South Carolina

Guardianship Laws

Adult Guardianship Statute: 
Right to Counsel in Statute: Initial Guardianship Proceedings: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Not stated
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

"...the court shall set a date for hearing on the issue of incapacity and unless the allegedly incapacitated person has counsel of hir own choice, it shall appoint an attorney to represent him in the proceedings and that attorney shall have the powers and duties of a guardian ad litem." S.C. Code Ann. § 62-5-303(b).

Advocacy Role of Counsel Defined in Statute: 
Advocacy Role of Counsel Definition in Statute: 

In an initial guardianship appointment proceeding the attorney "shall have the powers and duties of a guardian ad litem." S.C. Stat. Ann. §§ 62-5-303(b).

Professional Rules &/or Ethics Opinions: 

SCRPC-Rule 1.14: "(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian."

Other Case Law: 

Absent statutory authorization, a guardian cannot maintain an action on behalf of a person with mentally incompetence for the dissolution of that person's marriage. See Murrary v. Murray, 310 S.C. 336 (1993).

Other Important Info: 

"Whenever a minor or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. If a minor or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such order as it deems proper for the protection of the minor or incompetent person." SCRCP Rule 17. See also S.C. Code Ann. § 625-312.

Discuss Guardianship or Supported Decision-Making?: