Mental Health and Incapacity

At the Lowcountry Law Office on Aging, Mental Health & Disabilities, LLC, we believe in protecting, advancing and advocating for the rights of adults and children who have mental disabilities and cognitive decline. We envision an America where people who have mental illnesses or intellectual disabilities exercise their own life choices and have access to the resources that enable them to participate fully in their communities. Our advocacy is based on the principle that every individual is entitled to choice and dignity. For many people with mental disabilities, this means something as basic as having a decent place to live, supportive services and equality of opportunity.

Mental Incapacity Due to Aging, Mental Illness or Injury

The term "incapacitated" is not the same as the term “incompetent.” Incapacitated refers to someone who, for reasons of advanced age, intellectual or cognitive impairment, mental health issues, chronic alcohol or substance abuse issues, or for any other reason, is unable to manage their day to day affairs and make major medical and financial decisions without assistance. Sometimes an individual loses mental capacity, and likely will not regain it in the foreseeable future. Sometimes a decrease in capacity is temporary. Either way, in this type of situation, whether the loss of mental capacity is due to Dementia (Alzheimer's, Lewy Bodies, etc.), Cancer, Congestive Heart Failure, Brain Injuries, Stroke, ALS, Mental Retardation, Cerebral Palsy, Down's Syndrome, Autism, Bi-Polar Disorder, Schizophrenia or a related disorder, chronic drug or alcohol abuse or some other life-altering illness or injury, it may become necessary to petition the County Probate Court to have a Guardian and Conservator appointed for the incapacitated individual in order to obtain necessary medical care, apply for and receive government benefits, pay bills and manage finances, and prevent or end the abuse or neglect of someone who cannot make his or her own decisions responsibly or protect themselves. Individuals who are incapacitated should not sign checks or any other legal documents, including Durable and Health Care Powers of Attorney, as they are unable to understand and appreciate the legal implications of the documents which they are signing. Powers of Attorney must be signed before incapacity occurs--not after.

In the State of South Carolina, a Guardian is the person appointed by the Court to make day-to-day living decisions, placement decisions, end of life decisions and health care/medical decisions for someone who has been found to be mentally incapacitated. A Conservator is the person (or entity) appointed by the Court to make all financial decisions, pay bills, apply for and obtain all applicable government benefits, etc.

Whereas the same individual may be appointed to serve as both Guardian and Conservator, they are technically two different appointments for two different jobs. In addition, it is also possible for more than one individual to be appointed to serve as Co-Guardians and/or Co-Conservators.

In the event that no relatives are willing (and appropriate) to be appointed as Guardians and/or Conservator, it is also possible to have a professional Guardian and/or a professional Conservator appointed. This is also the preferred option if an individual either has no family members or the family members are inappropriate choices. It is important to remember that in order to be appointed Conservator, an individual must be bonded. If an individual cannot obtain a bond, that individual will not be appointed as Conservator. No bond, however, is required to be appointed Guardian.

In the State of South Carolina, the county Probate Court where the incapacitated person lives determines whether or not an attorney is required in order to file a Guardianship/Conservatorship action. In Charleston County, an attorney is required for these types of actions. In Berkeley and Dorchester counties, attorneys are not required, but instead families are strongly urged by the Court to obtain an attorney--particularly if the action is likely to be contested. The term "contested" applies when family members are arguing over who should be appointed, or if one family member believes that the family member caregiver has been abusive or has misused money or property belonging to the incapacitated person.

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