New South Carolina law requires separate counsel in guardianship proceedings

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05/16/2017, Legislation, Guardianship/Conservatorship of Adults - Protected Person

Originally, S.C. Code Ann. § 62-5-303(b) required that the court appoint an attorney to serve as guardian ad litem, but in 2017 the legislature renumbered and amended the statute as S.C. Code Ann. § 62-5-303B(A), which states, “Upon receipt by the court of proof of service of the summons, petition, and notice of right to counsel upon the alleged incapacitated individual, the court shall: (1) upon the expiration of fifteen days from filing the proof of service on the alleged incapacitated individual, if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual, appoint counsel; (2) no later than thirty days from the filing of the proof of service on the alleged incapacitated individual, appoint: (a) a guardian ad litem for the alleged incapacitated individual who shall have the duties and responsibilities set forth in Section 62-5-106 ...”  S.C. Code Ann. § 62-5-303B(B) adds that the court may appoint counsel for a non-attorney guardian ad litem upon request. 


For reviews of the guardianship, S.C. Code Ann. § 62-5-307A(B) specifies that “After filing and service of the summons and petition, the court may appoint a guardian ad litem and may appoint counsel for the ward, unless the ward has private counsel...”  


There is also a right to counsel in conservatorship proceedings.  S.C. Code Ann. § 62-5-403A(C) (“The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received a notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of the proof of service, the court will appoint counsel. In appointing counsel, the court may consider the expressed preferences of the alleged incapacitated individual.”)

Appointment of Counsel: categorical Qualified: no