Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
A petition for the appointment of a guardian, a conservator, or both, may be filed by the person alleged to need protection, an interested relative, the individual or facility that is responsible or has assumed responsibility for the person’s care or custody, by the individual or entity that the person has nominated as guardian or conservator, or by any other interested person, including the Department of Human Services.
Notice of Hearing:
Upon the filing of the petition and evaluation report, the court shall promptly issue a notice scheduling a hearing to take place within sixty days. The person alleged to need protection shall be personally served with copies of the notice, the petition, and the evaluation report not less than fourteen days before the hearing. Also, at least 14 days before the hearing, the petitioner shall mail copies of the notice and petition to all entities and individuals age ten or older whose names and post office addresses appear in the petition. The notice must include a brief statement of the nature, purpose, and legal effect of the appointment of a guardian or conservator, and shall inform the person alleged to need the protection of the right to appear at the hearing and to object to the proposed appointment.
Evaluations, Examinations, and Interviews:
The petition must include a report evaluating the condition of the person alleged to need protection. The report must contain, to the best information and belief of its signatories:
(1) A description of the nature, type, and extent of the person’s incapacity, including the person’s specific cognitive and functional limitations;
(2) Evaluations of the person’s mental and physical condition and, where appropriate, educational condition, adaptive behavior, and social skills;
(3) If the appointment of a guardian is requested, a description of the services, if any, currently being provided for the person’s health, care, safety, habilitation, or therapeutic needs and a recommendation as to the most suitable living arrangement and, if appropriate, treatment or habilitation plan and the reasons therefor;
(4) If the appointment of a conservator is requested, a description of the services, if any, currently being provided for the management of the person’s estate and financial affairs;
(5) An opinion as to whether the appointment of a guardian or conservator is necessary, the type and scope of the guardianship or conservatorship needed, and the reasons therefore;
(6) If the petition states that the incapacity of the person alleged to need protection will prevent attendance at the hearing, an opinion as to whether such attendance would be detrimental to the person’s health, care or safety;
(7) A statement as to whether the person alleged to need protection is on any medications that may affect the person’s actions, demeanor and participation at the hearing;
(8) The signature of a physician, psychiatrist or licensed psychologist, and the signatures of any other individuals who made substantial contributions toward the report’s preparation; and
(9) The date of any assessment or examination upon which the report is based and if any of the assessments or examinations were performed more than three months prior to the date of the filing of the petition, a statement by a physician, psychiatrist, or licensed psychologist that there has been no material change in the condition of the person alleged to need protection since the dates that such assessments or examinations were performed.
The court has the authority to permit the petition to be filed without an evaluation report. If such leave is granted, the court shall order the appropriate assessments or examinations and shall order that a report be prepared and filed with the court. Also, no evaluation report is necessary if the petition has been brought on the basis that the person alleged to need protection is an absentee.
Prior to the hearing on the petition, the petitioner shall file a statement of the financial resources of the person alleged to need protection which shall, to the extent known, list the approximate value of the real and personal estate and the anticipated annual gross income and other receipts.
Adjudication and Disposition:
A guardian may be appointed for an individual whose ability to respond to people, events, and environments is so impaired that her or she is unable to meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian. Any individual who has sufficient capacity to form a preference may at any time nominate any individual or entity to act as his guardian or conservator. The nomination may be made in writing, by an oral request to the court, or may be proved by any other competent evidence. The court shall appoint the individual or entity so nominated if the nominee is otherwise eligible to act and would serve in the best interests of the protected person. If a person alleged to be in need of protection has designated an individual to serve as guardian or conservator under a validly executed legal instrument, including a power of attorney, and the court does not appoint the designated individual, the court shall issue written findings of fact and conclusions of law as to why the designated individual was not appointed.
In the absence of an effective nomination by the protected person, the court shall appoint as guardian or conservator the individual or entity that will act in the protected person’s best interests. In making that appointment, the court shall consider the proposed guardian’s or conservator’s geographic location, familial or other relationship with the protected person, ability to carry out the powers and duties of the office, commitment to promoting the protected person’s welfare, any potential conflicts of interest, and the recommendations of the spouse, the parents or other interested relatives, whether made by will or otherwise. The court may appoint more than one guardian or conservator and need not appoint the same individual or entity to serve as both guardian and conservator.
S.D. Codified Laws § 29A-5-305
S.D. Codified Laws § 29A-5-308
S.D. Codified Laws § 29A-5-306
S.D. Codified Laws § 29A-5-307
S.D. Codified Laws § 29A-5-304