House of Delegates

Keller v. State Bar of California, 496 U.S. 1 (1990)

“Here the compelled association and integrated bar are justified by the State’s interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.” 496 U.S. at 13-14. “Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisors to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern.” 496 U.S. at 15.

AGENDA

SOUTH CAROLINA BAR HOUSE OF DELEGATES May 19, 2016 @ 1:15 p.m.

CALL TO ORDER J. Steedley Bogan SET THE AGENDA Chair 1. Approval of Consent Agenda J. Steedley Bogan a. Approval of Minutes of Meeting held on January 21, 2016 Chair b. Receipt of March Financial Statements 2. Presentation of Pro Bono Lawyer of the Year Awards Margaret S. Day Committee Chair 3. Presentation of Legal Services Lawyer of the Year Award Marie-Louise Ramsdale Bar Foundation President 4. Presentation of Young Lawyer of the Year Award Patrick C. Wooten YLD President 5. Presentation of Law Related Education Lawyer of the Year Award Walter G. Dusky Committee Chair 6. Recognition of Leadership Academy Participants Anne S. Ellefson President 7. Report of the President Anne S. Ellefson President 8. Request from Elder Law Committee to Amend Article 5 of Title 62 Sarah G. St. Onge Committee Chair 9. Request from Professional Liability Committee in re Keith M. Babcock Voluntary Malpractice Insurance Disclosure Committee Chair 10. Request from Practice and Procedure Committee to Amend Andrew N. Cole Rule 58, SCRCP Committee Chair 11. Request from Practice and Procedure Committee to Amend Andrew N. Cole Rule 53(b), SCRCP, and Rule 71(a), SCRCP Committee Chair 12. Request to Decrease Term on Lawyers’ Fund for Client Protection Sally H. Rhoad Committee Committee Chair

13. Request to Adopt Resolution on Court-Centered Regulation J. Leeds Barroll, IV of Legal Services 11th Circuit Representative 14. Request to Support License Fee Increase for Pro Bono J. Calhoun Watson Administration Immediate Past President 15. Nomination of Members of the Commission on Continuing Legal M. Dawes Cooke, Jr. Education and Specialization Secretary 16. Election of the Members of the Nominating Committee M. Dawes Cooke, Jr. Secretary 17. Approval of Bar and CLE Division Budgets William K. Witherspoon President-Elect Recess to Convene Assembly Anne S. Ellefson President

* Special Order at 2:30 p.m. Installation of Board Members, Officers and President

President William K. Witherspoon President-Elect Elizabeth H. Warner Treasurer M. Dawes Cooke, Jr. Secretary Beverly A. Carroll Chair, House of Delegates J. Hagood Tighe Board, 1st Judicial Region Stephen M. Cox Board, 2nd Judicial Region Catherine H. Kennedy Board, 3rd Judicial Region Mary Elizabeth Sharp Board, At Large Ivory L. Narcisse Board, YLD Representative Lindsay A. Joyner Board, YLD Representative Patrick C. Wooten ABA State Bar Delegate John D. Elliott ABA State Bar Delegate Alice F. Paylor

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Minutes House of Delegates

January 21, 2016

The House met on January 21, 2016, at the Belmond Charleston Place Hotel. Present were: Daniel Joseph Ballou; A. Parker Barnes, III; J. Leeds Barroll, IV; Samuel Robert Bass, II; Mark S. Berglind; Susan B. Berkowitz; J. Steedley Bogan; James Edward Bradley; Robin A. Braithwaite; George P. Callison, Jr.; Mary Theresa Campbell; Michael S. Cashman; George B. Cauthen; Nicholas J. Clekis; Amie L. Clifford; J. Benjamin Connell; M. Dawes Cooke, Jr.; Lee Deer Cope; Leslie A. Cotter, Jr.; Patrick G. Dennis; Daniel L. Draisen; Martin S. Driggers, Jr.; Rhett C. Dunaway; Anne S. Ellefson; John D. Elliott; F. Earl Ellis, Jr.; Eric K. Englebardt; Frank L. Eppes; Stinson Woodward Ferguson; Rosalyn Woodson Frierson; Kenneth S. Generette; C. Allen Gibson, Jr.; Anna Snelling Gluse; Robert Fredrick Goings; Harry L. Goldberg; Thomas R. Gottshall; W. Andrew Gowder, Jr.; Elizabeth Van Doren Gray; William Douglas Gray; William Brantley Harvey, Jr.; William B. Harvey, III; Daryl G. Hawkins; Sean Joseph Hinton; Cecil Kelly Jackson; Meliah Bowers Jefferson; Jacob H. Jennings; Daniel Edward Johnson; Justin S. Kahn; D. Michael Kelly; Russell Britton Kelly; Catherine H. Kennedy; Trent M. Kernodle; Howard P. King; Wes A. Kissinger; Lynsey Traynham Kmetz; Christopher R. Koon; Lanneau Wm. Lambert, Jr.; LeRoy Free Laney; James Grant Long, III; Angus H. Macaulay; Charles Stuart Mauney; Riley Johnson Maxwell; John Lucius McCants; J. Edwin McDonnell; John O. McDougall; Ian Douglas McVey; Joseph S. Mendelsohn; David B. Miller; Kirby Rakes Mitchell; Julie Jeffords Moose; John Hammond Muench; Randall K. Mullins; Adam Christopher Ness; C. Tyson Nettles; Irish Ryan Neville; Cynthia Hall Ouzts; James Graham Padgett, III; James C. Parham, Jr.; Alice F. Paylor; Anne Louise Peterson-Hutto; Thomas Blaine Pleming; Sheally Venus Poe; Jeremy Poindexter; Andrew Troy Potter; Ashlin Blanchard Potterfield; William O. Pressley, Jr; Edward K. Pritchard, III; John Murdock Prosser, Jr.; Marie-Louise Ramsdale; Robert Douglas Robbins; Pamela Jane Roberts; John Edward Robinson; John Edward Rosen; Richard S. Rosen; Rebecca Ann Roser; John Edward Roxon; Martha Kent Runey; Eric Wm. Ruschky; Nancy Doherty Sadler; Stephen T. Savitz; Mary Elizabeth Sharp; Mark S. Sharp; Robert S. Shelton; Reid T. Sherard; Jane Opitz Shuler; Mary Amanda Harrelson Shuler; Lisa Lee Smith; Michael Benjamin Smith; Henry B. Smythe, Jr.; Christian Giresi Spradley; Wesley Alexander Stoddard; Randell Croft Stoney, III; Hal M. Strange; Joseph Preston Strom; Fred W. Suggs, Jr.; David L. Tedder; Carmen Harper Thomas; William R. Thomas; John Hagood Tighe; Thomas S. Tisdale, Jr.; Robert E. Tyson, Jr.; Flo Lester Vinson; Robert Bruce Wallace; Bradish J. Waring; Elizabeth H. Warner; J. Calhoun Watson; Robert M. Wilcox; Donald B. Wildman; Mitchell Willoughby; William Marvin Wilson, III; William K. Witherspoon; David Whitten Wolf; Patrick Coleman Wooten; and J. Rutledge Young, Jr. Guests present were: Kelsey J. Gilmore-Futeral; Hon. J. Mark Hayes; II, Kimberly A. Kelly; John S. Nichols; Sarah G. St. Onge; and Clinton J. Yarborough. Representing the Bar staff were: Leah G. Johnson; Charmy Medlin; Jill C. Rothstein; Jason Stokes; Leigh G. Thomas; and Robert S. Wells.

Minutes, House of Delegates January 21, 2016 Page two The Chair called the meeting to order. A quorum was declared present. The Chair stated that agenda item #5, Request to Amend Rule 53(b), SCRCP, and Rule 71(a), SCRCP, and agenda item #12, Request to Support H3191, had been withdrawn. A motion was made to adopt the revised agenda. The motion was seconded, and it was approved. Mr. McDougall moved to allow privileges of the floor to nonmembers. The motion was seconded, and it was approved. A motion was made to adopt the agenda as amended. The motion was seconded, and it was approved. A motion was made to approve the Consent Agenda - approval of the minutes of the May, 14, 2015, meeting; receipt of November Financial Statements and a request from the Fee Disputes Board for rule changes. Mr. Watson moved to approve the Consent Agenda. The motion was seconded, and it was approved. Judge Hayes recognized the 2015 Law Day Essay Contest winner, Aimee McVey. Under report of the President, Ms. Ellefson reported on efforts to assist South Carolina flood victims, thanking Bar members and staff for their efforts. She reviewed statistics on depression and suicide in the profession and highlighted Bar programs and services including the new Bar website, practice management resources and CLEs around the state. The noted the work of the Bar Foundation and encouraged House members to contribute. Next, Mr. Yarborough presented a request from the Unauthorized Practice of Law Committee to support legislation on impersonating a lawyer. Mr. Mullins moved to approve the request. The motion was seconded, and it was approved. Mr. Robinson presented a request from the Practice and Procedure Committee to amend Family Court Rule 25 regarding discovery. Mr. Robinson moved adoption of the proposal. The motion was seconded. Mr. McDougall stated that he had been asked to address the House on behalf of the Family Law Section Council and the South Carolina Chapter of the American Academy of Matrimonial Lawyers. He stated that the two entities fully supported the proposal with the change of “or” to “and” before the word discovery as below.

Recognizing the unique nature of the court's jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, the parties’ shall be allowed to engage in formal depositions or and discovery according to the South Carolina Rules of Civil Procedure. shall be conducted only by stipulation of the parties or by court order

Minutes, House of Delegates January 21, 2016 Page three

upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.

Mr. Robinson noted that the Committee had accepted Mr. McDougall’s suggestion and that the correct version was displayed on the screen. Mr. Elliott moved to table the proposal. The motion was seconded. The motion failed. Ms. Ramsdale spoke against the proposal. Mr. Sherard and Mr. Mullins spoke in favor of the motion. Mr. Elliott moved to send the proposal back to the Committee for further review. The motion failed for lack of a second. Ms. Vinson spoke in favor of the proposal. Mr. Tedder moved to send the proposal back to the Committee and ask them to come back to the House at a time certain with alternatives. The motion was seconded. The motion failed. Upon taking a vote, the original motion to adopt the proposal was approved. The proposed change was to be forwarded to the Court. Next, Mr. Barroll presented a request to adopt a resolution urging the Bar to act in support of the rule of law and moved approval. The motion was seconded, and it was approved. Mr. Miller presented a request from the Trial and Appellate Advocacy Section to introduce a three-tier ranking system for CLE programs and additional teaching credit to presenters of advanced courses. He moved approval of the proposal. The motion was seconded. Mr. Tighe advised the House that the CLE Seminars Committee had withdrawn its objection to the proposal. Ms. Clifford opined that there should be some minimum requirements for written materials in order for speakers to obtain additional credit hours. Following discussion, the motion was approved. The proposal was to be forwarded to the Commission on CLE and Specialization. Next, Ms. Kelly and Ms. Gilmore-Futeral presented a request from the Animal Law Committee to oppose S. 687 on antitrust grounds. Mr. McDougall moved approval of the request. The motion was seconded. Following discussion, the motion was approved. Ms. St. Onge presented a request from the Elder Law Committee to support the Adult Students with Disabilities Education Rights Consent Act. Ms. Clifford moved to approve the request. The motion was seconded. Mr. Poindexter spoke in favor of the request. The motion was approved. Next, Ms. St. Onge presented a request from the Elder Law Committee to circulate proposed amendments to Article 5 of Title 62 for public comment. A final proposal was to come to

Minutes, House of Delegates January 21, 2016 Page four the House in May. Ms. Kennedy moved approval of the request. The motion was seconded, and it was approved. Mr. Nichols presented recommendations from the Limited Scope Task Force. Mr. Elliott moved approval of the recommendations. The motion was seconded. Ms. Clifford opined that Rules 4.2 and 4.3 as worded treated clients differently. Mr. Nichols disagreed. Mr. Barroll moved to change the word “opposing” in reference to counsel to “all,” opining that the change would address Ms. Clifford’s concerns. Mr. Elliott accepted Mr. Barroll’s suggestion to amend the original motion. The amended motion was approved. Mr. Cooke presented amendments to the Bar Constitution addressing tie votes in elections of officers and Board members and moved approval. The motion was seconded, and it was approved. Mr. Cooke presented amendments to align the Bar Bylaws with the Court's creation of Rule 427, SCACR. He moved approval of the amendments. The motion was seconded, and it was approved. Mr. Cooke presented amendments to the Bar Constitution to establish the procedure for election of a young lawyer delegate to the ABA. The motion was seconded. Mr. Barroll moved to provide that the House of Delegates rather than the Board of Governors would elect the delegate. The motion was seconded. It was noted that any proposed Constitutional amendments must be presented to the membership at least 30 days prior to consideration by the House. Mr. Barroll withdrew his motion. The main motion was approved. W. Steven Johnson and Stuart W. Snow, Sr. were nominated for reappointment and Rebecca Laffitte, John S. Nichols, Michele Patrao Forsythe and Robert A. Kerr Jr. were nominated for appointment to the Commission on CLE and Specialization. The nominees were to be presented to the Court. Matthew N. Tyler was elected to a vacancy on the Board of Governors. There being no further business, the meeting was adjourned.

Minutes South Carolina Bar Assembly

January 21, 2016 President Ellefson convened a meeting of the Assembly and declared a quorum was present. She invited agenda items. Ms. Ellefson moved to ratify the proposed Constitutional amendments and the constitutional amendments approved in May. The motion was seconded and approved. The Assembly was adjourned.

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SOUTH CAROLINA BAR

PRO BONO LAWYER OF THE YEAR

The South Carolina Pro Bono Awards program seeks to identify and honor individual lawyers, small and large law firms, government attorney offices, corporate law departments and other organizations and institutions in the legal profession that have enhanced the human dignity of others by improving or delivering volunteer legal services to our state’s low income community. Award recipients may have provided direct representation to individual clients, contributed to the development of innovative programs, impacted legislative efforts or otherwise aided in promoting access to the legal system for those unable to afford those services.

Past Pro Bono Awards 1987 W. Clarkson McDow Jr. 1988 Gary W. Poliakoff 1989 Marcia R. Powell 1990 Jon Rene Josey 1991 Harriet Daniels Hancock 1992 Edward T. Kelaher 1993 George B. Cauthen Nexsen Pruet Jacobs & Pollard 1994 Herbert E. Buhl III Ellis Lawhorne Davidson & Sims, PA Harvey & Battey, PA 1995 Freeman and Skinner Robinson, McFadden & Moore, PC Trefor Thomas 1996 Bernard J. Warshauer Lowery, Thompson & King Suggs & Kelly, PA 1997 James G. Long III Fairbanks & Lindsay, PA 1998 Julio E. “Rick” Mendoza Nelson Mullins Riley & Scarborough, LLP Wukela Law Firm 1999 Anderson and Jordan Finkel and Altman, LLC Eric K. Graben 2000 John R. Lester Kathleen Palinski 2001 Daniel J. Fritze Nelson Mullins Riley & Scarborough, LLP Smalls Law Firm, PC 2002 Anthony C. Hayes 2003 Jan M. Baker Moss & Reed, PA 2004 Stuart M. Andrews Jr. Robert K. Whitney

2005 The Benjamin Law Firm, LLC Jeffery P. Bloom 2006 Jonathan S. Altman Stephanie E. Lewis D. Peters Wilborn Jr. 2007 Ellis, Lawhorne & Sims, PA 2008 Philip A. Middleton 2009 Kristen E. Horne Keri A. Olivetti 2010 Christopher Genovese Alex Paterra 2011 Bradford T. Cunningham Louis T. “Tom” Runge Sowell Gray Stepp & Laffitte, LLC 2012 Jason Scott Luck 2013 Sharon Young Ward 2014 John E. Robinson

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Ellen Hines Smith Legal Services Lawyer of the Year Award

The Ellen Hines Smith Legal Services Lawyer of the Year Award is named in memory of

Ellen Hines Smith of Spartanburg. Ellen was the founding director of Piedmont Legal Services. She served as a member of Spartanburg City Council and a municipal court judge. Her entire legal career was devoted to the creation and provision of legal services to the citizens of South Carolina. Her commitment and leadership were recognized both in South Carolina and across the nation. The award is presented to recognize a lawyer who has demonstrated commitment to the development and delivery of quality legal services to the poor in South Carolina through the legal services program.

The Ellen Hines Smith Award was established in 1989, and is given to a South Carolina Bar

member who is employed as an LSC grantee program lawyer who has demonstrated long-term commitment to legal services and who has personally done significant work in extending legal services to the poor.

Previous Award Recipients

1989 – Martha B. Dicus

1990 – Thomas L. Bruce

1991 – Johnny Simpson

1992 – Harold F. Daniels

1993 – Andrea E. Loney

1994 – Mozella Nicholson

1995 – Thomas A. Trent

1996 – Susan A. Cross

1997 – Angela M. Myers

1998 – Ethel E. Weinberg

1999 – Nancy M. Butler

2000 – Byron A. Reid

2001 – Lynn P. Wagner

2002 – Eddie McDonnell

2003 – Frank Cannon

2004 – Willie B. Heyward

2005 – Lynn Snowber-Marini

2007 - Marcia Powell-Shew

2009 – Maureen White

2010 – Susan J. Firimonte

2011 – Jack E. Cohoon

2012 – Kirby Mitchell

2013 – Kimberly Shelton

2014 – Kimaka Nichols-Graham

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Each year, the Young Lawyers Division awards "The Young Lawyer of the Year” Award to recognize a young lawyer for his or her contribution(s) to the community and/or the legal profession. The nominee for the Award must be a member of the Young Lawyers Division, but he or she may neither be a current member of the Division's Executive Council or a Division Committee Chairperson nor have been a member or chairperson within the previous calendar year. The Award will be based upon the nominees' demonstrated: (1) Services to the legal profession and/or (2) Services to his or her community. Past award winners are listed below: 1984 Merl F. Code 1985 Linda A. Grice 1986 William C. Hubbard 1987 Kenneth E. Young 1988 Deborah K. Neese D. Michael Kelly 1989 Charles B. Simmons Jr. 1990 Martha McElveen Horne 1991 David E. Belton Jacqueline D. Belton 1992 Charles Bradley Hutto 1993 Issac McDuffie Stone III 1994 Susan E. Ziel 1995 Susan E. Berkowitz 1996 Kim S. Aydlette 1997 David G. Guyton 1998 (Not awarded) 1999 James E. Smith Jr. 2000 Hervery B.O. Young

2001 Stephen K. Benjamin Marie-Louise Ramsdale 2002 Kimaka Nichols 2003 Eric M. Johnsen 2004 Tally Parham 2005 J. Todd Rutherford 2006 Jennifer W. Rubin 2007 Tina N. Herbert 2008 Genevieve N. Waller 2009 Michelle Dhunjishah 2010 William Reamer Johnson 2011 Amy Landers May 2012 Jennifer Ashburn 2013 I. Ryan Neville 2014 Allison P. Sullivan 2015 Elizabeth “Beth” J. Palmer & Rebecca A. Roser

YOUNG LAWYER OF THE YEAR AWARD

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LRE Lawyer of the Year

Award Criteria: The award criteria for such a prestigious honor is for a member of the SC Bar who has - fostered public understanding of the values or our legal and judicial system; - stimulated a deeper sense of individual responsibility by helping students recognize their legal duties and rights; - encouraged and supported effective LRE programs; and - increased communication among students, educators, and those working in the legal system. Past Recipients: 2000 Stephen Cox 2001 R. Markley Dennis Jr. 2002 Harold C. Staley Jr. 2003 The Hon. Jack A. Landis 2004 Donna M. McQueen 2005 John DeLoache 2006 Barbara Seymour 2007 Elizabeth “Babs” Warner 2008 Holly Huggins Wall 2009 Daniel Hunt 2010 Walter Dusky 2011 The Hon. John M. Rucker 2012 Gene P. Vaught, III 2013 Blair Ballard Massey 2014 George W. Branstiter, II 2015 Thomas McRoy “Roy” Shelley III

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South Carolina Bar Leadership Academy

2016 The Leadership Academy is a selective program designed to train the next generation of Bar and community leaders. Participants were equipped with networking opportunities, professionalism training, community awareness and other skills necessary to give back to the profession and position themselves as leaders in our communities. Congratulations to the 2016 graduates: Brent Hamilton Arant, Columbia Marshall "Matt" Austin, Charleston Sheila Bias, Columbia Patrick Cleary, Columbia Cedric Cunningham, Greenville Emmanuel Ferguson, Charleston Garrett Johnson, Rock Hill Bess Lochocki, Rock Hill Julie L. Moore, Charleston George Morrison, Charleston Amanda Mueller, Camden Lillian "Marshall" Newton, Columbia Sutania Radlein, Lexington Kerri Brown Rupert, Columbia Jasmine Smith, Columbia Brett Lamb Stevens, Columbia Danielle “Hope” Watson, Charleston Rebecca S. Williams, Columbia Nicole M. Wooten, Columbia Michael D. Wright, Camden

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REPORT OF THE PRESIDENT MAY 19, 2016

ANNE ELLEFSON

MEMBERSHIP SERVICES

Strategic Plan Year one of the strategic plan is nearly complete, and the Board of Governors adopted a revised plan for years two and three based on the work undertaken thus far. Efforts will be noted in remarks today. Bar Website Redesign of the Bar website is underway, to include modern and responsive design, advanced search function and mobile-friendly resources. The wireframing and design phases were completed in March, and development is now in progress. Wellness Committee The Wellness Committee studies factors impacting the emotional and physical well-being of attorneys and educates members about resources that will improve their mental and physical wellness. During the Bar Convention, the committee hosted opportunities for exercise and a seminar featuring former USC running back Marcus Lattimore on learning to roll with the punches. This spring the committee has shared wellness tips, recipes and photos on its blog at www.scbar.org/livingabovethebar. The committee also continues to add wellness partners to the Bar’s collection of member benefits. Diversity Task Force The Diversity Task Force continues to examine the importance and value of a diverse profession. The group is also identifying best practices in what firms are currently doing in this area, in addition to studying activities on a national level. During the Convention, the task force sponsored an interactive program designed to provide Bar members with the opportunity to learn about diversity and inclusion principles that can be implemented within an organization. The program was presented by Diversity Leadership in Action™ (DLA), the firm that facilitates the Richard W. Riley Institute’s award winning Diversity Leaders Initiative at Furman University. Paralegal Certification Last fall the S.C. Supreme Court implemented a program for the voluntary certification of paralegals in South Carolina to assist in the delivery of legal services by identifying qualified individuals to perform substantive legal work under the direction and supervision of a lawyer. The Bar is administering the program, and the certification process launched earlier this month. Gov. Haley declared June 10 Paralegal Day in South Carolina. Practice Management Assistance Program (PMAP) PMAP provides technology consultations by telephone, through the “Bar Bytes” column and through technology tips published through E-Blast and Twitter. PMAP is also the point of contact for Fastcase and the Lending Library. The director authors a blog, www.scsmallfirm.com, for solo and small firm lawyers in South Carolina that features information about new products, technology tips and start-up advice. PMAP periodically hosts free lunch and learn webinars on current technology topics. A free video series on law office management topics is in production.

Lawyers Helping Lawyers The Lawyers Helping Lawyers program continues to assist lawyers affected by depression and/or substance abuse, providing referral services, peer support and monitoring services. The LHL staff also maintains a regular on-site presence at the USC School of Law and Charleston School of Law. Call LHL at (866) 545-9590 for free and confidential assistance, advice or referral. Members may also call CorpCare, which provides up to five free hours of anonymous intervention counseling, at 855-GET-HELP (855-438-4357) to be referred to a counselor 24 hours a day. In January the Board of Governors approved a request to adopt the SOLACE (Support of Lawyers/Legal Personnel – All Concerns Encouraged) program of the Federal Bar Association, SC chapter. The Bar’s Sustained program, which pairs attorneys coping with illness with similarly affected lawyers, will be transitioned to SOLACE to support its work.

Legislation The Bar continues to monitor and advocate for legislation pertaining to the interests of Bar members. Members benefit from these monitoring services through The Legislative Update, a summary of all significant legislation passed; Weekly Legislative Reports on the Bar website during legislative session; and an online legislative tracking system. The Bar encourages members to help inform state legislators of the issues and concerns of lawyers through its Legislative Action Network. 2016 Leadership Academy The eighth installment of the Bar’s Leadership Academy launched in February. The purpose of the program is to enhance the professional growth and leadership skills of selected members to enhance their ability to make meaningful contributions to the legal profession and community. The graduates will be recognized during the meeting today. New Member Benefits The Bar continues to add discounts on a number of products and services to its collection of member benefits, such as wellness providers, travel services and office products. For a complete listing of Bar member benefits, visit www.scbar.org/benefits. Judicial Qualifications Reports The Judicial Qualifications Committee released reports on judicial candidates in April. The Bar remains committed to its involvement in this process. The end goal of a competent and respected judiciary is of the utmost importance. Member Publications • E-Blast is delivered to members’ inboxes each week and features advance sheet summaries, CLE information, court news, summaries on pending legislation, tech tips and other legal information. • SC Lawyer is published in January, March, May, July, September and November. Members may opt to only receive the digital edition; visit www.scbar.org/sclawyer for more information. Past articles can be found at the link above and through Fastcase.

PUBLIC SERVICES

Pro Bono Program The new Pro Bono Program will facilitate the delivery of pro bono services alongside other stakeholder organizations. A framework for the program has been developed, to include appointment of a pro bono board and formation of local committees. A proposed funding mechanism is before you today.

Pro Bono Award Today the Bar will bestow the 2016 Pro Bono Award upon Laura Evans of Charleston and Tina Cundari of Columbia for their contributions to meeting the civil legal needs of citizens who cannot afford the services of an attorney. This year the Pro Bono Committee received approval to institute an additional award honoring those who have demonstrated a long-term commitment to pro bono. National Health Care Decision Day In observance of National Healthcare Decisions Day, April 16, the Bar participated in an Advocacy Day at the Statehouse where sample healthcare power of attorney and living will forms were available. Gov. Nikki Haley signed a proclamation proposed by the Bar recognizing April 16, 2016, as Healthcare Decisions Day in South Carolina. SCLawAnswers.org SCLawAnswers.org allows individuals who meet certain qualifications to post legal questions to volunteer attorneys. It is accessible 24 hours a day, seven days a week, allowing both the attorney and client to use the resource at their convenience. Questions are sorted based on topic, including benefits, consumer law issues, health care, family, work related issues and more. The identity of the attorney is not made known to the inquirer. Questions to the site are often answered during “Friday Blitzes,” which provide an opportunity for law students to see real world questions and interact with local lawyers. Free Legal Clinics The Public Services Division, through volunteer Bar members, continues to host free legal clinics around the state to educate the public on such issues as bankruptcy, divorce, wills and other legal matters. More than 50 clinics were held during the spring. Ask-A-Lawyer The Bar continues to sponsor periodic, regional Ask-A-Lawyer programs, which consist of televised phone banks and web chats, in an effort to assist the public with legal questions. This program emphasizes the positive role lawyers play in their communities. Lawyer Referral Service The Lawyer Referral Service currently has 369 Bar members participating. The service is promoted through statewide radio advertising and a Google AdWords campaign. Law School for Non-Lawyers Installments of the Law School for Non-Lawyers were held during the spring in Orangeburg, Pendleton and Sumter. The courses covered an overview of the court system, living wills, family law, landlord/tenant issues, employment law, workers’ compensation and a variety of other topics. Fee Disputes/Lawyers’ Fund The Resolution of Fee Disputes Board has closed 96 cases since July 1. The Fee Disputes Board resolves fee, cost and disbursement disputes between clients and Bar members. The Lawyers’ Fund for Client Protection, which reimburses clients for money or property mishandled by Bar members, received 27 new applications, resolved 57 pending applications and paid $287,528.32 to former clients since July 1. Ask-A-Lawyer, Law School for Non-Lawyers and free legal clinics are funded by an IOLTA grant from the S.C. Bar Foundation, Inc. and from Bar funds.

LAW RELATED EDUCATION High School Mock Trial Fort Mill High School placed first among 11 other high schools at the 2016 State High School Mock Trial Competition, held March 11-12 in Columbia, marking the school’s third state title. The team advanced to the national competition May 12-15 in Boise, Idaho. Wando High School placed first runner-up. Forty-seven teams participated in February’s regional competitions that were held in Charleston, Conway, Greenville, Lexington and Sumter. Project Citizen Schools implemented Project Citizen throughout the state. Project Citizen encourages students to research a public policy they believe should be revised or created. By doing so, they learn what it means to be effective citizens and are inspired to make changes in their communities. Through the program, students identify a problem, develop three proposed alternative policies, develop a class policy as a result of surveys and evaluations, and complete an action plan for adoption of the policy. Skills USA The LRE Division hosted the 2016 Criminal Justice Quiz Bowl competition, a component of the two-day 2016 Skills USA competition held in Greenville in April. The Center for Advanced Technical Studies in Chapin won its third state championship title. LRE Awards The LRE Committee’s Awards Subcommittee has named the following award recipients: Teachers of the Year: Lynn Quinn and Sally Wallace Lawyer of the Year: Garrett Johnson Citizen of the Year: Stella Donelan In addition, nine high school students were awarded mock trial scholarships for their achievements and participation in the mock trial program. Teacher Newsletter The LRE Division continues to distribute an electronic newsletter to educate teachers about law related programs and communicate relevant news and upcoming events. The newsletter is distributed three times each year. The Division also keeps students and teachers up to date through social media. Trainings The LRE Division hosted a number of live and webinar trainings. Trainings were held at individual schools and statewide to prepare teachers for implementation of LRE programs. In addition, individual webinars for each topic covered by the Law for Teachers program are available on the LRE website. The LRE programs noted above are funded by an IOLTA grant from the S.C. Bar Foundation, Inc. and Bar funds. Competitions are made possible through the efforts of members of the legal community who volunteer to serve as attorney coaches, district coordinators, scoring judges and presiding judges.

CONTINUING LEGAL EDUCATION

Programming Options The CLE Division continues to offer a number of programs in various formats and locations around the state to give members the best value, variety and flexibility in CLE programming. Available formats

include live seminars, teleseminars (via phone), online seminars and live webcasts. Please visit www.scbar.org/cle to learn more about the variety of options. Convention For the first time since 2008, the Convention was held in Charleston, where more than 1500 attendees chose from 25 seminars, visited 35 on-site exhibitors, enjoyed wellness activities such as fun runs and healthier break options, and attended a variety of special events. Plans are underway for the 2017 Convention, scheduled for the first time in Greenville. Mark your calendars for Jan. 19-22, and visit www.scbar.org/convention for the latest developments as well as sponsorship opportunities. Live Seminars Since July 1, the CLE Division has hosted or sponsored 82 live seminars with a total attendance of 5,850. The Division continues to develop a wide variety of challenging programs including basic and advanced level workshops, section member-only programs and mediation training. Recent programs have included interdisciplinary collaborative practice, advanced guardian ad litem training, electronically stored information, trial skills and mental health, special needs trusts, hot topics in civil trial practice and the 25th Annual Criminal Practice in SC program. In accordance with the strategic plan, “tips from the bench” programs were held in various locations around the state, and technology offerings were increased. eCLE Access The CLE Division offers convenient access to on-demand seminars, live webcasts and live teleseminars. The Division continues to expand the catalog of programs, providing new topics and keeping the material in each topic area fresh and relevant. Currently, 360 online, on-demand seminars on a wide variety of topics are available 24/7. Members can watch live webcasts of seminars in real time, or pause, rewind and review archived webcasts and online programs for up to 30 days. The Division has released 104 new online seminars and 22 live webcasts and has offered 204 teleseminars since July 1, with a total attendance of approximately 1,725. Publications The robust publications department of the CLE Division continues to publish a number of new books, supplements and software programs across various practice areas. Titles published since July include: Annotated South Carolina Rules of Professional Conduct, 2016 Edition Appellate Practice in South Carolina, Third Edition Book of Estate Planning Questions and Answers, Third Edition Elements of Civil Causes of Action, Fifth Edition Marital Litigation in South Carolina, 2010-2015 Cumulative Supplement Marriage and Divorce Law in South Carolina: A Layperson’s Guide, Fourth Edition Medicare Issues in Liability and Workers’ Compensation Settlements So You’re Going to Try Your First Case, Fourth Edition South Carolina Criminal Offenses and Penalties, 2015 Edition Pocket and All Offenses Editions South Carolina Evidence Handbook Annotated, Tenth Edition South Carolina Requests to Charge – Civil, Revised and Updated Second Edition South Carolina Rules Annotated 2015 The Law of Automobile Insurance in South Carolina, Seventh Edition The South Carolina Consumer Protection Code, 2015 Cumulative Supplement The South Carolina Law of Torts, 2015 Cumulative Supplement The South Carolina Litigation Handbook

Marketing The Division continues to promote its programs to members through seminar “Preview” catalogs, brochures, e-brochures, E-Blast, signage, social media and Bar publications. Look for CLE offerings in any of these resources or visit www.scbar.org/cle. This year a “how did you hear about this program” question was added to the online registration process to help direct future marketing efforts.

YOUNG LAWYERS DIVISION Community Law Week The Division observed Community Law Week the first week in May with projects designed to provide the public with information about its legal rights and promote community involvement. Projects included the Cocky’s Reading Express program and Ask-A-Lawyer phone banks and web chats. Cocky’s Reading Express is a literacy outreach program created by the University of South Carolina through which volunteers visit schools, read aloud to children and provide books to take home. Cinderella Project Since its launch in 2001, the Cinderella Project has become one of YLD’s most popular projects. The annual event involves collection of gently worn formal gowns for socially and economically disadvantaged high school students. This year’s project was held in Aiken, Anderson, Columbia, Greenville, Greenwood and Orangeburg. Families Forever Adoption Fairs In 2008, YLD established the Families Forever project, which focuses on adoption awareness. Annual family fairs provide free adoption information, including seminars addressing domestic and international adoption, foster care and the adoption process. This year, fairs were held in N. Charleston, Columbia and Simpsonville. iCivics The iCivics Committee launched the “My Voice. My Vote.” Instagram Scholarship Competition this spring, open to all South Carolina high school seniors. Participating students created an Instagram video that responded to one of several questions designed to encourage new voters to think critically and creatively about their right to vote. Entries are currently being judged, and the winning student will receive a $2,000 scholarship. Income Tax Assistance Through the Volunteer Income Tax Assistance (VITA) program, young lawyers provided free tax preparation for households with low-to-moderate incomes in Charleston, Columbia and Greenville. Members of this committee received the necessary training for preparing basic federal and state income tax returns. Color of Justice The Color of Justice Committee held programs for middle and high school students in February and March in Columbia and Spartanburg, respectively. This program seeks to increase diversity in the legal profession by exposing students from diverse backgrounds to careers in the legal field. Programs feature interactive discussions with law students, admissions personnel, law professors, judges and young lawyers.

Special Olympics YLD continued its support of Special Olympics South Carolina by providing sponsorships and volunteers to serve the needs of South Carolinians with intellectual disabilities. Members of this committee recruit and coordinate volunteers and encourage participation at Special Olympics events throughout the state. Voices Against Violence In January, the Voices Against Violence Committee presented the “Using the Law as a Sword and a Shield for Domestic Violence and Human Trafficking Survivors” CLE to over 100 attorneys. It included an overview of new domestic violence laws, training for civil attorneys, and a survivors’ panel that addressed what attorneys should be aware of to help interact with victims. In March the committee held its Project Shelter Makeover at YWCA of the Upper Lowlands, a women’s domestic violence shelter in Sumter that was ravaged by the October flooding. Last fall the committee collected basic tools and gift cards to home improvement stores to help with this effort. Wills Clinic In April the Division recruited attorneys and notaries to participate in a wills clinic where wills, health care powers of attorney and living wills were drafted for officers going through basic training at the S.C. Criminal Justice Academy. Conventions Committee The YLD hosted several successful events during the Convention, including the American Voter Project, where young lawyers went to Burke High School and gave a presentation to seniors about the importance of voting. The Division also held a leadership luncheon for the leadership of the YLD, co-hosted a CLE with the Torts and Insurance Practices Section, and hosted a lowcountry boil attended by hundreds of YLD members. Membership Events The Membership Events Committee planned events for young lawyers allowing them to network and get to know one another in a family setting. In April a group met at the Runaway Café at the Greenville Downtown Airport for snacks and a bounce castle for kids. On May 22, young lawyers are invited to a fun afternoon of baseball in Charleston for the Charleston Riverdogs v. Columbia Fireflies game. Courthouse Keys The Courthouse Keys Committee hosts events for young lawyers to meet with judges from around the state to give them an opportunity to learn from and network with members of the bench. In April attendees enjoyed breakfast with the Justices of the SC Supreme Court and a luncheon with the Administrative Law Court. The Division also continued its “Bridging Broad Street and Beyond” series, which Senior U.S. District Judge Patrick Michael Duffy and Charles Goldberg began in Charleston to connect local young lawyers with judges and more senior members of the Bar. The program was expanded to Columbia and Greenville this year. Professional Development The Professional Development Committee hosts programs to help young lawyers become successful by partnering with other young professional organizations for networking and learning opportunities. Most recently, a program was held on the Do’s and Don’ts of Business Development in April in Charleston, and a Federal Court Mentoring Lunch was held in May.

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1

MEMORANDUM

TO: House of Delegates

FROM: Elder Law Committee/ Article 5 Task Force

Presenter: Sarah St. Onge, Elder Law Committee & Article 5 Task Force Chair

RE: Proposed Revisions to Title 62 - South Carolina Probate Code

Article 1 § 62-1-112

Article 1 § 62-1-302

Article 1 § 62-1-401

Article 5 § 62-5-101 through § 62-5-435

Article 5 § 62-5-715 through § 62-5-716

Proposed Revision to Title 8- Public Officers and Employees

Chapter § 21 8-21-800. Relief from filing fees, court costs and other probate

costs.

MATERIALS: Proposed draft with comments noting substantive changes made since the January

21, 2016, approval (Page 3-37)

DATE: May 19, 2016

The Elder Law Committee (ELC) of the South Carolina Bar, in cooperation with the South

Carolina Association of Probate Judges Article 5 Committee, has spent the last year and a half

working on recommendations to improve the process for appointment of guardians and

conservators in South Carolina Probate Courts. On January 21, 2016, the House of Delegates

approved the preliminary draft. Since then, efforts have been made to reach out to the public and

those interested in this project, including:

The SC Bar publicized a second public comment period, noting the ELC’s goals for amending Article 5 of the Probate Code, along with the drafted language;

The ELC’s goals and the drafted language was shared with the Probate Judges Association and discussed at one of their meetings; and

The Chair of the ELC reached out to each of the entities and individuals who commented in the first public comment period to ensure they had an opportunity to provide feedback

during the second phase of public comment.

The ELC received a number of comments in response to the outreach outlined above. All

comments were considered and several of the suggestions made by the public were incorporated

into the drafted changes. A majority of the second drafting phase consisted of grammatical and

stylistic revisions. The substantive changes are noted with comments in the attached draft.

The Elder Law Committee and Article 5 Task Force respectfully request approval for the Bar to

support the changes to the South Carolina Probate Code, along with the minor revisions to the

2

Public Officers and Employees Code. The Task Force plans on developing detailed reporters

comments and new forms to ensure a successful and comprehensive process to implement the

proposed changes to the process. While drafting the reporter’s comments, if the Task Force

identifies any substantive revisions, the Committee would like to request that the House

authorize the Board to approve the changes during the September 15, 2016, Board of Governors

meeting.

We appreciate your consideration and continued support of the Elder Law Committee.

3

ARTICLE 1.

GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT

PART 1.

SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS

SECTION 62-1-112. Contempt; in forma pauperis.

The inherent power of the court to impose penalties for contempt extends to all filing

requirements, proceedings, judgments, and orders of the court. The court has the power to grant

a motion to proceed in forma pauperis.

PART 3.

SCOPE, JURISDICTION, AND COURTS

SECTION 62-1-302. Subject matter jurisdiction; concurrent jurisdiction with family court.

(a) To the full extent permitted by the Constitution, and except as otherwise specifically

provided, the probate court has exclusive original jurisdiction over all subject matter related to:

(1) estates of decedents, including the contest of wills, construction of wills,

determination of property in which the estate of a decedent or a protected person has an

interest, and determination of heirs and successors of decedents and estates of protected

persons, except that the circuit court also has jurisdiction to determine heirs and

successors as necessary to resolve real estate matters, including partition, quiet title, and

other actions pending in the circuit court;

(2) Part 7, Article 5, and excluding jurisdiction over the care, custody, and control of

a person of a minor:

(i) protective proceedings and guardianship proceedings under Article 5;

(ii) gifts made pursuant to the South Carolina Uniform Gifts to Minors Act

under Article 5, Chapter 5, Title 63;

(iii) matters involving the establishment, administration, or termination of a

special needs trust for disabled individuals;

(3) trusts, inter vivos or testamentary, including the appointment of successor

trustees;

(4) the issuance of marriage licenses, in form as provided by the Bureau of Vital

Statistics of the Department of Health and Environmental Control; record, index, and

dispose of copies of marriage certificates; and issue certified copies of the licenses and

certificates;

(5) the performance of the duties of the clerk of the circuit and family courts of the

county in which the probate court is held when there is a vacancy in the office of clerk of

4

court and in proceedings in eminent domain for the acquisition of rights of way by

railway companies, canal companies, governmental entities, or public utilities when the

clerk is disqualified by reason of ownership of or interest in lands over which it is sought

to obtain the rights of way; and

(6) the involuntary commitment of persons suffering from mental illness, mental

retardation, alcoholism, drug addiction, and active pulmonary tuberculosis.

(b) The court’s jurisdiction over matters involving wrongful death or actions under the

survival statute is concurrent with that of the circuit court and extends only to the approval of

settlements as provided in Sections 15-51-41 and 15-51-42 and to the allocation of settlement

proceeds among the parties involved in the estate.

(c) The probate court has jurisdiction to hear and determine issues relating to paternity,

common-law marriage, and interpretation of marital agreements in connection with estate, trust,

guardianship, and conservatorship actions pending before it, concurrent with that of the family

court, pursuant to § 63-3-530.

(d) Notwithstanding the exclusive jurisdiction of the probate court over the foregoing

matters, any action or proceeding filed in the probate court and relating to the following subject

matters, on motion of a party, or by the court on its own motion, made not later than ten days

following the date on which all responsive pleadings must be filed, must be removed to the

circuit court and in these cases the circuit court shall proceed upon the matter de novo:

(1) formal proceedings for the probate of wills and for the appointment of general

personal representatives;

(2) construction of wills;

(3) actions to try title concerning property in which the estate of a decedent or

protected person asserts an interest;

(4) matters involving the internal or external affairs of trusts as provided in §

62-7-201, excluding matters involving the establishment of a “special needs trust” as

described in Article 7;

(5) actions in which a party has a right to trial by jury and which involve an amount

in controversy of at least five thousand dollars in value ($5,000); and

(6) actions concerning gifts made pursuant to the South Carolina Uniform Gifts to

Minors Act, Article 5, Chapter 5, Title 63.

(e) The removal to the circuit court of an action or proceeding within the exclusive

jurisdiction of the probate court applies only to the particular action or proceeding removed, and

the probate court otherwise retains continuing exclusive jurisdiction.

(f) Notwithstanding the exclusive jurisdiction of the probate court over the matters set forth

in subsections (a) through (c), if an action described in subsection (d) is removed to the circuit

court by motion of a party, or by the probate court on its own motion, the probate court may, in

its discretion, remove any other related matter or matters which are before the probate court to

the circuit court if the probate court finds that the removal of such related matter or matters

would be in the best interest of the estate or in the interest of judicial economy. For any matter

removed by the probate court to the circuit court pursuant to this subsection, the circuit court

shall proceed upon the matter de novo.

PART 4

5

NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER

MATTERS

SECTION 62-1-401. Notice; method and time of giving.

(a) If notice of a hearing on any petition is required and, except for specific notice

requirements as otherwise provided, the petitioner shall cause notice of the time and place of

hearing of any petition to be given to any interested person or his attorney if he has appeared by

attorney or requested that notice be sent to his attorney. Notice shall be given:

(1) by mailing a copy thereof at least twenty days before the time set for the hearing

by certified, registered, or ordinary first class mail, or by a commercial delivery service

that meets the requirements to be considered a designated delivery service in accordance

with 26 U.S.C. § 7502 (f)(2) addressed to the person being notified at the post office

address given in his demand for notice, if any, or at his office or place of residence, if

known;

(2) by delivering a copy thereof to the person being notified personally at least twenty

days before the time set for the hearing; or

(3) if the address or identity of any person is not known and cannot be ascertained

with reasonable diligence by publishing a copy thereof in the same manner as required by

law in the case of the publication of a summons for an absent defendant in the court of

common pleas.

(b) The court for good cause shown may provide for a different method or time of giving

notice for any hearing.

(c) Proof of the giving of notice shall be made on or before the hearing and filed in the

proceeding.

(d) Notwithstanding a provision to the contrary, the notice provisions in this section do not,

and are not intended to, constitute a summons that is required for a petition.

ARTICLE 5.

PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY

PART 1.

GENERAL PROVISIONS

SECTION 62-5-101. Definitions and use of terms.

Unless otherwise apparent from the context, in this Article:

(1) “Adult” means an individual who has attained the age of eighteen or who, if under

eighteen, is married or has been emancipated by a court of competent jurisdiction.

(2) “Alleged incapacitated individual” means:

(a) an adult for whom a protective order is sought;

(b) an adult for whom the appointment of a guardian is sought; or

(c) an adult for whom a determination of incapacity is sought.

Comment [cw1]: Amended to clarify that notice may be given by a commercial delivery service.

Comment [cw2]: Minor was removed from the definition.

6

(3) “Conservator” means a person appointed by the court to manage the estate of a protected

person.

(4) “Counsel for alleged incapacitated individual” means a person authorized to practice law

in the State of South Carolina who represents the alleged incapacitated individual in a

guardianship proceeding or a protective proceeding. Counsel shall represent the expressed

wishes of the alleged incapacitated individual to the extent consistent with the rules regulating

the practice of law in the State of South Carolina.

(5) “Court” means the probate court.

(6) “Disabled” means the medically determinable physical or mental impairment of a minor

or an adult as defined by 42 U.S.C. § 1382c, as amended.

(7) “Emergency” means circumstances that are likely to result in substantial harm to the

alleged incapacitated individual’s health, safety, or welfare or in substantial economic loss to the

alleged incapacitated individual.

(8) “Foreign conservator” means a conservator or a person with the powers of a conservator

of another jurisdiction.

(9) “Guardian” means a person appointed by the court as guardian, but excludes one who is a

guardian ad litem. A guardian shall make decisions regarding the ward’s health, education,

maintenance, and support.

(10) “Guardian ad litem” means a person licensed in the State of South Carolina in law, social

work, nursing, medicine, or psychology, or who as has completed training to the satisfaction of

the court, and who has been appointed by the court to advocate for the best interests of the

alleged incapacitated individual.

(11) “Guardianship proceeding” means a formal proceeding to determine if an adult is an

incapacitated individual or in which an order for the appointment of a guardian for an adult is

sought or has been issued.

(12) “Home state” means the state in which the alleged incapacitated individual was

physically present, including a period of temporary absence, for at least six consecutive months

immediately preceding the filing of a petition for the appointment of a guardian or protective

order; or, if none, the state in which the alleged incapacitated individual was physically present,

including a period of temporary absence, for at least six consecutive months ending with the six

months prior to the filing of the petition.

(13) “Incapacitated individual” means an individual who, for reasons other than minority, has

been adjudicated as incapacitated.

(14) “Incapacity” means the inability to effectively receive, evaluate, and respond to

information or make or communicate decisions such that a person, even with appropriate,

reasonably available support and assistance cannot:

(a) meet the essential requirements for his physical health, safety, or self-care,

necessitating the need for a guardian; or

(b) manage his property or financial affairs or provide for his support or for the

support of his legal dependents, necessitating the need for a protective order.

(15) “Less restrictive alternative” means the provision of support and assistance for an alleged

incapacitated individual.

(16) “Net aggregate amount” means the total sum of payments due to a minor or incapacitated

individual after subtracting all outstanding reimbursements and relevant deductions.

(17) “Party” means the alleged incapacitated individual, ward, protected person, petitioner,

guardian, conservator, or any other person allowed by the court to be a party in a guardianship

Comment [cw3]: New definition

Comment [cw4]: New definition

Comment [cw5]: New definition

7

proceeding or protective proceeding, including those listed in § 62-5-303(B)(4), § 62-5-

402(C)(2), and § 62-5-403(B)(4).

(18) “Person” means an individual, corporation, business trust, estate, trust, partnership,

Limited Liability Company, association, joint venture, government or governmental subdivision,

agency, or instrumentality, public corporation, or any other legal or commercial entity.

(19) “Protected person” means an individual for whom a conservator has been appointed or

other protective order has been issued.

(20) “Protective order” means an order appointing a conservator or relating to the

management of the property of:

(a) an incapacitated individual;

(b) a minor;

(c) a person who is confined, detained by a foreign power, or who has disappeared; or

(d) a person who is disabled and in need of a court order to create and establish a

special needs trust for such person’s benefit.

(21) “Protective proceeding” means a judicial proceeding in which a protective order is sought

or has been issued.

(22) “Record” means information that is inscribed on a tangible medium or that is stored in an

electronic or other medium and is retrievable in perceivable form.

(23) “Significant-connection state” means a state, other than the home state, with which the

alleged incapacitated individual has a significant connection other than mere physical presence

and in which substantial evidence concerning the alleged incapacitated individual is available.

Determination of whether the alleged incapacitated individual has a significant connection with a

particular state shall include consideration of the following factors:

(a) the location of the alleged incapacitated individual’s family and others required to

be notified of the guardianship proceeding or protective proceeding;

(b) the length of time the alleged incapacitated individual at any time was physically

present in the state and the duration of any absences;

(c) the location of the alleged incapacitated individual’s property; and

(d) the extent to which the alleged incapacitated individual has other ties to the state

such as voting registration, filing of state or local tax returns, vehicle registration, driver’s

license, social relationships, and receipt of services.

(24) “State” means a state of the United States, the District of Columbia, Puerto Rico, the

United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular

possession subject to the jurisdiction of the United States.

(25) “Support and assistance” includes:

(a) systems in place for the alleged incapacitated individual to make decisions in

advance or to have another person to act on his behalf, including, but not limited to,

having an agent under a durable power of attorney, a trustee under a trust, a

representative payee to manage social security funds, or a designated health care decision

maker under § 44-66-30; and

(b) reasonable accommodations that enable the alleged incapacitated individual to act

as the principal decision-maker, including, but not limited to, using technology and

devices; receiving assistance with communication; having additional time and focused

discussion to process information; providing tailored information oriented to the

comprehension level of the alleged incapacitated individual; and accessing services from

community organizations and governmental agencies.

Comment [cw6]: New definition

8

(26) “Ward” means an adult for whom a guardian has been appointed.

SECTION 62-5-102. Consolidation of proceedings.

When both guardianship proceedings and protective proceedings as to the same person are

commenced or pending in the same court, the proceedings may be consolidated.

SECTION 62-5-103. Facility of payment or delivery.

(A) A person under a duty to pay or deliver money or personal property to a minor or

incapacitated individual may perform this duty in amounts not exceeding a net aggregate amount

of fifteen thousand dollars ($15,000.00) each year by paying or delivering the money or property

to:

(1) a person having the care and custody of the minor or incapacitated individual with

whom the minor or incapacitated individual resides;

(2) a guardian of the minor or an incapacitated individual; or

(3) a financial institution incident to a deposit in a federally insured savings account

in the sole name of the minor or for the minor under the Uniform Gifts to Minors Act and

giving notice of the deposit to the minor.

(B) The facility of payment section does not apply if the person making payment or delivery

has actual knowledge that a conservator has been appointed or that a proceeding for appointment

of a conservator is pending. The persons, other than a financial institution under subsection

(A)(3) above, receiving money or property for a minor or incapacitated individual, serve as

fiduciaries subject to fiduciary duties, and are obligated to apply the money for the benefit of the

minor or incapacitated individual with due regard to:

(1) the size of the estate, the probable duration of the minority or incapacity, and the

likelihood that the minor or incapacitated individual, at some future time, may be able

fully to manage his affairs and his estate;

(2) the accustomed standard of living of the minor or incapacitated individual and

members of his household; and

(3) other funds or resources used or available for the support or any obligation to

provide support for the minor or incapacitated individual.

(C) The persons may not pay themselves except by way of reimbursement for out-of-pocket

expenses for goods and services necessary for the minor’s or incapacitated individual’s support.

Money or other property received on behalf of a minor or incapacitated individual may not be

used by a person to discharge a legal or customary obligation of support that may exist between

that person and the minor or incapacitated individual. Excess sums must be preserved for future

benefit of the minor or incapacitated individual, and any balance not used and property received

for the minor or incapacitated individual must be turned over to the minor when he attains

majority or is emancipated by court order; or, to the incapacitated individual when he has been

readjudicated as no longer incapacitated. Persons who pay or deliver in accordance with

provisions of this section are not responsible for the proper application of the money or personal

property. If the net aggregate amount exceeds fifteen thousand dollars ($15,000.00), a

conservatorship shall be required.

Comment [cw7]: Amount increased from $10,000 (suggestion from public comment).

9

(D) Any employer may fulfill his duties to a minor or incapacitated individual by delivering a

check to or depositing payment into an account in the name of the minor or incapacitated

employee.

SECTION 62-5-104. Director of Department of Mental Health or his designee may act as

conservator.

If a patient of a state mental health facility has no legally appointed conservator, the Director of

the Department of Mental Health or his designee, may receive and accept, for the use and benefit

of the patient, assets which may be due the patient by inheritance, gift, pension, or otherwise

with a net aggregate amount not exceeding fifteen thousand dollars ($15,000.00) in one calendar

year. The director or his designee may act as conservator for the patient and his endorsement or

receipt discharges the obligor for any assets received. Upon receipt, the director or his designee

shall apply the assets for the proper maintenance, use, and benefit of the patient. In the event the

patient dies leaving an unexpended balance of assets in the hands of the director or his designee,

the director or his designee shall apply the balance first to the funeral expenses of the patient, and

any balance remaining must be held by the director or his designee for a period of six months; if

within that period, the director or his designee is not contacted by the personal representative of

the deceased patient, the balance of the assets may be applied to the maintenance and medical

care account of the deceased patient. The director or his designee must, within thirty days

following the death of the patient, notify the court in the county in which the patient resided at

the time of admission to the Department’s facility of the death of the patient and provide a list of

any property belonging to the patient and held by the Department. Upon appointment of a

conservator for a patient of a state mental health facility, the Director shall deliver any assets of

the protected person to the conservator and provide an accounting of the management of those

assets.

SECTION 62-5-105. Authority to award costs and expenses; entitlement to compensation;

responsibility for costs and expenses.

(A) In a formal proceeding, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from

the assets of a ward or protected person who is the subject of a formal proceeding.

(B) If not otherwise compensated for services rendered, the court-appointed guardian ad litem, counsel for the alleged incapacitated individual, counsel for the minor, designated

examiner, is entitled to reasonable compensation, as determined by the court.

(C) Unless an order is entered by the court stating otherwise, petitioners are responsible for their own attorney’s fees and costs, as well as the other costs and expenses of the action.

SECTION 62-5-106. Responsibilities and duties of the guardian ad litem.

(A) The responsibilities and duties of a guardian ad litem include, but are not limited to:

(1) acting in the best interest of the alleged incapacitated individual;

(2) conducting an independent investigation to determine relevant facts and filing a

written report with recommendations at least forty-eight hours prior to the hearing, unless

excused or required earlier by the court. The investigation must include items listed in

Comment [cw8]: Amended to clarify that petitioners are responsible for their own fees.

10

subsections (a) through (i) and may also include items listed in subsections (j) through

(m), as appropriate or as ordered by the court:

(a) obtaining and reviewing relevant documents; The guardian ad litem shall

have access to the alleged incapacitated individual’s medical records, state and

federal tax records, financial records, public benefits records, and any other

relevant records. The guardian ad litem shall have the right to institute or

participate in discovery and in any proceedings on behalf of the alleged

incapacitated individual to the same extent as any other party to the action;

(b) meeting with the alleged incapacitated individual, at least once within

thirty days following appointment, or within such time as the court may direct;

(c) investigating the residence or proposed residence of the alleged

incapacitated individual;

(d) interviewing all parties;

(e) discerning the wishes of the alleged incapacitated individual;

(f) identifying less restrictive alternatives to guardianship and

conservatorship;

(g) reviewing a criminal background check on the proposed guardian or

conservator;

(h) reviewing a credit report on the proposed conservator;

(i) interviewing the person whose appointment is sought to ascertain:

(i) the proposed fiduciary’s knowledge of the fiduciary’s duties,

requirements, and limitations; and

(ii) the steps the proposed fiduciary intends to take or has taken to

identify and meet the needs of the alleged incapacitated individual;

(j) consulting with persons who have a significant interest in the welfare of

the alleged incapacitated individual or knowledge relevant to the case;

(k) contacting the Department of Social Services to investigate any action

concerning the alleged incapacitated individual or the proposed fiduciary;

(l) determining the financial capabilities and integrity of the proposed

conservator including, but not limited to:

(i) previous experience in managing assets similar to the type and value of the alleged incapacitated individual’s assets;

(ii) plans to manage the alleged incapacitated individual’s assets; and (iii) whether the proposed conservator has previously borrowed funds or received financial assistance or benefits from the alleged incapacitated

individual;

(m) interviewing any persons known to the guardian ad litem having

knowledge of the alleged incapacitated individual’s financial circumstances or the

integrity and financial capabilities of the conservator, or both, and reviewing

pertinent documents.

(3) advocating for the best interests of the alleged incapacitated individual by making

specific recommendations regarding resources as may be appropriate or available to

benefit the alleged incapacitated individual, the appropriateness of the appointment of a

guardian or conservator, and any limitations to be imposed;

Comment [cw9]: Separated “mandatory” and “suggested” items included in the GAL investigation (suggestion from Probate Judges).

Comment [cw10]: Removed the list of all the information/documents the GAL should have access to (list will be in the reporter’s comments and forms).

11

(4) avoiding conflicts of interest, impropriety, or self-dealing. A guardian ad litem

shall not accept or maintain appointment if the performance of his duties may be

materially limited by responsibilities to another person or by his own interests;

(5) participating in all court proceedings including discovery unless all parties waive

the requirement to appear or the court otherwise excuses participation;

(6) filing with the court and delivering to each party a copy of the guardian ad litem’s

report; and

(7) moving for any necessary temporary relief to protect the alleged incapacitated

individual from abuse, neglect, abandonment, or exploitation, or to address other

emergency needs of the alleged incapacitated individual.

(B) Notes of a guardian ad litem are exempt from subpoenas.

(C) The report of the guardian ad litem shall include all relevant information obtained in his

investigation. The report shall contain facts including:

(1) the date and place of the meeting with the alleged incapacitated individual;

(2) a description of the alleged incapacitated individual;

(3) known medical diagnoses of the alleged incapacitated individual including the

nature, cause, and degree of the incapacity and the basis for the findings;

(4) description of the condition of the alleged incapacitated individual’s current place

of residence including address and factors affecting safety;

(5) identification of persons with significant interest in the welfare of the alleged

incapacitated individual;

(6) any prior action by the Department of Social Services or law enforcement

concerning the alleged incapacitated individual or the proposed fiduciary of which the

guardian ad litem is aware;

(7) a statement as to any prior relationship between the guardian ad litem and the

petitioner, alleged incapacitated individual, or other party to the action;

(8) a description of the current care and treatment needs of the alleged incapacitated

individual; and

(9) any other information relevant to the matter.

(D) The report shall contain recommendations including:

(1) whether a guardian or conservator is needed;

(2) the propriety and suitability of the proposed fiduciary after consideration of his

geographic location, familial or other relationship, ability to carry out the power and

duties of appointment, commitment to promoting the welfare of the alleged incapacitated

individual, financial capabilities and integrity of the proposed conservator, potential

conflicts of interests, wishes of the alleged incapacitated individual, and

recommendations of the relatives of the alleged incapacitated individual;

(3) approval or disapproval by the alleged incapacitated individual concerning the

proposed fiduciary;

(4) an evaluation of the future care and treatment needs of the alleged incapacitated

individual;

(5) if there is a proposed residential plan for the alleged incapacitated individual,

whether that plan is in the best interest of the alleged incapacitated individual;

(6) a recommendation regarding any rights in § 62-5-304A that should be retained by

the alleged incapacitated individual;

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(7) whether the matter should be heard in a formal hearing even if all parties are in

agreement; and

(8) any other recommendations relevant to the matter.

(E) The court in its discretion may extend or limit the responsibilities or authority of the

guardian ad litem.

SECTION 62-5-107. Impact on testamentary capacity.

Unless an order of the court specifies otherwise, a finding of incapacity is not a determination

that the protected person or ward lacks testamentary capacity or the capacity to create, amend, or

revoke a revocable trust.

SECTION 62-5-108. Emergency or temporary relief.

(A) Emergency orders without notice, emergency hearings, duration, security.

(1) Emergency orders without notice shall not be issued unless the moving party files

a summons, motion for emergency order with supporting affidavit(s), verified pleading,

notice of emergency hearing, and any other document required by the court. The verified

pleading, motions, and affidavits shall set forth specific facts supporting the allegation

that an immediate and irreparable injury, loss, or damage will result before notice can be

served on adverse parties and a hearing held pursuant to subsection (B).

(a) If emergency relief is required to protect the welfare of an alleged

incapacitated individual, the moving party must present an affidavit from a

physician who has performed an examination within thirty days prior to the filing

of the action, a motion for the appointment of counsel if counsel has not been

retained, and a motion for the appointment of a proposed qualified individual to

serve as guardian ad litem;

(b) If the emergency relief requested is an order for:

(i) appointment of a temporary guardian, conservator, guardian ad

litem, or other fiduciary; or

(ii) the removal of an existing guardian, conservator, or other

fiduciary, and the appointment of a substitute, the moving party must

submit evidence of the suitability and creditworthiness of the proposed

fiduciary.

(2) If the motion for an emergency order is not granted, the moving party may seek

temporary relief after notice pursuant to subsection (B) or proceed to a final hearing.

(3) If the motion for an emergency order is granted, the date and hour of its issuance

shall be endorsed on the order. The date and time for the emergency hearing shall be

entered on the notice of hearing and it shall be no later than ten days from the date of the

order or as the court determines is reasonable for good cause shown.

(4) The moving party shall serve all pleadings on the alleged incapacitated individual,

ward or protected person and other adverse parties immediately after issuance of the

emergency order.

(5) If the moving party does not appear at the emergency hearing, the court may

dissolve the emergency order without notice.

Comment [cw11]: Language was added because of changes to § 62-5-303C and § 62-5-403C. The court will

receive a recommendation on whether it should allow the hearing to be waived or not. § 62-5-303C and § 62-5-403C have been

amended to not require a hearing if there is consent.

Comment [cw12]: Removed the requirement that there must be a proposed order submitted due to concerns over a pro se litigants and the previous requirement (suggestion from Probate Judges).

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(6) Evidence admitted at the hearing may be limited to pleadings and supporting

affidavits. Upon good cause shown or at the court’s direction, additional evidence may

be admitted.

(7) On two days’ notice to the party who obtained the emergency order, an adverse

party may file a motion for dissolution or modification with supporting affidavits. The

court shall hear and determine the motion as expeditiously as possible and may

consolidate motions.

(8) No emergency order for conservatorship shall issue except upon the court

receiving adequate assurances the assets will be protected, which may include giving of

security by the moving party in a sum the court deems proper for costs and damages

incurred by any party who without just cause is aggrieved as a result of the emergency

order. A surety upon a bond or undertaking submits to the jurisdiction of the court.

(9) The court may take whatever actions it deems necessary to protect assets,

including, but not limited to, issuing an order to freeze accounts.

(B) Temporary orders and temporary hearings with notice.

(1) No temporary order shall be issued without notice to the adverse party.

(2) An order for a temporary hearing shall not be issued unless the moving party files

a summons, motion for temporary hearing with affidavits, and a petition or other

appropriate pleading setting forth specific facts supporting the allegation that immediate

relief is needed during the pendency of the action, and notice of temporary hearing.

(a) If temporary relief is required to protect the welfare of an alleged

incapacitated individual, in addition to the requirements set forth in subsection

(B)(2), the moving party must present an affidavit from a physician who has

performed an examination within forty-five days prior to the filing of the action, a

motion for the appointment of counsel if counsel has not been retained, and a

motion for appointment of a proposed qualified individual to serve as guardian ad

litem;

(b) If the temporary relief requested is an order for:

(i) appointment of a temporary guardian, conservator, guardian ad

litem, or other fiduciary; or

(ii) removal of an existing guardian, conservator or other fiduciary,

and the appointment of a substitute, the moving party must submit

evidence of the suitability and creditworthiness of the proposed fiduciary.

(3) If the motion for temporary relief is not granted, the action will remain on the

court docket for a final hearing.

(4) If the motion for temporary relief is granted, the court shall enter a date and time

for the temporary hearing on the notice of hearing.

(5) The moving party shall serve pleadings on the alleged incapacitated individual,

ward or protected person, and other adverse parties. Service shall be made no later than

ten days prior to the temporary hearing or as the court determines is reasonable for good

cause shown.

(6) Temporary orders resulting from the hearing shall expire six months from the date

of issuance unless otherwise specified in the order.

(C) In an emergency, the court may exercise the power of a guardian with or without notice if

the court makes emergency findings as required by the Adult Heath Care Consent Act § 44-66-

30(B).

Comment [cw13]: Amended language clarifies that a surety is only required in an emergency order for conservatorship.

Comment [cw14]: Amended to give the court the authority to protect accounts (ex. freeze accounts). This was a suggestion from the Probate Judges.

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(D) A hearing concerning the need for appointment of a permanent guardian must be a

hearing de novo as to all issues before the court.

PART 2.

JURISDICTION

SECTION 62-5-201. Jurisdiction.

Exclusive jurisdiction of the court is set forth in § 62-1-302 and § 62-5-701 as to appointment of

a guardian or issuance of a protective order. Pursuant to the court’s authority to appoint a

guardian, and § 62-5-309, the guardian has the authority to maintain custody of the person of the

ward and to establish the ward’s place of abode, unless otherwise specified in the court’s order.

The court does not have jurisdiction over the care, custody, and control of the person of a minor,

but does have jurisdiction over the property of a minor if the court determines that the minor

owns property that requires management or protection.

PART 3.

GUARDIANS OF INCAPACITATED INDIVIDUALS

SECTION 62-5-301. Testamentary nomination of guardian for incapacitated individual.

(A) The parent of an alleged incapacitated individual may by will nominate a guardian for an

alleged incapacitated individual. A testamentary nomination by a parent gives the nominee

priority pursuant to § 62-5-308(B) in any proceeding to determine incapacity and appoint a

guardian. A testamentary nomination by a parent gives priority to the nominee to make health

care decisions for the alleged incapacitated individual pursuant to § 44-66-30(A)(3). Such

nomination creates priority under § 62-5-308(B) and § 44-66-30(A)(3) when the will is

informally or formally probated, if prior thereto, both parents are deceased or the surviving

parent is adjudged incapacitated. If both parents are deceased, the nomination by the parent who

died later has priority unless it is terminated by the denial of probate in formal proceedings.

(B) The spouse of an alleged incapacitated individual may by will nominate a guardian for an

alleged incapacitated individual. A testamentary nomination by a spouse gives the nominee

priority pursuant to § 62-5-308(B) in any proceeding to determine incapacity and appoint a

guardian. A testamentary nomination by a spouse gives priority to the nominee to make health

care decisions for the alleged incapacitated individual pursuant to § 44-66-30(A)(3). Such

nomination creates priority under § 62-5-308(B) and § 44-66-30(A)(3) when the will is

informally or formally probated. An effective nomination by a spouse has priority over a

nomination by a parent unless the nomination is terminated by the denial of probate in formal

proceedings.

(C) This State shall recognize a testamentary nomination under a will probated at the

testator’s domicile in another state.

SECTION 62-5-302. Venue.

Comment [cw15]: This is in current code but was not included in the first draft. The Task Force felt that it needed to be specifically stated.

Comment [S16]: Amended to clarify, specifically in cases involving minors, that the Probate Court retains jurisdiction to decide who should be guardian.

15

Venue for guardianship proceedings is in the place where the alleged incapacitated individual or

ward resides or is present. If the alleged incapacitated individual or ward is committed to an

institution pursuant to an order of a court of competent jurisdiction, venue is also in the county in

which that court sits.

SECTION 62-5-303. Procedure for determination of incapacity and for court appointment of a

guardian.

(A) Any person seeking a finding of incapacity, appointment of a guardian, or both, must file

a summons and petition. When more than one petition is pending in the same court, the

proceedings may be consolidated.

(B) The petition shall set forth, to the extent known or reasonably ascertainable, the following

information:

(1) interest of the petitioner;

(2) name, age, current address, and contact information of the alleged incapacitated

individual, who shall be designated as a respondent;

(3) physical location of the alleged incapacitated individual during the six-month

period immediately preceding the filing of the summons and petition; and, if the alleged

incapacitated individual w