South Carolina Code 62-5-405. Protective arrangements
(1) without appointing a conservator, authorize, direct, or ratify any provision within a protective arrangement that is in the best interest of the minor or incapacitated individual. A protective arrangement includes, but is not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; or the addition to or establishment of a suitable trust.
Terms Used In South Carolina Code 62-5-405
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Contract: A legal written agreement that becomes binding when signed.
- Dependent: A person dependent for support upon another.
- Inter vivos: Transfer of property from one living person to another living person.
- Intestate: Dying without leaving a will.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
- Testate: To die leaving a will.
(2) authorize a conservator or a special conservator to exercise the power to perform the following acts:
(a) make gifts as the court, in its discretion, believes would be made by the protected person;
(b) convey or release the protected person’s contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;
(c) create or amend revocable trusts or create irrevocable trusts of property of the protected person’s estate that may extend beyond the protected person’s disability or life, including the creation or funding of a special needs trust or a pooled fund trust for disabled individuals;
(d) fund trusts;
(e) exercise the protected person’s right to elect options and change beneficiaries under insurance and annuity policies and to surrender policies for their cash value;
(f) exercise the protected person’s right to an elective share in the estate of a deceased spouse;
(g) renounce any interest by testate or intestate succession or by inter vivos transfer;
(h) ratify any such actions taken on behalf of the protected person.
(B) When acting as conservator or when approving a conservator’s or special conservator’s action, the court may consider the:
(1) wishes of the protected person;
(2) financial needs and legal obligations of the protected person and those who are dependent upon him for support;
(3) tax consequences;
(4) protected person’s eligibility or potential eligibility for governmental assistance;
(5) protected person’s previous pattern of giving or level of support;
(6) protected person’s gifting and estate plan; and
(7) protected person’s life expectancy and the probable duration of incapacity.
(C) Prior to issuing a protective order, the court shall consider whether appointment of a conservator is necessary. The court shall set forth specific findings upon which the court bases its order authorizing a protective arrangement. For purposes of issuing a consent order, counsel may consent on behalf of the protected person.
(D) The petitioner shall serve all heirs and devisees of the incapacitated individual whose identity and whereabouts are reasonably ascertainable with the petition seeking a protective order to perform one or more actions set forth in subsection (A)(2).