Guardianships and Alternatives to Guardianships GHS Nurturing Minds Conference February 24, 2017 Kirby Mitchell Senior Litigation Attorney South Carolina Legal Services (864) 679-3247 or kirbymitchell@sclegal.org

Better title might be: Alternatives to Guardianships... (….and only if none of those options solve the problem, then): Guardianship

Why ‘Alternatives to Guardianship’ 1st ? Under South Carolina law, if a less restrictive alternative is available that solves the problem, the guardianship should not be granted.

“Just Because We Have the Best Hammer Does Not Mean That Every Problem Is a Nail” – President Barack Obama, 2014

What are the Alternatives? Options that might be used, either alone or in tandem with others: in-home care daycare for adults emergency alert systems friendly visitor programs health services home health aides and appliances meals (either in a group setting or delivered) mental health counseling support groups

Some possible alternatives when medical care is really the issue: health care powers of attorney living wills surrogate decision-making under S.C.’s Adult Health Care Consent Act a range of services that might be available from the local hospital’s geriatric outreach program, DDSN, public school system, or visiting nurses.

Key question: What exactly is the problem? -- Driving? Procedure that is available through the South Carolina Department of Transportation. -- Handling money? Maybe SSA appointment of a representative payee. -- Medicaid applications? Try the staff at the DHHS office.

Guardianship Guardianship is a mechanism, established by the probate court after a hearing, that empowers one party to make decisions for another. A guardian is appointed as a means of providing continuing care and supervision of the incapacitated person. A guardianship is terminated by the death of the ward or if the ward has regained capacity.

Establishing a Guardianship --South Carolina courts have exclusive jurisdiction to appoint a guardian for an adult if: (1) South Carolina is the “home state” of the person to be protected, (2) a “significant connection” to the state exists, or (3) all other interested states have declined to exercise jurisdiction. --Appointment of independent visitor and counsel / GAL. --The person who is the subject of the petition must receive personal service of the notice of hearing at least 20 days prior to the hearing date. Notice is also required to be given to the spouse, parents, and adult children.

Proper Guardian? The following people shall be considered in the following order as long as they are competent, suitable, and willing to serve: A person nominated by the incapacitated person An attorney in fact appointed in a durable power of attorney The spouse of the person An adult child of the person A parent of the incapacitated person, including a person nominated by the deceased parent in a will or other writing A relative of the incapacitated person A person nominated by the person caring for the incapacited person or paying benefits to him Additionally, a suitable institution may be approved

What’s a Guardian do? --determines the person’s place of residence; gives consent necessary for medical or other professional care or service; must receive money on behalf of the person and apply it for care and education; must exercise care to conserve any assets of the person. --The duties of a guardian differ depending on whether there is a conservator. --As a guardian, the client must file an annual report with the court if the order does not require more frequent reporting. The report contains information about the living conditions, health, and social conditions of the ward.

Common question I’ve been asked regarding guardianships: “So, why all the fuss….. Why is getting a guardianship over my own family member such a hassle?”

My answer: Start with the U.S. Constitution…

Additional Considerations: ● A temporary guardianship can be set up for a short period of time for emergency situations. ● The temporary guardian’s duties have an expiration date. ● Attorney’s Fees ● Conservatorships

Questions?

Thank you to: Mary Frances Dennis, Furman’s 1st Medical Legal Partnership (MLP) Intern, for preparation of this PowerPoint presentation. Kirby Mitchell Senior Litigation Attorney South Carolina Legal Services 701 South Main Street, Greenville, SC 29601 (864) 679-3247 kirbymitchell@sclegal.org