What Happens if You Become Incapacitated Without Powers of Attorney in Greenville, SC?

It is a deeply unsettling thought: a sudden accident on I-85 or a progressive illness that, in either case, leaves you unable to communicate your wishes or manage your own affairs. If you became incapacitated tomorrow, who would pay your mortgage, manage your investments, or make vital medical decisions on your behalf? Most people assume a spouse or adult child can simply step in. The hard reality in South Carolina is that they cannot.

Without proper legal planning, your family would be forced into a public, expensive, and stressful court proceeding in Greenville County.

What Does “Incapacitated” Mean Under South Carolina Law?

First, it is important to define the term. Legal incapacity is different from a simple medical diagnosis. Under South Carolina law, a person is considered incapacitated if a judge determines they lack the ability to effectively receive and evaluate information or make or communicate decisions to such an extent that they lack the ability to manage their own health, safety, or financial resources.

This can happen in two primary ways:

• A sudden event, such as a severe car accident, a stroke, or a traumatic brain injury.
• A progressive condition, such as Alzheimer’s disease, dementia, or another illness that gradually diminishes cognitive function.

In either scenario, if you have no legal documents in place, a costly and public process begins.

The Default for Incapacity: Greenville County Probate Court

If you become incapacitated without proper legal planning, your family will face significant hurdles and have no automatic authority to manage your affairs. This lack of legal standing means your spouse, children, or other trusted loved ones cannot step in to handle essential tasks. For instance, your spouse would be unable to sell your jointly owned home, access your bank accounts to pay bills, or manage your investments. Similarly, your child would be blocked from accessing your IRA or other retirement funds to cover the high costs of your long-term care or medical needs.

To gain this necessary authority, your family will be forced to petition the Greenville County Probate Court. This legal action is required to have you legally declared incompetent, a deeply personal and often stressful public proceeding, and to have a fiduciary appointed by the court to manage your affairs.

This process is far from a simple or friendly formality. It is, in fact, an adversarial lawsuit that forces your family through two separate and complex legal proceedings:

• A Conservatorship for the management of all your financial affairs, assets, and property. The appointed Conservator must report to the court regularly, detailing every transaction.
• A Guardianship for making all your personal and medical decisions, including where you will live and what medical treatment you will receive. The appointed Guardian must also seek court approval for many critical decisions.

This involuntary court process is the very antithesis of the privacy, dignity, and personal control that most people desire for their lives and their estate planning wishes. It is costly, time-consuming, and puts sensitive family matters on public record.

Who Manages Your Finances? The Conservatorship Process

If you have no Durable Power of Attorney for finances, the court must appoint a Conservator. This is a person or entity given legal authority to manage your assets, property, and finances.

The process in Greenville County generally follows these steps:

• Filing a Petition: A family member, friend, or interested party must hire an attorney to file a formal petition with the Greenville County Probate Court. This petition asks the court to find you incapacitated and appoint a conservator.
• Appointing Attorneys: The court will appoint an attorney to represent you (the “alleged incapacitated person”). The person filing the petition (the “petitioner”) will also have their own attorney.
• Medical Examination: The court requires a report from a physician who has examined you to provide a medical opinion on your condition and ability to manage your affairs.
• Formal Hearing: A hearing is scheduled where the petitioner must present evidence (including the doctor’s report and other testimony) to prove you are incapacitated. You have the right to be present and to have your attorney contest the proceeding.
• Court Order: If the judge agrees, they will issue an order declaring you legally incapacitated and appointing a conservator. The judge may appoint the person who petitioned, another family member, or a neutral third-party attorney if there is family conflict.
• Ongoing Court Supervision: The appointed conservator is strictly supervised by the court. They must post a bond (an insurance policy) and file a detailed inventory of all your assets. They must then file a formal accounting with the court every year, detailing every single dollar earned and spent.

This process is a significant burden, and it is all paid for by your assets.

Who Makes Your Medical Decisions? The Guardianship Process

Similarly, if you have no Health Care Power of Attorney, the court must appoint a Guardian. This person is given authority over your personal well-being, including all healthcare and living arrangement decisions.

While South Carolina’s Adult Health Care Consent Act does provide a default list of surrogates (starting with a spouse), it is limited. It does not give that person the broad authority a health care agent has, and it often leads to conflict if family members disagree. For major decisions, or if there is any dispute, a formal guardianship is required.

The process is nearly identical to the conservatorship: a petition is filed, attorneys are appointed, a hearing is held, and a judge, not you, makes the final decision on who will be in charge of your most personal life choices.

What Are the Major Disadvantages of This Court Process?

Relying on the court system to manage your incapacity has profound and negative consequences that can impact your family for years.

• It is a Public Record: This is a shock to many families. The entire proceeding, including the petition detailing your medical condition and the inventory listing all your assets and their values, becomes a public record at the Greenville County Courthouse. Anyone can go and look it up.
• It is Expensive: A court proceeding is never free. Your estate must pay for the petitioner’s attorney, the attorney appointed to represent you, all court filing fees, and the annual bond premiums for the conservator. These costs can drain thousands of dollars from the funds your family needs for your care.
• It is Slow and Restrictive: The conservator does not have the freedom to act quickly. For many significant financial decisions, such as selling your home to pay for nursing home care, the conservator must first get the court’s permission. This is slow, frustrating, and adds even more legal fees.
• You Lose All Control: The person the judge appoints may not be the person you would have ever chosen. If your children disagree about your care, the judge may be forced to appoint a professional guardian or a local attorney, who will be paid an hourly rate from your assets to manage your life.
• It Creates Family Conflict: When there are no clear instructions from you, family disagreements are common. Children may fight over who should be in charge or what type of medical care you should receive. This stress can permanently damage family relationships, all while they are trying to cope with your medical condition.

How Proactive Planning Avoids This Crisis

The entire court-supervised guardianship and conservatorship process is entirely avoidable. A comprehensive incapacity plan, created with an experienced attorney, ensures your wishes are followed privately, quickly, and affordably.

The two most important documents for this are Powers of Attorney.

The Durable Power of Attorney (Financial)

This is a legal document where you (the “principal”) name a person you trust (the “agent”) to manage your financial affairs. The key is the word “durable.” This means the document remains effective after you become incapacitated.

With a durable POA, your agent can immediately and privately:

• Access your bank accounts
• Pay your mortgage, utilities, and medical bills
• Manage your investments
• File your tax returns
• Handle your real estate
• Apply for benefits like Medicaid or Veterans Aid

This document completely eliminates the need for a conservatorship.

The Health Care Power of Attorney

This document allows you to name a trusted person as your “health care agent” to make medical decisions for you if you cannot make them yourself.

Your health care agent can:

• Speak with your doctors
• Access your medical records
• Consent to or refuse medical treatments, tests, and surgeries
• Make decisions about which doctors or facilities to use
• Admit you to a hospital or long-term care facility

This document eliminates the need for a guardianship and ensures the person you trust most is guiding your care.

What Other Documents Complete an Incapacity Plan?

A thorough plan often includes more than just the two POAs. These documents work together to provide complete protection.

• Living Will (Advance Directive): This document states your wishes regarding end-of-life medical care, specifically concerning the use of life-sustaining treatment if you are in a terminal or permanently unconscious state. This guides your health care agent and lifts a heavy burden from their shoulders.
• HIPAA Authorization: This is a standalone document that gives your agents (and any other people you name, like family members) the legal right to access your medical information. Without it, privacy laws can prevent doctors from even speaking to your loved ones.
• Revocable Living Trust: While often thought of as a tool to avoid probate after death, a living trust is also a powerful incapacity planning tool. You transfer your assets into the trust and name a “successor trustee.” If you become incapacitated, that person immediately takes over management of the trust assets without any court involvement. This provides the most seamless and private transition of financial management.

Common Questions About Incapacity Planning in Greenville

We often hear the same questions from clients in our Greenville office. Here are clear answers to the most common concerns.

What is the difference between a guardian and a conservator?
A guardian is appointed to manage your person (health and well-being). A conservator is appointed to manage your property (finances and assets). In a court proceeding, a judge may appoint the same person for both roles or two different people.

Can my spouse just make all the decisions for me without a POA?
No. Your spouse has some limited authority but cannot access your individual retirement accounts, sell real estate titled in your name alone, or manage your individual investment accounts. A durable power of attorney is necessary to grant this broad authority.

Does my Last Will and Testament help if I am incapacitated?
No. A will has absolutely no legal effect until after you have passed away. It does nothing to manage your affairs during your lifetime.

What happens if my family members disagree on who should be in charge?
This is precisely where the probate court becomes a battleground. If your children file competing petitions for guardianship, the judge must hold a trial to determine who would be the most suitable. This is a public, expensive, and emotionally devastating fight that you can prevent by naming your choice in a power of attorney.

Secure Your Future with a Proactive Plan

Thinking about incapacity is difficult, but failing to plan for it forces your family into a legal crisis during an already emotional time. The choice is stark: either you make these decisions now, or a probate judge in Greenville will make them for you later. A comprehensive plan including a Durable Power of Attorney, Health Care Power of Attorney, and Living Will is the only way to ensure your wishes are followed, your assets are protected, and your family is spared the burden of a public court battle.

At the DeBruin Law Firm, we are dedicated to helping families across Greenville and South Carolina navigate these important decisions. We can assist you in drafting clear, effective, and legally sound incapacity documents that reflect your unique family goals. To build a plan that provides true peace of mind, please contact us at (864) 982-5930 or send a message online to schedule a consultation.