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H. 3635
STATUS INFORMATION
General Bill
Sponsors: Rep. F.N. Smith
Document Path: l:\council\bills\ggs\22770mm07.doc
Introduced in the House on March 6, 2007
Currently residing in the House Committee on Judiciary
Summary: Family court jurisdiction
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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3/6/2007 House Introduced and read first time HJ-5
3/6/2007 House Referred to Committee on Judiciary HJ-6
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTIONS 62-5-102, AS AMENDED, 62-5-201, 62-5-401, 62-5-402, AS AMENDED, 62-5-410, AS AMENDED, 62-5-411, AS AMENDED, 62-5-413, 62-5-419, 62-5-422, 62-5-426, 62-5-430, AND 62-5-433, AS AMENDED, ALL RELATING TO JURISDICTION OVER AND PROCEEDINGS IN CONNECTION WITH PERSONS IN NEED OF PROTECTION BECAUSE OF MINORITY OR SOME OTHER INCAPACITY, SO AS TO GIVE THE FAMILY COURT CONCURRENT JURISDICTION WITH THE PROBATE COURT OVER PROTECTIVE PROCEEDINGS INVOLVING MINORS AND PROTECTIVE PROCEEDINGS INVOLVING PERSONS WITH OTHER INCAPACITIES IF THE INCAPACITATED PERSON IS ALREADY BEFORE THE FAMILY COURT IN A PENDING MATTER AND TO ALLOW A PARENT OR GRANDPARENT TO SERVE AS A CONSERVATOR WITHOUT BOND; AND TO AMEND SECTION 20-7-420, AS AMENDED, RELATING TO JURISDICTION OF THE FAMILY COURT, SO AS TO PROVIDE FOR ITS CONCURRENT JURISDICTION WITH THE PROBATE COURT OVER PROTECTIVE PROCEEDINGS INVOLVING MINORS AND PROTECTIVE PROCEEDINGS INVOLVING PERSONS WITH OTHER INCAPACITIES IF THE INCAPACITATED PERSON IS ALREADY BEFORE THE FAMILY COURT IN A PENDING MATTER.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 62-5-102 of the 1976 Code, as last amended by Act 659 of 1988, is further amended to read:
"Section 62-5-102. (a) The probate court has jurisdiction over protective proceedings and guardianship proceedings and protective proceedings concerning incapacitated persons.
(b) The probate court has concurrent jurisdiction with the family court over protective proceedings in connection with:
(i) incapacitated persons who are already before the family court in pending matters; and
(ii) minors.
(c) When both guardianship and protective proceedings as to the same person are commenced or pending in the same probate court, the proceedings may be consolidated."
SECTION 2. Section 62-5-201 of the 1976 Code, as added by Act 171 of 1987, is amended to read:
"Section 62-5-201. The family courts of this State have jurisdiction over the care, custody, and control of the persons of minors, including concurrent jurisdiction with the probate court over protective proceedings in connection with minors."
SECTION 3. Section 62-5-401 of the 1976 Code is amended to read:
"Section 62-5-401. Upon petition and after notice and hearing in accordance with the provisions of this part, the probate court or family court may appoint a conservator or make other protective order for cause as follows:
(1) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor:
(i) owns money or property that requires management or protection which that cannot otherwise be provided,;
(ii) has or may have business affairs which that may be jeopardized or prevented by his minority,; or that funds are needed (iii) needs funds for his support and education and that protection is necessary or desirable to obtain or provide funds.
(2) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that the person;
(i) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and
(ii) the person has property which that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds; except that the family court may not appoint a conservator or make another protective order pursuant to this item (2) unless the person is already before the family court in a pending matter."
SECTION 4. Section 62-5-402 of the 1976 Code, as last amended by Act 659 of 1988, is further amended to read:
"Section 62-5-402. After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the probate court or family court in which the petition is filed has:
(1) exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;
(2) exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this State must be managed, expended, or distributed to or for the use of the protected person or any of his dependents; and
(3) concurrent jurisdiction to determine the validity of claims for or against the person or estate of the protected person except as limited by Section 62-5-433."
SECTION 5. Section 62-5-410 of the 1976 Code, as last amended by Act 15 of 1995, is further amended to read:
"Section 62-5-410. (a) The probate court or family court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:
(1) a conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
(2) an individual or corporation nominated by the protected person if he is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(3) an attorney in fact appointed by such protected person pursuant to Section 62-5-501;
(4) the spouse of the protected person;
(5) an adult child of the protected person;
(6) a parent or grandparent of the protected person, or a person nominated by the will of a deceased parent;
(7) any other relative of the protected person;
(8) a person nominated by the person who is caring for him or paying benefits to him.
(b) A person in priorities (1), (4), (5), (6), or (7) may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the probate court or family court is to select the one who is best qualified of those willing to serve. The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority.
(c) A probate judge or a family court or an employee of the probate court shall or family court may not serve as a conservator of an estate of a protected person; however, a probate judge or a family court judge or an employee of the probate court or family court may serve as a conservator of the estate of a family member if such the service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild."
SECTION 6. Section 62-5-411 of the 1976 Code, as last amended by Act 659 of 1988, is further amended to read:
"Section 62-5-411. The appointing court shall, unless for good cause stated, require a conservator, other than a parent or grandparent, to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law and will approve all sureties. If bond is required, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the protected person and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in Section 62-6-101, in a manner that prevents their unauthorized disposition. On petition of the conservator or another interested person, the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, or permit the substitution of another bond with the same or different sureties."
SECTION 7. Section 62-5-413 of the 1976 Code is amended to read:
"Section 62-5-413. By accepting appointment, a conservator submits personally to the jurisdiction of the appointing court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the appointing court and to his address as then known to the petitioner."
SECTION 8. Section 62-5-419 of the 1976 Code is amended to read:
"Section 62-5-419. Every conservator must account to the appointing court for his administration of the trust annually and upon his resignation or removal, and at other times as the court may direct. On termination of the protected person's minority or disability a conservator shall account to the appointing court. Subject to appeal within the same time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to his liabilities concerning the matters shown in connection therewith and an order, made upon notice and hearing, allowing a final account adjudicates as to all unsettled liabilities of the conservator to the protected person or his successors relating to the conservatorship concerning the matters shown. In connection with any account, the appointing court may require a conservator to submit to a physical check of the estate in his control, to be made in any manner the court may specify."
SECTION 9. Section 62-5-422 of the 1976 Code is amended to read:
"Section 62-5-422. Any sale or encumbrance to a conservator, his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is void unless the transaction is approved by the appointing court after notice to interested persons and others as directed by the court."
SECTION 10. Section 62-5-426 of the 1976 Code is amended to read:
"Section 62-5-426. The appointing court may, at the time of appointment or later, may limit the powers of a conservator otherwise conferred by Sections 62-5-424 and 62-5-425, or previously conferred by the court, and may at any time relieve him of any limitation. If the appointing court limits any power conferred on the conservator by Section 62-5-424 or Section 62-5-425, the limitation shall must be endorsed upon his letters of appointment and upon any certificate evidencing his appointment."
SECTION 11. Section 62-5-430 of the 1976 Code is amended to read:
"Section 62-5-430. The protected person, his personal representative, the conservator, or any other interested person may petition the appointing court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The appointing court, upon determining after notice and hearing that the minority or disability of the protected person has ceased, may terminate the conservatorship."
SECTION 12. Section 62-5-433 of the 1976 Code, as last amended by Act 398 of 2000, is further amended to read:
"Section 62-5-433. (A)(1) For purposes of this section and for any claim exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated person, 'court' means the circuit court of the county in which the minor or incapacitated person resides or the circuit court in the county in which the suit is pending. For purposes of this section and for any claim not exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated person, 'court' means either the circuit court or, the probate court or the family court of the county in which the minor or incapacitated person resides or the circuit court or, probate court, or the family court in the county in which the suit is pending.
(2) 'Claim' means the net or actual amount accruing to or paid by the minor or incapacitated person as a result of the settlement.
(3) 'Petitioner' means either a conservator appointed by the probate court or family court for the minor or incapacitated person or the guardian or guardian ad litem of the minor or incapacitated person if a conservator has not been appointed.
(B) The settlement of any claim over twenty-five thousand dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property must be effected on his behalf in the following manner:
(1) The petitioner must file with the court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed twenty-five thousand dollars, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated person.
(2) If, upon consideration of the petition and after hearing the testimony as it may require concerning the matter, the court concludes that the proposed settlement is proper and in the best interests of the minor or incapacitated person, the court shall issue its order approving the settlement and authorizing the petitioner to consummate it and, if the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, to receive the money or personal property and execute a proper receipt and release or covenant not to sue therefore on the claim, which is binding upon the minor or incapacitated person.
(3) The order authorizing the settlement must require that payment or delivery of the money or personal property be made through the conservator. If a conservator has not been appointed, the petitioner shall, upon receiving the money or personal property, pay and deliver it to the court pending the appointment and qualification of a duly appointed conservator. If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.
(C) The settlement of any claim that does not exceed twenty-five thousand dollars in favor of or against a minor or incapacitated person for the payment of money or the possession of personal property may be effected in any of the following manners:
(1) If a conservator has been appointed, he may settle the claim without court authorization or confirmation, as provided in Section 62-5-424, or he may petition the appointing court for approval, as provided in items (1), (2), and (3) of subsection (B). If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the conservator shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefore on the claim, which is binding upon the minor or incapacitated person.
(2) If a conservator has not been appointed, the guardian or guardian ad litem must petition the court for approval of the settlement, as provided in items (1) and (2) of subsection (B), and without the appointment of a conservator. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103. If a party subject to the court order fails or refuses to pay the money or deliver the personal property, as required by the order and in accordance with Section 62-5-103, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.
(D) The settlement of any claim that does not exceed two thousand five hundred dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property may be effected by the parent, grandparent, or guardian of the minor or incapacitated person without court approval of the settlement and without the appointment of a conservator. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the parent, grandparent, or guardian shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefore on the claim, which is binding upon the minor or incapacitated person. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103."
SECTION 13. Section 20-7-420 of the 1976 Code, as last amended by Act 249 of 2006, is further amended by adding at the end:
"(C) Notwithstanding another provision of law, the family court has concurrent jurisdiction with the probate court over protective proceedings in connection with:
(1) incapacitated persons, other than minors, who are already before the family court in pending matters; and
(2) minors."
SECTION 14. This act takes effect upon approval by the Governor.
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