Right to counsel

If the department is unable to obtain the consent of an adult to provide the adult with protective services, it may seek court authorization to provide the services involuntarily, including on an emergency or ex parte basis. See S.C. Stat. § 43-5-45(B).  The court must appoint counsel within 10 days.  Specifically, the section states:

Within ten days following the filing of a petition pursuant to this section, the court shall appoint a guardian ad litem and an attorney for the vulnerable adult and an attorney for a lay guardian ad litem. A party may move to have the guardian ad litem relieved of his or her services if the party demonstrates that the vulnerable adult has the capacity to assist counsel in the protective services case. Within forty days of the filing of a petition, the court shall hold a hearing on the merits.

S.C. Stat. § 43-35-45(C).  

However, law enforcement may take an adult into protective custody—even absent a court order or consent by the adult or their caregiver—if “there is probable cause to believe that by reason of abuse, neglect, or exploitation there exists an imminent danger to the vulnerable adult’s life or physical safety” and “there is not time to apply for a court order.” S.C. Stat. § 43-35-55(A).

Upon taking the adult into protective custody, “the law enforcement officer must immediately notify the Adult Protective Services Program and the Department of Social Services in the county where the vulnerable adult was situated…” S.C. Stat. § 43-35-55(D).  The Department must then file a petiton for protective custody within one business day of being notified, and the family court is to hold a probable cause hearing within 72 business hours of the petition being filed. Id. at (F).  If probable cause is found, the Adult Protective Services Program may initiate or cause to be initiated a petition for services pursuant to Section 43-35-45, which would likely trigger the appointment of counsel within 10 days, as discussed above. Id. at (G).

Because the right to counsel does not seemingly attach immediately upon the initiation of protective custody or other actions taken in an emergency, the right to counsel is classified as “qualified.”