www.scmuslim.comAppointing a Guardian forOnes Muslim Children: AGuide for South CarolinaMuslim ResidentsIn the Name of All...
A guardian is a court appointed individual whom has beengranted legal custody over another person with the authority tomak...
unless signed by both father and mother. Also if both parentsare living and no such deed exists, except a deed to an agenc...
what may be required of them; i.e., what the role of a guardianentails.This function is lawful under Islamic law provided ...
appointed as guardians by the parents, and court-appointedguardians. In Islamic law, guardianship falls under three mainca...
In South Carolina under the general structure ofguardianships, parents are usually classified as naturalguardians, with th...
since an instance may arise where he and the mother of hischildren have separated and the mother does not want him to have...
fittest person to take care of the children. This fact isevident from the following hadith collected by Ibn Majah thatwas ...
It is also important to note that although the Muslimmother is to be awarded custody of the children upon divorce,Islam gr...
both parents agree, or the South Carolina court in questionorders that only one of them will have day-to-day care for thei...
becomes a joint guardianship with all other guardians. However asurviving parent or guardian can dispute the appointment o...
Moreover, electing to pursue legal assistance to correct thedilemma is imperative because although a testamentary guardian...
her minor children. The first, instance is when she has beenappointed as a general executrix by the will of the childsfath...
union, or in a de facto relationship. Moreover, in instanceswhere the other parent of the children is still living, the AC...
unlimited freedom to make decisions for their children; because,the law recognizes that as a child approaches adulthood th...
will not deprive a parent of guardianship unless it is certainthat the parent in question is for some grave reason unfit t...
may, in its discretion, require a return of the property and anannual accounting for the rents, profits, and income of the...
A hearing may be held before the guardianship is terminated todetermine capacity. If death is the reason for termination t...
disability. Additional factors requiring the appointment of aconservator include mental deficiency, advanced age, chronics...
It is therefore imperative for Muslims involved in matterspertaining to a conservatorship proceeding for a minor to noteth...
It should also be noted that in order to obtain a SledReport for either of the above mentioned situations, one mustmake a ...
agency with the proposed conservator’s drivers license number,social security number and date of birth.Once a conservator ...
In view of these facts, an individual with an interest topetition to be a conservator should seek the assistance of alawye...
an attorney is always needed to represent the interest of aminor; serving a dual role as both Guardian ad Litem and Counse...
In any event, one’s guardianship automatically terminateswhen a child reaches the age of majority - sometimes 18,sometimes...
in question. Therefore, leaving a significant amount of assetsin the form of cash to a child can be an unwise choice. With...
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
Appointing a guardian for one's muslim children   a guide for south carolina muslim residents    www.scmuslim.com
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Appointing a guardian for one's muslim children a guide for south carolina muslim residents www.scmuslim.com

  1. 1. www.scmuslim.comAppointing a Guardian forOnes Muslim Children: AGuide for South CarolinaMuslim ResidentsIn the Name of Allah, Most Gracious, Most Merciful.Choosing a Guardian:A South Carolina Last Will and Testament may be used todesignate a guardian for any minor child. Testators who haveminor or dependent children may use a will to name a guardian tocare for their children if there is no surviving parent to doso. Therefore, a Muslim residing in South Carolina is permittedto appoint a guardian for their dependent children. If a willdoes not name a guardian, a court may appoint someone who is notnecessarily the ideal person whom the testator would havechosen. Thus, it is imperative for every Muslim with children ordependents to become aware of how the courts will address theiraffairs if no will exists.
  2. 2. A guardian is a court appointed individual whom has beengranted legal custody over another person with the authority tomake decision on their behalf. In addition to dependentchildren, individuals eighteen and older who suffer from eithera mental or physical illness/disability, geriatric old-age,chronic substance abuse, or simply lacks adequate comprehension,insight or competence to make responsible decisions regardingtheir personal affairs, and have not executed the proper legaldocuments to name an agent to make decisions on their behalf areamong those whom are in need of a guardian. Also, there is nolegal limit to the number of guardians that a child can have.One can be appointed for the child and another can be appointedfor the childs property; however, the number of guardiansshould be kept to a minimum.SECTION 21-21-25 of South Carolina Code of Laws,pertaining to: "Disposition of custody of minors," declares thatthe father or mother (age twenty-one and under) of any child(under age twenty-one) who is not married, may by deed executedand recorded according to law or by a valid Last Will andTestament (made and probated according to law) may dispose ofthe custody and tuition of their child while it remains underthe age of twenty-one years to any other person, in possessionor remainder. It is also important to note that no deed is valid
  3. 3. unless signed by both father and mother. Also if both parentsare living and no such deed exists, except a deed to an agencyor department of the State that is authorized by law to receiveor place the custody of children, the deed will be consideredeffective unless approved upon petition by a family court orfamily court judge of this State. In view of this fact, nothingin SECTION 21-21-25 of South Carolina Code of Laws, pertainingto: Disposition of custody of minors may be construed toabrogate, lessen, or interfere with the right and duty of acourt of competent jurisdiction at any time to transfer andassign the custody of a child for its best interest. With thisbeing said, the role of a guardian is basically to provide one’sdependents with a residence, provisions, maintenance, and anyother service pertaining to their overall well-being. Thus, in anutshell, a guardian is basically a support structure that onedepends on to take care of their loved-ones and affairs in theevent that they become incapable of performing said tasks.Therefore, an ideal guardian for a Muslim would be an immediatefamily member, an adult child, a parent or sibling. A testatorusually chooses a family member or friend to perform thisfunction, and often names an alternate; however, a Muslimtestator is restricted to only choosing from those individualsthat comply with Islamic law. Also, potential guardians shouldknow that they have been chosen, and should fully understand
  4. 4. what may be required of them; i.e., what the role of a guardianentails.This function is lawful under Islamic law provided thatboth parents are deceased or deemed unfit under the Quran andsunnah. However, one cannot take a child from a parent who is apracticing Muslim and award custody to another while said parentis still alive and capable of providing for said child. In thecase of minor children where both parents have died, custody isawarded in accordance to the Islamic maternal hierarchy; i.e.,the maternal grandmother, the paternal grandmother, the FullSister, etc. In cases of dispute, the Islamic Court will appointcustody in its wisdom. However, in South Carolina, the statewill address this matter according to its established laws andguidelines (Dept. of Social Services – Foster care, etc.)Furthermore, under Islamic law the custody of a child and achilds inheritance are often dealt with separately. A guardian(usually male) will often be appointed to take responsibilityfor the inheritance, and is entitled to reasonably dispose ofassets on account of his ward as he deems appropriate.Guardianship is governed by the CARE OF CHILDREN ACT,which replaced the GUARDIANSHIP ACT of 1968. Guardianship has anumber of different types of guardians, such as naturalguardians (the parents), testamentary guardians, new partners
  5. 5. appointed as guardians by the parents, and court-appointedguardians. In Islamic law, guardianship falls under three maincategories; namely, natural guardians, testamentary guardians,and guardians appointed by the court. However, the most commonguardianships are minor child guardianships, adult guardianshipsand emergency proxy guardianships. In South Carolina, to beginthe guardianship proceeding a Summons; one must complete aPetition for Finding of Incapacity and Appointment of Guardian(Form 530PC); pay a $150.00 filing fee; complete a Petition toAppoint a Visitor and Proposed Order; complete the Petition toAppoint Two Designated Examiners and Proposed Order (Form533PC); and complete a SLED report for the proposed Petitioner.
  6. 6. In South Carolina under the general structure ofguardianships, parents are usually classified as naturalguardians, with the mother automatically being a guardian in theeyes of the court. However, contrary to Islamic law, the fatheris not automatically a guardian. The father becomes a guardianunder South Carolina guardianship laws "only" in instances wherehe was married to, or was in a civil union with the child’smother at any time from when the child was conceived until itwas born; namely, if the child was conceived before July 1, 2005and he was living with the child’s mother when the child wasborn; the child was conceived on or after July 1, 2005 and hewas living with the child’s mother at any time betweenconception and the birth; or he was recorded as the father ofthe child on the birth certificate on or after July 1, 2005.When the father is not automatically a guardian, he canapply to the court for it to appoint him as such. The court islikely to grant the father’s request unless it deems that saidaction is against the child’s best interests. However, accordingto Islamic law, the father is always a guardian unless heapostates from Islam or is plagued by personal issues whichwould impair his ability to adequately provide for his children.Furthermore, if the father is automatically a guardian, he canask the court to officially declare him as a natural guardian
  7. 7. since an instance may arise where he and the mother of hischildren have separated and the mother does not want him to havean active role in the children’s upbringing. In the event that aparent desires that the other is prohibited from having anactive role in the child’s upbringing, an attorney should beconsulted about how to prove to the court that the other parentis unfit to raise the child in question. Nevertheless, inaddition to being a guardian, under Islamic law, the father isalways recognized as a natural guardian. The consensus in Islamis that the father is vested with the financial burden ofproviding for his wife and children. This fact is evident fromSurah Al-Nisa (4:34) which reads, "(husbands) are the protectorsand maintainers of their (wives) because Allah has given the onemore (strength) than the other, and because they support themfrom their means. Therefore, the righteous women are devoutlyobedient, and guard in (the husband’s) absence what Allah wouldhave them guard..." As a result, the father is awarded thelegal guardianship role. However, in the case of divorce, wherethe mother is a practicing Muslim, she will have more right tothe rearing of her young children than their father.In recognition of an infant’s need for female care, theconsensus is that the mother has the first choice with regard toa child’s physical custody; because, she is recognized as the
  8. 8. fittest person to take care of the children. This fact isevident from the following hadith collected by Ibn Majah thatwas narrated by Amr Ibn Shuaib: "A woman came to the Prophet(P.B.U.H.) and said: Truly my belly served as a container formy son here, and my breast served as a skin-bag for him (todrink out of) and my bosom served as a refuge for him; and nowhis father has divorced me, and he (also) desires to take himaway from me. The Prophet (P.B.U.H.) said: You have a betterright to have him, as long as you do not marry again." Withthis being said, Islam recognizes the mother as generally thefittest person to take care of the children because of theinnate love and tenderness she feels for them resulting from thebond she established during pregnancy, nursing, and childhood.As a result, even after divorce, the mother is entitled toreceive custody wages from the father to help her maintain thechildren. However, to reiterate from the above mentioned hadith,the mother forfeits this right once she remarries; i.e., theperiod of female custody ends once the child reaches a certainage of custodial transfer or when she takes another husband.Moreover, if the mother forfeits her right as primary caretakerof the children, there will be no compulsion on her to retainthis obligation; because, unless it is determined that sheforfeited this right out of duress, the decision will beaccepted as being in the best interest of the children.
  9. 9. It is also important to note that although the Muslimmother is to be awarded custody of the children upon divorce,Islam grants the Muslim father the right to have access to hischildren. The father has the right to control the education andreligion of his minor children; in addition to their upbringingand movement. Thus, so long as the father is alive, he is thesole and supreme guardian of his minor children; which is thereason why he remains financially responsible for theirmaintenance and education even though they may be under the careof their divorced mother or one of her relatives. However, thereis a difference of opinion among the Islamic schools of thoughtregarding the age when custody is shifted from the mother to thefather. Some schools suggest as young as age seven, when thechild begins learning how to make salat (ritualistic prayer -worship), at puberty, or even as late as the age of marriage, asin the case of daughters. In any event, after the determined ageof independence, the choice is up to the child as to whichparent they prefer to live with.In summary, the fathers right of guardianship extendsonly over his minor legitimate children. Moreover, he isautomatically not entitled to guardianship or to custody of hisminor illegitimate children. It is also important to rememberthat parents continue to be guardians even if they split up. If
  10. 10. both parents agree, or the South Carolina court in questionorders that only one of them will have day-to-day care for theirchildren, the other parent will continue to maintain certainresponsibilities of guardianship; namely, contributing to theirchild’s personal development and assisting them with making bigdecisions. In view of these facts, it is important for oneappointed as a guardian to be aware that their custody grantedby the courts does not terminate a parent’s relationship withtheir child like an adoption would; which is an illegal practiceaccording to Islamic law; i.e., replacing a child’s surname andreplacing it with the surname of one intending to classify thechild in question as their own via adoption. Moreover, electingto appoint a guardian generally does not categorize a parent asunfit by the courts or society. Among those individuals whom itmay be deemed necessary for them to appoint a guardian are thoseMuslims living in a non-Muslim land whom want to ensure thattheir children are raised according to the Quran and sunnah,Military parents that are deployed, a single parent, etc.Any individual selected to serve as one’s guardian is alsopermitted to appoint someone else to be a guardian after theirdemise in a will or deed. The individual whom is appointed asthe new guardian by the current guardian is referred to as a"testamentary" guardian. The position of a testamentary guardian
  11. 11. becomes a joint guardianship with all other guardians. However asurviving parent or guardian can dispute the appointment of atestamentary guardian in court if they are dissatisfied witheither the decision or the individual selected. An example ofthis would pertain to an instance wherein a Muslim guardianappoints another Muslim who is either a member of a deviant sector is deeply engaged in biddat (innovative practices notapproved by the Quran or sunnah) as a testamentary guardian; orthe testamentary guardian is one with a history of gamblingproblems, substance abuse, or deviant behavior. In this event,the Muslim parent or other guardian can refer the matter to thecourt in question in an attempt to have the unwanted guardianremoved. This point is evident from SECTION 21-21-35 of SouthCarolina Code of Laws, pertaining to: Persons against whomdisposition of custody is valid, which declares that thedisposition of the custody of the child as provided in Section21-21-25 is effective against any person claiming the custody ofthe child as guardian. SECTION 21-21-45 of South Carolina Codeof Laws, pertaining to: Action by custodian for recovery ofchildren and damages, declares that any person to whom thecustody of any child has been so disposed or devised maymaintain an action against any person who wrongfully takes awayor detains the child for the recovery of the child and mayrecover damages in the action for benefit of the child.
  12. 12. Moreover, electing to pursue legal assistance to correct thedilemma is imperative because although a testamentary guardiandoes not have the role of providing day-to-day care for thechild, they can apply to the Court for a parenting order thatwould legally grant them this right.In the event that joint guardians are unable to agree onan issue, any of the guardians in question can ask the FamilyCourt to arrange free and confidential counseling for them in aneffort to resolve the dispute. However, if counseling isineffective, the guardians can apply to a Family Court forfurther instructions. If this is the case, Family Court can makeany ruling that it deems necessary with regard to what is in thebest interest of the child. The court in question will alsogrant the child a reasonable opportunity to voice their opinionsand will take the child’s views into account. It is alsoimportant to note that under Islamic law, the father has fullpower when it comes to making a testamentary appointment ofguardian. In the absence of the father and his executor, thegrandfather has the power of appointing a testamentary guardian.With this being said, it is clear that the mother has no powerwith regard to appointing a testamentary guardian for herchildren. However, there are two cases wherein the mother ispermitted to appoint a testamentary guardian for the property of
  13. 13. her minor children. The first, instance is when she has beenappointed as a general executrix by the will of the childsfather, wherein she can appoint an executor by her will. Thesecond instance is in respect to her personal property. Themother can also be appointed a testamentary guardian by eitherthe father or grandfather whenever they are permitted toexercise this authority. Even the appointment of a non-Muslimmother as testamentary guardian is permissible.South Carolina law also permits the spouse of a personwith disabilities or parent of an incapacitated person to make atestamentary appointment of a guardian in their will. Thetestamentary appointment by a spouse or parent comes into effectafter the incapacitated person and their caregiver or thenearest adult relative has received a twenty days written noticeand the guardian files acceptance of appointment in the court.When both a spouse and a parent appoint guardians in theirwills, the appointment of the spouse has priority. Testamentaryguardianship also permits a parent with a new partner (which isan illegal relationship in Islam) who has been sharing day-to-day care of the children for at least a year, the opportunity toappoint the new partner as a guardian of the children inquestion under the Care of Children Act. The Act pertains to aparent and their new partner, whom are married, in a civil
  14. 14. union, or in a de facto relationship. Moreover, in instanceswhere the other parent of the children is still living, the ACTrequires both parents to make the appointment of the new partneras guardian. Also, in instances where the new partner inquestion cannot be appointed as a guardian due to therestrictions contained in the Care of Children Act such as caseswhere the new partner has been involved in Family Courtproceedings over day-to-day care (custody) or contact (access),or had a domestic violence protection order made against them,they are permitted to apply to the Family Court to have it makethe appointment. For more details, visit the Family Courtwebsite at www.justice.govt.nz/family.A child age sixteen or older in the state of SouthCarolina can ask the Family Court to intervene and give itspermission, which would overrule the guardian’s decision ininstances where they disagree or is unhappy about an importantdecision that their guardian or guardians have made; such asdenying them the opportunity to get married. However, toreiterate, children ages 16 or 17 must obtain written permissionfrom their guardian before they can get married or enter into acivil union or de facto relationship; which are illegalrelationships in Islam. It is important to note that in SouthCarolina a parent’s guardianship status does not grant them
  15. 15. unlimited freedom to make decisions for their children; because,the law recognizes that as a child approaches adulthood theirmaturity and level of understanding entitles them to makedecisions for themselves regarding particular issues. As aresult, the child in question can ask the Family Court to giveits permission, which could then overrule the guardian’sdecision. However, in certain instances the Family Court’sruling in favor of the child can do the child in question agreat disservice; such as overruling a Muslim guardian’sdecision to deny the child in question the right to engage indating or to marry someone that is not acceptable under Islamiclaw. In this instance, the Family Court’s ruling in favor of thechild could result in the child in question committingfornication or contracting an illegal marriage.A South Carolina Family Court can also deprive a parent ofguardianship or remove a testamentary or court-appointedguardian whenever a parent/guardian of a child, a partner of aparent of a child (whether they are married, in a civil union,or in a de facto relationship, as long as they have been sharingday-to-day care of the child; a child’s grandparent, aunt,uncle, brother or sister, including half-brothers and half-sisters, have applied to the court for it to perform thisaction. However, it should be noted that the court in question
  16. 16. will not deprive a parent of guardianship unless it is certainthat the parent in question is for some grave reason unfit to bethe guardian or that they are simply unwilling to be a guardian.With regard to deciding whether to remove a testamentaryor court-appointed guardian, the only issue for the court is thechild’s welfare and best interests. Therefore, if one wishes toapply to the court to be appointed as a guardian, or if anapplication has been made to the court to deprive one ofguardianship, it is imperative that they obtain legal adviceregarding these matters. It is also important for one pursuingguardianship to become familiar with SECTION 21-21-55 of SouthCarolina Code of Laws, pertaining to: Possession of propertyconveyed, devised, or bequeathed to child, which maintains thatany person to whom the custody of any child has been so disposedor devised may take into their possession to and for the use,support, and education of the child all property, real andpersonal, which by deed or will has been conveyed, devised, orbequeathed to the child, until said child attains the age oftwenty-one years or for a lesser time as may be fixed by thedeed or will, and may receive and receipt for the proceeds ofany life insurance taken out by the parent for the benefit ofthe child and do all acts in relation to the child which aguardian appointed according to law might do. The family court
  17. 17. may, in its discretion, require a return of the property and anannual accounting for the rents, profits, and income of theproperty.It is also important to note that a Muslim residing inSouth Carolina with the objective of leaving bequest for theirchildren is permitted to appoint a guardian under the UniformTransfers to Minors Act. One can utilize the Uniform Transfersto Minors Act to addresses property management so that theprobate court does not need to appoint someone to addressmatters on their behalf. What is more, guardianships for minorsare not under the authority of the Probate Court; rather, underthe jurisdiction of the Family Court. However, in order toavoid the Probate Court appointing a guardian for one’s adultdependents, one should execute the proper legal documents, suchas a will, Health Care Power of Attorney, and/or a Durable Powerof Attorney. The choice of guardianship often affects other willprovisions; because, the testator may want to provide financialsupport to the guardian in raising surviving children.Nevertheless, if the capacity of the adult changes or theincapacitated person in question passes away, the guardian inquestion should file a final guardian report and Petition forDischarge (Form 571PC).
  18. 18. A hearing may be held before the guardianship is terminated todetermine capacity. If death is the reason for termination thena death certificate should be provided.To reiterate, an ideal guardian for a Muslim would be animmediate family member, such as an adult child, a parent, orsibling, etc. However, if there are no immediate family membersthen the Court will look to other relatives or interestedindividuals, such as a neighbor or close friend. What is more,under certain circumstances, the Court may even look into thepossibility of appointing an institutional conservator; which isa court appointed individual or entity that handles themanagement of financial affairs or property. However, in view ofthese facts, it is important to note that a Muslim residing inSouth Carolina must exhaust every effort to appoint onlyindividuals that the dependent in question is permitted tosocialize with in an un-chaperoned environment; such as thoseindividuals whom it is illegal to contract a marriage with.Conservatorships in South Carolina fall under two maincategories; namely, those involving minors receiving fundsexceeding $10,000 from an inheritance; insurance proceeds, otherbeneficiary designated funds, personal injury settlements orsale of real estate, and those involving individuals over theage of eighteen that suffer from a mental/physical illness or
  19. 19. disability. Additional factors requiring the appointment of aconservator include mental deficiency, advanced age, chronicsubstance abuse, or any other cause to the extent that anindividual lacks sufficient understanding, insight, or capacityto make responsible decisions concerning their financialaffairs. It is also important to note that all of these factorsare in the event that the proper legal documents have not beenexecuted, such as a Durable Power of Attorney naming an agentfor decision-making. With this being said, just as the matterpertains to guardians, an immediate family member, such asspouse, adult child, parent or adult sibling, would be an idealconservator. Also, as guardianships are handled in instanceswhere there are no immediate family members, the Courtaddressing the issue of conservatorship will look to otherrelatives or interested individuals, such as a neighbor orfriend of the incapacitated adult or minor. Nevertheless, toreiterate, it is important for every Muslim to remember that onemust exhaust every effort to appoint only individuals that one’sdependents are permitted to socialize with in an un-chaperonedmanner. Lastly, the need for financial or legal expertise maylead the Court in question to look for corporate entities,accountants or lawyers to serve in this capacity.
  20. 20. It is therefore imperative for Muslims involved in matterspertaining to a conservatorship proceeding for a minor to notethat due to a recent South Carolina policy change, the Court inquestion will appoint a Guardian Ad Litem for all incomingcases. In addition, a Summons, Petition for Appointment ofConservator (Form 540PC), a $150.00 filing fee, a ProposedGuardian ad Litem/Counsel Order [minors 14 and older mustconsent to the proposed counsel] (Form 532PC), a certified copyof the birth certificate for the minor, a SLED report, a creditreport for the proposed Petitioner, a copy of the proposedconservators drivers license, and a copy of the proposedconservators social security card are required by the Courts forconservatorship proceeding for a minor. Furthermore, to begin aConservatorship proceeding for an adult, the Court requires aSummons; Petition for Appointment of Conservator (Form 540PC);$150.00 filing fee; Petition to Appoint Two Designated Examinersand Proposed Order (Form 533PC); Proposed Guardian adLitem/Counsel Order (Form 532PC); SLED report and Credit reportfor the proposed Petitioner, a copy of the proposed conservatorsdriver’s license, and a copy of the proposed conservators socialsecurity card.
  21. 21. It should also be noted that in order to obtain a SledReport for either of the above mentioned situations, one mustmake a written request for the criminal report from SLED at P.O.Box 21398 Columbia, SC 29221-1398. One is also required toprovide SLED with the Proposed Guardian’s full name includingmaiden and alias names; date of birth, sex, race, and socialsecurity number. Moreover, a $25.00 business check, certifiedcheck, money order, or cashiers check, and a self addressedenvelope must be included for each search. One also has theoption to pay for each search with their credit card and make aninternet request at www.sled.state.sc.us.A credit report on the other hand can be obtained byfilling out the credit history report written request atEquifax, P.O. Box 105252 Atlanta, GA 30348-5252, or by calling1-800-685-1111. Equifax’s emergency fax request line can also beaccessed by dialing (770) 375-3150. Equifax also offers theoption to contact them via the internet at www.equifax.com.A second credit reporting organization is TransUnion,which can be contacted by written request at P.O. Box 1000Chester, PA 19022, or by calling them direct at 1-800-888-4213.TransUnion can also be contacted via the internet atwww.transunion.com. TransUnion requires one to provide their
  22. 22. agency with the proposed conservator’s drivers license number,social security number and date of birth.Once a conservator is appointed, within thirty days theyare required to file an Inventory and Appraisement (Form 550PC).The conservator in question is also required to annually report(Form 560PC) to the Court, along with the income, approveddisbursements, account statements, and receipts of expenditures.The Court in question is required to approve expenditures fromthe restricted accounts once the conservator has filed theappropriate Petitions for Expenditures along with supportingdocumentation. The conservator in question should also informthe Court as to the whereabouts of the incapacitatedadult/minor, and the Court has the authority to appoint visitorsand guardian ad litems to check on the incapacitated adult orminor.These actions are methods the Court exercises to makecertain that the conservator in question is performance in thebest interest of the protected person. Lastly, Letters ofconservatorship and orders terminating conservatorship, must befiled and recorded in the office where conveyance of real estateare recorded for the county in which the protected personresides and or owns real estate.
  23. 23. In view of these facts, an individual with an interest topetition to be a conservator should seek the assistance of alawyer; because, due to the legal complexities of the Summonsand Petition, the requirements of proper legal service on allinterested parties including proper service on the allegedincapacitated adult, and the need for proper notice of thehearing to all interested parties, the Court in questionrecommends that the proposed Petitioner have an attorney. TheState law specifies the venue; i.e., where the proceedings areto take place. The venue for conservatorship proceedings will bein the county where the incapacitated person resides. Even ifthe person is or is not a South Carolina resident the venue canbe in any county where the person in question owns property. Whatis more, an attorney is needed because they are appointed as theGuardian Ad Litem and is involved in the intricate details ofthe proceeding. Moreover, due to a recent policy change, theCourt in question now selects the Guardian ad Litem for allincoming cases from a rotating list of attorneys in goodstanding with the South Carolina Bar that are willing to servein this capacity. Also, due to the intricate nature of theproceedings and the allegations that the adult in question isincapacitated and cannot handle their financial affairs, theProbate Court deems it necessary to appoint an attorney for thealleged incapacitated adult. It is also important to note that
  24. 24. an attorney is always needed to represent the interest of aminor; serving a dual role as both Guardian ad Litem and Counselfor the incapacitated adult and minor. The attorney in questionis also required to investigate the need for the conservatorshipas well as the proposed conservators ability to adequatelyserve the best interest of the incapacitated person.A surety bond, which is similar to an insurance policy forthe minor or incapacitated person in question, conditioned onthe conservator carrying out their duties faithfully andappropriately, is required for the appointment of a conservator.A surety bond is almost always required for adults with ongoingmonthly expenditures. Thus, to alleviate the annual expense ofthe surety bond, a South Carolina Probate Court often allows theconservator to open a restricted brokerage account. As a result,the financial institution that accepts the conservatorship fundsin a restricted account is required to execute a RestrictedAccount Agreement with the Court in question. The RestrictedAccount Agreement states that funds will not be disbursed andassets will not be sold without an Order from the Court inquestion. Both the Conservator and the financial institution areobligated to agree to the terms set forth in the RestrictedAccount Agreement.
  25. 25. In any event, one’s guardianship automatically terminateswhen a child reaches the age of majority - sometimes 18,sometimes 21; marries, or enters into a civil union or de factorelationship. Whereas one’s conservatorship status terminatesonce the minor in question reaches majority, when the capacityof the adult in question changes, or upon the death of theincapacitated person. In any of these cases the conservator isexpected to file a final accounting and Petition for Discharge(Form 571PC). Also, when death is the reason for terminatingone’s conservatorship status, then a death certificate should beprovided along with proof that a Personal Representative hasbeen appointed. The Court will then issue an Order for thetransfer of assets to either the minor that has reachedmajority, to the individual that is no longer incapacitated, orto the Personal Representative of the decedents estate.Moreover, a Receipt and Release shall be filed within ten (10)days of the release of assets. Also, a hearing may be heldbefore the assets of the estate are distributed. Lastly, lettersof conservatorship, and orders terminating conservatorshipsshall be filed and recorded in the office where conveyances ofreal estate are recorded for the county in which the protectedperson resides and in the other counties where the protectedperson owns real estate. Nevertheless, from then on, any propertyleft to a child is exclusively owned and controlled by the child
  26. 26. in question. Therefore, leaving a significant amount of assetsin the form of cash to a child can be an unwise choice. Withthis being said one should consult an attorney and determine ifit would be advantageous to appoint a guardian over theirchilds property or would creating a trust be in the child’sbest interest.

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