(A200, R211, H4234)

AN ACT TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 62-5-101, RELATING TO DEFINITIONS, SO AS TO REVISE THE DEFINITION OF "SUPPORTS AND ASSISTANCE"; BY AMENDING SECTION 62-5-103, RELATING TO FACILITY OF PAYMENT OR DELIVERY, SO AS TO CLARIFY THE NATURE OF THE FIFTEEN-THOUSAND-DOLLAR THRESHOLD; BY AMENDING SECTION 62-5-106, RELATING TO DUTIES OF GUARDIANS AD LITEM, SO AS TO INCREASE THE LENGTH OF TIME THE GUARDIAN AD LITEM HAS TO SUBMIT HIS REPORT PRIOR TO THE HEARING; BY AMENDING SECTION 62-5-108, RELATING TO EMERGENCY AND TEMPORARY ORDERS AND HEARINGS, SO AS TO CLARIFY CERTAIN ASPECTS OF THE PROCESS; BY AMENDING SECTIONS 62-5-303, 62-5-303A, 62-5-303B, 62-5-303C, AND 62-5-303D, ALL RELATING TO THE PROCEDURE FOR COURT APPOINTMENT OF A GUARDIAN, SO AS TO CLARIFY CERTAIN ASPECTS OF THE PROCESS; BY AMENDING SECTION 62-5-307, RELATING TO INFORMAL REQUESTS FOR RELIEF, SO AS TO CLARIFY THE WARD'S ABILITY TO SUBMIT CERTAIN REQUESTS TO THE COURT; BY AMENDING SECTION 62-5-401, RELATING TO VENUES, SO AS TO CLARIFY, AMONG OTHER THINGS, THAT, IN THE CASE OF MINOR CONSERVATORSHIPS, PROPER VENUE IS THE COUNTY IN WHICH THE MINOR RESIDES OR OWNS PROPERTY; BY AMENDING SECTION 62-5-403A, RELATING TO SERVICE OF SUMMONS AND PETITIONS, SO AS TO INCLUDE CERTAIN OTHER AFFIDAVITS AND REPORTS AMONG THOSE THAT MUST BE FILED WITH THE PETITION; BY AMENDING SECTION 62-5-403B, RELATING TO THE APPOINTMENT OF COUNSEL AND GUARDIANS, SO AS TO APPOINT NURSE PRACTITIONERS, PHYSICIAN ASSISTANTS, NURSES, AND PSYCHOLOGISTS TO SERVE AS EXAMINERS UNDER CERTAIN CIRCUMSTANCES; BY AMENDING SECTION 62-5-403C, RELATING TO HEARINGS AND WAIVERS, SO AS TO REVISE, AMONG OTHER THINGS, CERTAIN PROCEDURES IF NO PARTY REQUESTS A HEARING OR IF THE ALLEGED INCAPACITATED INDIVIDUAL WAIVES HIS RIGHT TO A HEARING; BY AMENDING SECTION 62-5-405, RELATING TO PROTECTIVE ARRANGEMENTS, SO AS TO REVISE CERTAIN ACTS THAT MAY BE PERFORMED BY CONSERVATORS AND SPECIAL CONSERVATORS; BY AMENDING SECTION 62-5-422, RELATING TO POWERS OF CONSERVATORS IN ADMINISTRATION, SO AS TO MAKE CONFORMING CHANGES REGARDING THE PAYMENT OF CERTAIN FEES; BY AMENDING SECTION 62-5-426, RELATING TO CLAIMS AGAINST PROTECTED PERSONS, SO AS TO REQUIRE, AMONG OTHER THINGS, THAT THE CLAIMANT ALSO MUST FILE A WRITTEN STATEMENT OF THE CLAIM WITH THE PROBATE COURT IN WHICH THE CONSERVATORSHIP IS UNDER ADMINISTRATION; BY AMENDING SECTION 62-5-428, RELATING TO ACTIONS FOR REQUESTS SUBSEQUENT TO THE APPOINTMENT, SO AS TO, AMONG OTHER THINGS, REVISE CERTAIN ACTIONS THAT THE COURT MAY TAKE AFTER THE TIME FOR RESPONSE TO THE PETITION HAS ELAPSED TO ALL PARTIES SERVED; BY AMENDING SECTION 62-5-433, RELATING TO DEFINITIONS AND PROCEDURES FOR SETTLEMENT OF CLAIMS IN FAVOR OF OR AGAINST MINORS OR INCAPACITATED PERSONS, SO AS TO, AMONG OTHER THINGS, DEFINE "GUARDIAN AD LITEM"; BY AMENDING SECTION 62-5-715, RELATING TO CONFIRMATIONS OF GUARDIANSHIPS OR CONSERVATORSHIPS TRANSFERRED FROM OTHER STATES, SO AS TO ALLOW THE COURT MORE DISCRETION AS TO THE TYPE OF DOCUMENTS IT MAY REQUIRE IN THE TRANSFER OF A GUARDIANSHIP OR CONSERVATORSHIP FROM ANOTHER JURISDICTION; BY AMENDING SECTION 62-5-716, RELATING TO THE REGISTRATION OF ORDERS FROM ANOTHER STATE, SO AS TO, AMONG OTHER THINGS, ACKNOWLEDGE THAT IN CERTAIN OTHER JURISDICTIONS, A GUARDIAN MAY ALSO HOLD THE SAME POWERS AS A CONSERVATOR; BY ADDING SECTION 62-6-401 SO AS TO ESTABLISH A TRANSFER ON DEATH; BY AMENDING SECTIONS 50-23-60, 50-23-70, 50-23-90, 50-23-130, 56-19-290, AND 56-19-420, ALL RELATING TO THE TRANSFER OF PROPERTY, SO AS TO INCLUDE REFERENCE TO TRANSFER ON DEATH; AND BY AMENDING SECTION 62-6-101, RELATING TO DEFINITIONS, SO AS TO DEFINE "OWNER", "TRANSFER ON DEATH", AND "TITLED PERSONAL PROPERTY".

Be it enacted by the General Assembly of the State of South Carolina:

Definitions

SECTION 1.    Section 62-5-101(23) of the S.C. Code is amended to read:

(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 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.

Facility of payment or delivery

SECTION 2.    Section 62-5-103 of the S.C. Code is amended to read:

Section 62-5-103.    (A) A person under a duty to pay or deliver money or personal property to a minor or incapacitated individual may perform this duty in amounts not exceeding a net aggregate amount of fifteen thousand dollars each year by paying or delivering the money or property to the conservator for the minor or incapacitated person, if the person under a duty to pay or deliver money or personal property has actual knowledge that a conservator has been appointed or an appointment is pending. If the net aggregate amount to be paid or delivered in a given year exceeds fifteen thousand dollars, a protective proceeding is required. If the person under a duty to pay or deliver money or personal property to a minor or incapacitated person does not have actual knowledge that a conservator has been appointed or that appointment of a conservator is pending, the person may pay or deliver the money or property in amounts not exceeding a net aggregate of fifteen thousand dollars each year to:

(1) a person having the care and custody of the minor or incapacitated individual with whom the minor or incapacitated individual resides;

(2) a guardian of the minor or an incapacitated individual; or

(3) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor or for the minor under the Uniform Transfers to Minors Act and giving notice of the deposit to the minor.

(B) The persons, other than a financial institution under subsection (A)(3) above, receiving money or property for a minor or incapacitated individual, serve as fiduciaries subject to fiduciary duties, and are obligated to apply the money for the benefit of the minor or incapacitated individual with due regard to:

(1) the size of the estate, the probable duration of the minority or incapacity, and the likelihood that the minor or incapacitated individual, at some future time, may be able to manage his affairs and his estate;

(2) the accustomed standard of living of the minor or incapacitated individual and members of his household; and

(3) other funds or resources used or available for the support or any obligation to provide support for the minor or incapacitated individual.

(C) The persons may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated individual's support. Money or other property received on behalf of a minor or incapacitated individual may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated individual. Excess sums must be preserved for future benefit of the minor or incapacitated individual, and any balance not used and property received for the minor or incapacitated individual must be turned over to the minor when he attains majority or is emancipated by court order; or, to the incapacitated individual when he has been readjudicated as no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application of the money or personal property.

(D) An employer may fulfill his duties to a minor or incapacitated individual by delivering a check to or depositing payment into an account in the name of the minor or incapacitated employee.

Independent investigations

SECTION 3.    Section 62-5-106(A)(2) of the S.C. Code is amended to read:

(2) conducting an independent investigation to determine relevant facts and filing a written report with recommendations no later than seventy-two 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;

(i) 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;

Emergency orders, temporary orders, and hearings

SECTION 4.    Section 62-5-108 of the S.C. Code is amended to read:

Section 62-5-108.    (A) The process for emergency orders without notice is as follows:

(1) Emergency orders without notice must not be issued unless the moving party files a summons, verified petition, notice of and motion for emergency relief and hearing with any available supporting affidavit(s), and any other document required by the court. The verified petition, motion, 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 requested, the moving party must present evidence of the emergency and of the individual's incapacity to the court's satisfaction including, but not limited to, an affidavit from a physician or nurse practitioner, or at the discretion of the court, a physician assistant or psychologist, who has performed an examination within thirty days prior to the filing of the action. Additionally, the moving party shall file a motion for the appointment of counsel if counsel has not been retained for an alleged incapacitated individual, and a motion for the appointment of a 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 emergency relief is not granted, the moving party may seek temporary relief after notice pursuant to subsection (B) or proceed to a final hearing. The court may, in its discretion, treat a motion for emergency relief as a motion for temporary relief as set forth in subsection (B).

(3) If the motion for an emergency relief 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, counsel for the alleged incapacitated individual, guardian ad litem, 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 verified pleadings and any supporting affidavits. Upon good cause shown or at the court's direction, additional evidence of incapacity and the nature of the emergency 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, an 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.

(10) Upon the hearing on the ex parte order, if the court continues its prior emergency order, the order must be for a duration of no more than six months unless otherwise specified in an order. A hearing held for the purpose of the issuance of a final order shall be de novo as to all issues.

(11) 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.

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

(1) A temporary order must not be issued without proof of service on a notice of hearing to the alleged incapacitated individual, ward or protected person, counsel for the alleged incapacitated individual, the guardian ad litem, and other parties.

(2) A temporary hearing may be scheduled upon the filing of the summons, motion for temporary hearing with any supporting affidavits, a verified petition, and motions for the appointment of counsel and guardian ad litem if none have been previously appointed or retained. The temporary hearing may not be held fewer than ten days from service on all interested parties or as the court determines is reasonable.

(a) If temporary relief is requested, the moving party shall present evidence of the need for temporary relief and of incapacity, including without limitation, an affidavit from a physician or nurse practitioner or, at the discretion of the court, a physician assistant or psychologist, who has performed an examination within the previous forty-five days.

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

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

(ii) 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 de novo hearing on the underlying petition.

(4) If the court determines that the motion for temporary relief should be set for a hearing, the court shall enter a date and time for the temporary hearing on the notice of hearing.

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

(C) 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.

(D) A hearing concerning the need for a protective order or the appointment of a permanent guardian or conservator must be a hearing de novo as to all issues before the court.

Seeking a finding of incapacity or appointment of guardian ad litem

SECTION 5.    Section 62-5-303(A) of the S.C. Code is amended to read:

(A) A person seeking a finding of incapacity, appointment of a guardian, or both, shall file a summons and petition. When more than one petition is pending in the same court, the proceedings may be consolidated.

Required service

SECTION 6.    Section 62-5-303A(A) of the S.C. Code is amended to read:

(A) As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve:

(1) a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual and any other documents required if filing an emergency or temporary action;

(2) a copy of the summons and petition upon all co-respondents and the petitioner in any pending guardianship proceeding; and

(3) any affidavits or physician's or nurse practitioner's reports or, at the discretion of the court, the report of a physician assistant or psychologist filed with the petition.

Required examiners

SECTION 7.    Section 62-5-303B(A)(2)(b) of the S.C. Code is amended to read:

(b) one examiner, who must be a physician or nurse practitioner or, at the discretion of the court, may be a physic