trusts. Exclusive original jurisdiction refers to the fact that, except as noted, the probate court is the only court in which certain actions may be commenced. Probate courts have “concurrent jurisdiction” with the circuit courts concerning powers of attorney and approval of settlements involving minors or incapacitated individuals. In actions to approve settlements, the jurisdiction of the probate court is limited to amounts of $25,000.00 or less. Concurrent jurisdiction also exists with the family courts in determining whether a common-law marriage existed between a decedent and an individual alleging to be the spouse of the decedent. Concurrent jurisdiction refers to the legal authority of more than one court in the judicial system to hear a matter and render a decision regarding that issue, given certain circumstances.

The Duties of the Probate Court are to:

Administer estates;

Issue marriage licenses;

Appoint and oversee guardians;

Appoint and oversee conservators;

Hear and decide guardianship and conservatorship litigation;

Process and hear cases involving involuntary civil commitments for mental illness and chemical dependency; and

Hear and decide estate and trust litigation.

What Situations Can Lead to the Need to File a Guardianship and/or Conservatorship Action in Probate Court?

The alleged incapacity of an individual which renders him or her unable to make or communicate reasonable decisions even with supports and assistance;

The need to handle financial and/or business affairs if an individual is unable to act and has not designated anyone to handle financial affairs;

The need to make healthcare decisions and/or decisions about place of residence if an individual is unable to make decisions and has not designated anyone to make such decisions; and

The need to make end-of-life decisions for an individual who has no Living Will or other advance directive.

What Documents May Prevent the Need for a Guardian and/or Conservator?

Durable Power of Attorney (POA). For any POA executed on or after January 1, 2017, the S.C. Uniform Power of Attorney act states that a POA is considered to be durable unless there is language in the document stating otherwise.

Health Care of Attorney (HCPOA). The S.C. Statutory Health Care Power of Attorney Act took effect on January 1, 2017 regarding health care powers of attorney. There is no requirement that the HCPOA has to be filed with the Register of Deeds office.

Declaration of a Desire for a Natural Death (Living Will).

Without these documents, a conservatorship may be needed to handle financial affairs, and a guardianship may be necessary to make health care and end-of-life decisions. Even if these documents have been executed, disputes regarding their validity, including whether or not there has been a revocation, or the action or inaction of an agent, may trigger the need for a guardianship or conservatorship or other protective arrangement.

PROBATE COURT PROCESSES AND PROCEDURES

The general purpose of court processes is to ensure uniformity, order, fairness, and the application and observance of due process. Due process is the legal concept that recognizes the right of the A.I.I., who is the subject of a legal action, to have formal notice of the action; to respond to the allegations set forth in the pleadings; and to assert his or her position during a conference, trial, or hearing in the matter, with representation of counsel. Other parties may participate with or without counsel.

In guardianship and protective proceedings, the applicable statutes and court processes are designed to promote the best interests of the A.I.I. Equally important is maximizing the individual’s independence and control over his or her own decision-making. The extent of personal decision-making and independence to be retained by the individual is determined after considering available supports (such as hearing aids, medical alerts, etc.) and assistance (such as community and family resources), which may eliminate the need for a guardianship or conservatorship.

Filing of Pleadings

A summons and petition must be filed together to initiate the case. The purpose of the summons is to give notice of the action to the respondents and to inform them of the time requirements for responding. The purpose of the petition is to state what allegations the filing party is making and what remedies the filing party is seeking from the court. The filing of a petition makes the matter a formal proceeding.

Either the required filing fee or the filing of the Motion and Affidavit to Proceed In Forma Pauperis is required.

The petition can include a request for an emergency or a temporary appointment of a guardian or conservator or the issuance of some other protective order.

The respondents, including the A.I.I., have the right to file a response to the petition (called an “Answer”).

All respondents, including the A.I.I., must be personally served with copies of the summons and petition. Notice of the right to counsel must be served on the A.I.I. with the summons and petition.

In some matters, such as a minor conservatorship, an application, rather than a formal summons and petition is permitted. A proceeding with an application is an informal proceeding.

Appointment of the Attorney and Guardian ad Litem (GAL)

Whether the petition requests an emergency or temporary proceeding dictates how soon an attorney and GAL are appointed for the A.I.I.

In an emergency or temporary proceeding, the attorney and the GAL must be appointed as soon as reasonably possible.

If the petition does not request an emergency or temporary proceeding, and the A.I.I. does not have his or her own attorney, the court must appoint the attorney for the A.I.I. within fifteen (15) days of the filing of proof of service on the A.I.I., and the GAL must be appointed within thirty (30) days of the filing of proof of service on the A.I.I.

Appointment of the Examiner

The law requires that one examiner, who must be a physician (either an M.D. or a D.O.), be appointed by the court to conduct an examination of the A.I.I. The examiner must provide information on a court-required form regarding the capacity of the individual.

The court has the option of appointing one or more additional examiners trained in the fields of medicine, psychology, social work, or nursing to complete an examination and/or conduct specific testing, if needed.

The GAL is required to review the reports of the designated examiner(s) and may also need to speak with the examiner(s) as part of his or her investigation of the case.

Investigation of the Case by the GAL

The role of the GAL is to be the “eyes and ears” of the court by conducting an investigation and reporting what is in the best interests of the A.I.I. The GAL report provides information on the proposed fiduciary, the specific abilities and desires of the A.I.I., recommendations regarding the need for a guardianship and/or conservatorship and the suitability of the proposed fiduciary(ies).

Mediation

Mediation is an informal process by which a neutral person, the mediator, helps the parties to discuss settlement of contested matters. Settlement is voluntary, and the parties have the ability to decide whether and how to settle. The mediator is required to file a report of the mediation with the Probate Court, and any agreement must be incorporated into a court order.

Mediation may be required by the court or requested by the parties. Matters are usually contested for two primary reasons: the A.I.I. is opposed to the appointment of anyone to serve as guardian or conservator; or incapacity is not contested but there is an objection by the A.I.I. or another party regarding who should serve as guardian or conservator. Guidance regarding the extent to which the GAL is expected to participate in the mediation will be given by the court.

If mediation is appropriate, the parties may agree to attend mediation or the court may issue an order for mediation.

The issue of incapacity will not be decided as part of the mediation process, as the law requires the court to make a finding as to whether an individual is incapacitated. In addition, before mediation is used as the means to determine who will serve as guardian and/or conservator for an A.I.I. it is necessary for the GAL to investigate the individual(s) who has been nominated, in order to make a recommendation to the court regarding suitability.

Informal Conference or Hearing

In cases in which an Application is filed, a hearing may not be required or an informal conference may be held.

In cases in which a petition is filed, because it is a formal proceeding, a hearing is usually required. However, there are some instances in which a hearing may not be needed and the court may direct that an informal conference be held.

Regardless of whether there is an informal conference, hearing, consent agreement without mediation, or mediation agreement, an order will be issued by the court regarding the case.

Court Oversight, Monitoring, and Reporting Requirements After Appointment

When the court appoints a guardian and/or conservator, there are certain statutory provisions regarding the court’s continued oversight of the matter and the reporting requirements of the guardian and/or conservator.

Within thirty (30) days of appointment, the guardian must file a Plan of Care, based on the needs of the ward. Additionally, the guardian must file a report of the ward’s condition at least annually, using the Report of Guardian form.

In conservatorships, within thirty (30) days of appointment, the conservator must file an Inventory and Appraisement, listing all assets of the protected person and the fair market value of the assets. Annually or as otherwise directed by the court, the conservator must file a Conservator’s Report/Accounting. The Court may also require submission of a Financial Plan regarding the protected person’s estate.

The protected person or ward is permitted to come back before the court to ask that a decision be made regarding a return of capacity, which could end or restructure the guardianship or conservatorship and the extent of the authority initially granted by the court.

S.C. Code Ann. § 62-5-700, et seq.

S.C. Code Ann. §§ 62-8-101 to -123.

S.C. Code Ann. §§ 62-5-500 to -518.

S.C. Code Ann. §§ 44-77-10 to -160.