29A-5-108. Filing petition for appointment--Jurisdiction.

A petition for the appointment of a guardian or conservator shall be filed in the county in which the minor either resides or is present or, if the minor has been admitted to a facility pursuant to an order of court, in the county in which that court is located. If the minor neither resides in nor is present in this state, a petition for the appointment of a conservator shall be filed in a county in which the minor has property or in the county having jurisdiction of a decedent's estate in which the minor has an interest. The court of the county in which the proceeding is first commenced shall have exclusive jurisdiction to decide the petition unless that court determines that a transfer of venue would be in the best interests of the minor.

Source: SL 1993, ch 213, § 8; SDCL § 30-36-8; SL 1995, ch 167, § 181; SL 2011, ch 135, § 503.

29A-5-109. Transfer of jurisdiction following appointment.

Following the appointment of a guardian or conservator, the court with jurisdiction over the proceeding may order the transfer of jurisdiction to another county in this state or to another state if it appears to the court by reason of the residence or location of the minor, the location of a major portion of the property, or the residence of the guardian or conservator, that the interests of the minor will be best served by a transfer.

Source: SL 1993, ch 213, § 9; SDCL § 30-36-9; SL 1995, ch 167, § 181; SL 2011, ch 135, § 503.1.

29A-5-110. Appointment of individual or entity--Qualifications.

Any adult individual may be appointed as a guardian, a conservator, or both, if capable of providing an active and suitable program of guardianship or conservatorship for the minor or protected person, and if not employed by any public or private agency, entity, or facility that is providing substantial services or financial assistance to the minor or protected person. The court may waive the prohibition on appointing an individual as guardian or conservator because of the individual's employment if the court finds the appointment is in the best interest of the minor or protected person.

Any public agency or nonprofit corporation may be appointed as a guardian, a conservator, or both, if it is capable of providing an active and suitable program of guardianship or conservatorship for the minor or protected person, and if it is not providing substantial services or financial assistance to the minor or protected person.

Any bank or trust company authorized to exercise trust powers or to engage in trust business in this state may be appointed as a conservator if it is capable of providing a suitable program of conservatorship for the minor or protected person.

The Department of Human Services may be appointed as a guardian, a conservator, or both, for individuals under its care or to whom it is providing services or financial assistance, but such appointment may only be made if there is no individual, nonprofit corporation, bank or trust company, or other public agency that is qualified and willing to serve.

No individual or entity, other than a bank or trust company, whose only interest is that of a creditor, is eligible for appointment as either a guardian or conservator.

No individual who has been convicted of a felony is eligible for appointment as a guardian or conservator unless the court finds appointment of the person convicted of a felony to be in the best interests of the person for whom the guardianship or conservatorship is sought. As part of the best interest determination, the court shall consider the nature of the offense, the date of offense, and the evidence of the proposed guardian's or proposed conservator's rehabilitation.

A person, except for a financial institution or its officers, directors, employees, or agents, or a trust company, who has been nominated for appointment as a guardian or conservator, shall obtain an Interstate Identification Index criminal history record check and a record check of South Dakota state court civil judgments for abuse, neglect, or exploitation of an elder or adult with a disability. The nominee shall file the results of these record checks with the court at least ten days prior to the appointment hearing date, unless waived or modified by the court for good cause shown by affidavit filed simultaneously with the petition for appointment.

The judge may not sign an order appointing a guardian or conservator until the record check results have been filed with the court and reviewed by the judge, and a certificate of completion of the training curricula required under § 29A-5-119 has been issued by the State Bar of South Dakota for the person being appointed and filed with the court. The record check results, or the lack thereof, shall be certified by affidavit. The court may not require a record check or a certificate of completion of training required under § 29A-5-119 upon the application of a petitioner for a temporary guardianship or temporary conservatorship. The court may waive the record check or the certificate of completion of training required under § 29A-5-119 for good cause shown.

Source: SL 1993, ch 213, § 10; SDCL § 30-36-10; SL 1995, ch 167, § 181; SL 2016, ch 120, § 39; SL 2017, ch 230 (Ex. Ord. 17-1), § 31, eff. Apr. 13, 2017; SL 2021, ch 121, § 1.

29A-5-111. Filing of acceptance and bond--Amount of bond--Notice of nonrenewal.

The appointment of a guardian or conservator does not become effective nor may letters of guardianship or conservatorship issue until the guardian or conservator has filed an acceptance of office and any required bond.

The court may not require the filing of a bond by a guardian except for good cause shown.

The court shall determine whether the filing of a bond by a conservator is necessary. In determining the necessity for or amount of a conservator's bond, the court shall consider:

(1)    The value of the personal estate and annual gross income and other receipts within the conservator's control;

(2)    The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;

(3)    Whether an order has been entered waiving the requirement that accountings be filed and presented or permitting accountings to be filed less frequently than annually;

(4)    The extent to which the income and receipts are payable directly to a facility responsible for or which has assumed responsibility for the care or custody of the minor or protected person;

(5)    Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required;

(6)    Whether the conservator was appointed pursuant to a nomination which requested that bond be waived; and

(7)    Any other factors which the court deems appropriate.

Any required bond shall be with such surety and in such amount and form as the court may order. The court may order additional bond or reduce bond whenever it considers such modification to be in the best interests of the minor, the protected person, or the estate.

The surety or sureties of the bond must immediately serve notice to the court and to the minor, the protected person, or the estate if the bond is not renewed by the guardian or conservator.

Source: SL 1993, ch 213, § 11; SL 1994, ch 233, § 2; SDCL § 30-36-11; SL 1995, ch 167, § 181; SL 2016, ch 120, § 40.

29A-5-112. Action for breach of bond--Time limit.

In case of a breach of any condition on a guardian's or conservator's bond, an action may be maintained by any interested person for the use and benefit of the minor, the protected person, or the estate. However, no action may be maintained against the sureties on a bond unless such action is filed within four years after the guardian's or conservator's discharge or removal or within four years from the date the order surcharging the guardian or conservator becomes final, whichever is later.

Source: SL 1993, ch 213, § 12; SDCL 30-36-12; SL 1995, ch 167, § 181.

29A-5-113. Designation of agent for non-resident guardian or conservator.

A guardian or conservator who is or who later becomes a nonresident of this state shall file with the clerk of courts in the county in which the proceeding is pending a designation of an agent residing in this state to accept service of process. Such filing shall be made promptly following the appointment or removal from this state.

Source: SL 1993, ch 213, § 13; SDCL 30-36-13; SL 1995, ch 167, § 181.

29A-5-114. Petition for appointment by guardian or conservator appointed in another state.

A guardian, conservator or like fiduciary appointed in another state may be appointed as a guardian or conservator in this state upon presentation of a petition therefor, proof of appointment, and a certified copy of such portion of the court record in the other state as the court in this state may specify. Notice of hearing on any such petition, together with a copy of the petition, shall be mailed at least fourteen days prior to the hearing to the minor, if age ten or older, to the protected person, and to the individuals and entities that would be entitled to notice if the regular procedures for appointment of a guardian or conservator were applicable. The court shall make the appointment unless it concludes that the appointment would not be in the minor's or protected person's best interest. Upon the filing of an acceptance of office and any required bond, the appropriate letters of guardianship or conservatorship shall issue. Within fourteen days following an appointment, the guardian or conservator shall mail a copy of the order of appointment to the minor, if age ten or older, to the protected person, and to all individuals and entities given notice of the petition. The mailing made to and on behalf of the protected person shall include a brief statement of rights to seek termination or modification.

Source: SL 1993, ch 213, § 14; SDCL 30-36-14; SL 1995, ch 167, § 181.

29A-5-115. Payment or delivery to nonresident conservator or like fiduciary--Proof of appointment.

Any individual or entity indebted to a minor or protected person or having possession of a minor's or protected person's personal property, whether tangible or intangible, including an instrument evidencing a debt, stock, or right of action, may pay or deliver it to a conservator of the estate or like fiduciary appointed in another state upon presentation of proof of appointment and an affidavit stating that no conservatorship proceeding relating to the minor or protected person is pending in this state, and that the nonresident conservator or like fiduciary is entitled to payment or delivery.

Source: SL 1993, ch 213, § 15; SDCL 30-36-15; SL 1995, ch 167, § 181.

29A-5-116. Compensation of guardian, conservator, attorneys, and other appointed individuals.

Any guardian, conservator, attorney for any guardian or conservator and the attorney for the minor or person alleged to need protection, and any other individuals appointed by the court in connection with a guardianship or conservatorship proceeding, are entitled to reasonable compensation from the estate, including reimbursement for costs advanced. The court may also award reasonable compensation to any attorney whose services resulted in an order that was beneficial to the minor, the protected person, or the estate.

Source: SL 1993, ch 213, § 16; SDCL 30-36-16; SL 1995, ch 167, § 181.

29A-5-117. Appointment of attorney, guardian ad litem, or court representative.

Nothing in this chapter precludes the appointment of an attorney, guardian ad litem, or court representative if the court determines that such an appointment is necessary.

Source: SL 1993, ch 213, § 17; SDCL 30-36-17; SL 1995, ch 167, § 181.

29A-5-118. Effect--Appointment--Guardian--Conservator--Minor--Protected Person.

The appointment of a guardian or conservator of a protected person does not constitute a general finding of legal incompetence unless the court so orders, and the protected person shall otherwise retain all rights which have not been granted to the guardian or conservator, with the exception of the ability to create an agency and confer authority on another person to do any act that the protected person might do, pursuant to § 59-2-1. Unless prior authorization of the court is first obtained, a guardian or conservator may not change the residence of the minor or protected person to another state, terminate or consent to a termination of the minor's or protected person's parental rights, initiate a change in the minor's or protected person's marital status, or revoke or amend a durable power of attorney of which the protected person is the principal, except as provided in § 59-7-11.

Source: SL 1993, ch 213, § 18; SDCL § 30-36-18; SL 1995, ch 167, § 181; SL 2016, ch 120, § 37; SL 2020, ch 214, § 53.

29A-5-119. Training curricula for persons appointed as guardians and conservators.

The State Bar of South Dakota shall prepare and approve training curricula for persons appointed as guardians and conservators. The training curricula shall include:

(1)    The rights of minors and protected persons under this chapter and under the laws of the United States generally;

(2)    The duties and responsibilities of guardians and conservators;

(3)    Reporting requirements;

(4)    Least restrictive options in the areas of housing, medical care, and psychiatric care; and

(5)    Resources to assist guardians and conservators in fulfilling their duties.

Each person appointed by the court to be a guardian or conservator before July 1, 2021, shall complete the training curricula within four months after July 1, 2021. A person may not be appointed by the court as a guardian or conservator on or after July 1, 2021, until the person completes the training curricula.

Source: SL 2016, ch 120, § 38; SL 2021, ch 121, § 2.

29A-5-201. Appointment of guardian or conservator of minor.

A guardian or conservator of a minor may be appointed upon petition, the filing of a statement of financial resources, and after notice and hearing as provided in this section and §§ 29A-5-202 to 29A-5-210, inclusive. Upon an appointment, the guardianship or conservatorship status continues until terminated, without regard to the location of the guardian, the conservator, or the minor.

Source: SL 1993, ch 213, § 19; SDCL 30-36-19; SL 1995, ch 167, § 181.

29A-5-202. Nomination of guardian or conservator by minor or parent.

A minor, age fourteen or older, may nominate any individual or entity to act as his guardian or conservator. The nomination may be made in writing or by an oral request to the court. The court may appoint the individual or entity so nominated if the nominee is otherwise eligible to act and would serve in the minor's best interests. However, no nomination by a minor may supersede a previous appointment by the court.

A parent of an unmarried minor may nominate a guardian or conservator of the minor by will or other signed writing. Absent an effective nomination by the minor, the court may appoint a parental nominee if both parents are dead and the nominee is otherwise eligible to act and would serve in the minor's best interests. In the event that both parents have made nominations, the court shall select the nominee which it believes best qualified. A parental nomination shall be effective whether or not the minor was living at the time of the making of the will or other signed writing. However, no parental nomination may supersede a previous appointment by the court.

Absent an effective nomination by a minor, age fourteen or older, or deceased parent, the court shall appoint as guardian or conservator the individual or entity that will act in the minor'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 minor, ability to carry out the powers and duties of the office, commitment to promoting the minor's welfare, any potential conflicts of interest, the recommendations of the parents or other interested relatives, and the wishes of the minor if the minor is of sufficient age to form an intelligent preference. 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.

Source: SL 1993, ch 213, § 20; SDCL 30-36-20; SL 1995, ch 167, § 181.

29A-5-203. Who may file petition for appointment--Contents of petition.

A petition for the appointment of a guardian, a conservator, or both, may be filed by the minor, by an interested relative, by the individual or facility that is responsible for or has assumed responsibility for the minor's care or custody, by the individual or entity that the minor has nominated as guardian or conservator, or by any other interested person, including the department of human services or the department of social services.

A petition for the appointment of a guardian, a conservator, or both, shall state the petitioner's name, place of residence, post office address, relationship to the minor, and shall, to the extent known as of the date of filing, state the following with respect to the minor and the relief requested:

(1)    The minor's name, date of birth, place of residence or location, and post office address;

(2)    The names and post office addresses of the minor's spouse, children, parents, and brothers and sisters, or if none, the minor's nearest known relatives who would be entitled to succeed to the minor's estate by intestate succession;

(3)    The name, place of residence or location, and post office address of the individual or facility that is responsible for or has assumed responsibility for the minor's care or custody;

(4)    The reasons why guardianship or conservatorship is requested and the interest of the petitioner in the appointment;

(5)    The name, post office address and, if the proposed guardian or conservator is an individual, the individual's age, occupation and relationship to the minor;

(6)    The name, post office address and, if the minor is age fourteen or older and has nominated a guardian or conservator who is an individual, the individual's age, occupation and relationship to the minor;

(7)    The name, post office address and, if a deceased parent has nominated a guardian or conservator who is an individual, the individual's age, occupation and relationship to the minor; and

(8)    The name and post office address of any guardian or conservator currently acting, whether in this state or elsewhere.

Source: SL 1993, ch 213, § 21; SDCL 30-36-21; SL 1995, ch 167, § 181.

29A-5-204. Notice of appointment hearing--Exception.

Upon the filing of the petition, the court shall issue a notice fixing the date, hour and location for a hearing to take place within sixty days.

At least fourteen days prior to the hearing, the minor, if age ten or older, shall be personally served with a copy of the notice and petition, and the petitioner shall mail a copy 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 court may order that no notice of hearing need be given if all persons entitled to notice waive notice of hearing and the court determines that it would be in the best interests of the minor and the minor's estate to proceed without notice.

Source: SL 1993, ch 213, § 22; SDCL 30-36-22; SL 1995, ch 167, § 181; SL 1999, ch 146, § 1.

29A-5-205. Court appointment of attorney to protect minor's interest--Investigation by court-appointed representative.

The court may appoint an attorney for the minor, either upon the filing of the petition or at any time thereafter, if it concludes that an appointment is necessary to protect the minor's interests, and the court may appoint a court representative to make such investigations as the court shall order if it concludes that an appointment is necessary for a reasonably informed decision on the petition.

Source: SL 1993, ch 213, § 23; SDCL 30-36-23; SL 1995, ch 167, § 181.

29A-5-206. Filing of minor's financial statement.

Prior to the hearing on the petition, the petitioner shall file a statement of the financial resources of the minor 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.

Source: SL 1993, ch 213, § 24; SDCL 30-36-24; SL 1995, ch 167, § 181; SL 2006, ch 153, § 3.

29A-5-207. Certain documents to be sealed--Available to certain persons.

The statement of financial resources, any written report of the court representative, and any accountings or inventories made by the guardian or conservator shall be sealed upon filing and shall not be made a part of the public record but shall be available to the court, to the minor, to the petitioner, to the court representative, to their attorneys, to abstractors or employees of abstractors licensed pursuant to chapter 36-13, to employees and agents of title insurance companies licensed pursuant to chapter 58-25, to attorneys who are licensed to practice law pursuant to chapter 16-16 and who are representing a relative of the minor within the third degree of kinship, to the spouse of the minor, to joint tenants of the minor, to any intestate heirs of the minor which relationship shall be established by sworn affidavit, and to such other interested persons as the court may order upon a showing of the need therefor.

Source: SL 1993, ch 213, § 25; SDCL 30-36-25; SL 1995, ch 167, § 181; SL 1999, ch 146, § 2.

29A-5-208. Hearing--Convenience--Participants--Determination of appointment--Findings and conclusions.

The hearing on the petition to appoint a guardian or conservator shall be held at such convenient place as the court directs, including the place where the minor is located. The court may close the hearing to the public. The minor, if age ten or older, and the proposed guardian or conservator shall attend the hearing except for good cause shown. Any individual or entity may apply for permission to participate at the hearing, and the court shall grant the request if reasonably satisfied that the applicant's participation would be in the minor's best interests.

The determination as to whether a guardian or conservator will be appointed is for the court alone to decide and may only be ordered if in the minor's best interests. In making that determination, the court shall consider the suitability of the proposed guardian or conservator, the minor's current or proposed living arrangements, the extent to which the minor has money or other property requiring management or protection, the availability of less restrictive alternatives, the extent to which it is necessary to protect the minor from neglect, exploitation, or abuse, and if applicable, the minor's need for habilitation or therapeutic treatment.

The court shall make findings of fact and conclusions of law in support of any orders entered at the hearing if requested by the minor, by the minor's attorney, or by any other interested person.

Upon the filing of an acceptance of office and any required bond, letters of guardianship, conservatorship, or both, shall issue.

Source: SL 1993, ch 213, § 26; SDCL 30-36-26; SL 1995, ch 167, § 181.

29A-5-209. Mailing copy of appointment order.

The guardian or conservator shall mail a copy of the order of appointment within fourteen days following its entry to the minor, if age ten or older, and to all individuals and entities given notice of the petition.

Source: SL 1993, ch 213, § 27; SDCL 30-36-27; SL 1995, ch 167, § 181.

29A-5-210. Appointment of temporary guardian or conservator.

The court may appoint a temporary guardian or conservator, or both, under this section and §§ 29A-5-201 to 29A-5-209, inclusive, upon a showing that an immediate need exists and that an appointment would be in the minor's best interests.

A temporary guardian or conservator shall have only those powers and duties which are specifically set forth in the order of appointment, and in no event may a temporary guardian or conservator be appointed for more than six months.

An appointment of a temporary guardian or conservator shall be made upon such notice and subject to such conditions as the court may order, except that reasonable notice of hearing shall be given to the minor, if age ten or older, unless there is a showing that such delay would not be in the minor's best interests.

A temporary guardian or conservator shall mail a copy of the order of appointment within five days following its entry to the minor, if age ten or older, and to all individuals and entities that would be entitled to notice of hearing on a petition for a regular appointment.

Source: SL 1993, ch 213, § 28; SDCL 30-36-28; SL 1995, ch 167, § 181.

29A-5-301. Appointment of guardian or conservator of protected person.

A guardian or conservator of a protected person may be appointed upon petition, the filing of an evaluation report and statement of financial resources, and after notice and hearing as provided in this section and §§ 29A-5-302 to 29A-5-315, inclusive. Upon an appointment, the guardianship or conservatorship status continues until terminated, without regard to the location of the guardian, the conservator, or the protected person.

Source: SL 1993, ch 213, § 29; SDCL 30-36-29; SDCL 30-36-29; SL 1995, ch 167, § 181.

29A-5-302. Appointment of guardian where capacity lacking to meet requirements for health, care, safety, habilitation, or therapeutic needs.

A guardian may be appointed for an individual whose ability to respond to people, events, and environments is impaired to such an extent that the individual lacks the capacity to meet the essential requirements for his health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian. A guardian for a minor may be appointed under this part if the minor meets the requirements of this section without regard to age and the minor's need for guardianship will likely continue into his adult years.

Source: SL 1993, ch 213, § 30; SDCL 30-36-30; SL 1995, ch 167, § 181.

29A-5-303. Persons for whom conservator may be appointed.

A conservator may be appointed for an individual whose ability to respond to people, events and environments is impaired to such an extent that the individual lacks the capacity to manage property or financial affairs or to provide for his support or the support of legal dependents without the assistance or protection of a conservator. A conservator may be appointed for an absentee whose estate or financial affairs require the attention, supervision and care of a conservator. A conservator for a minor may be appointed under this part if the minor meets the requirements of this section without regard to age and the minor's need for conservatorship will likely continue into his adult years.

Source: SL 1993, ch 213, § 31; SDCL 30-36-31; SL 1995, ch 167, § 181.

29A-5-304. Nomination of guardian or conservator by protected person--Appointment in absence of effective nomination--Designated individual--Multiple appointments.

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.

Source: SL 1993, ch 213, § 32; SDCL 30-36-32; SL 1995, ch 167, § 181; SL 2023, ch 95, § 1.

29A-5-305. Who may file petition--Contents of petition.

A petition for the appointment of a guardian, a conservator, or both, may be filed by the person alleged to need protection, by an interested relative, by 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.

The petition shall state the petitioner's name, place of residence, post office address, and relationship to the person alleged to need protection, and shall, to the extent known as of the date of filing, state the following with respect to the person alleged to need protection and the relief requested:

(1)    The person's name, date of birth, place of residence or location, and post office address or, if it is alleged that the person is an absentee, the person's last known residence and post office address;

(2)    The names and post office addresses of the person's nearest relatives, in the following order:

(a)    The spouse and children, if any; or if none

(b)    The parents and brothers and sisters, if any; or if none

(c)    The nearest known relatives who would be entitled to succeed to the person's estate by intestate succession;

(3)    The name, place of residence or location, and post office address of the individual or facility that is responsible for or has assumed responsibility for the person's care or custody;

(4)    The name, place of residence or location, and post office address of any agent or agents designated under a durable power of attorney of which the person alleged to need protection is the principal, and the petitioner shall attach a copy of any such power or powers of attorney, if available;

(5)    Whether the person's incapacity will prevent attendance at the hearing and the reasons therefor;

(6)    If the petition alleges that the person is an absentee, a statement of the relevant circumstances, including the time and nature of the disappearance or detention and a description of any search or inquiry concerning the person's whereabouts;

(7)    The type of guardianship or conservatorship requested, the reasons therefor, and the interest of the petitioner in the appointment;

(8)    The name, post office address and, if the proposed guardian or conservator is an individual, the individual's age, occupation and relationship to the person alleged to need protection;

(9)    The name, post office address and, if the person alleged to need protection has nominated a guardian or conservator who is an individual, the individual's age, occupation and relationship to the person alleged to need protection;

(10)    The name and post office address of any guardian or conservator currently acting, whether in this state or elsewhere;

(11)    If the appointment of a limited guardian is requested, the specific areas of protection and assistance to be included in the court's order of appointment; and

(12)    If the appointment of a limited conservator is requested, the specific areas of management and assistance to be included in the court's order of appointment.

Source: SL 1993, ch 213, § 33; SDCL § 30-36-33; SL 1995, ch 167, § 181; SL 2017, ch 230 (Ex. Ord. 17-1), § 32, eff. Apr. 13, 2017.

29A-5-306. Report to be included with petition--Contents.

The petition shall include a report evaluating the condition of the person alleged to need protection which shall 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 therefor;

(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, for good cause shown, may grant leave to file the petition 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.

No evaluation report need be prepared if the petition has been brought on the basis that the person alleged to need protection is an absentee.

Source: SL 1993, ch 213, § 34; SDCL 30-36-34; SL 1995, ch 167, § 181.

29A-5-307. Filing financial statement of protected person.

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.

Source: SL 1993, ch 213, § 35; SDCL 30-36-35; SL 1995, ch 167, § 181; SL 2006, ch 153, § 4.

29A-5-308. Notice of hearing for protected person.

Upon the filing of the petition and evaluation report, the court shall promptly issue a notice fixing the date, hour, and location for a hearing to take place within sixty days.

The person alleged to need protection shall be personally served with the notice, a copy of the petition, and the evaluation report not less than fourteen days before the hearing. The person alleged to need protection may not waive notice, and a failure to properly notify the person alleged to need protection shall be jurisdictional.

A copy of the notice, together with a copy of the petition, shall be mailed by the petitioner at least fourteen days before the hearing to all entities and individuals age ten or older whose names and post office addresses appear in the petition.

The notice shall 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 protection of the right to appear at the hearing and to object to the proposed appointment.

If the basis of the petition is that the person alleged to need protection is an absentee, at least fourteen days before the hearing the petitioner shall mail a copy of the notice and petition to the alleged absentee at his or her last known post office address. The petitioner shall also publish a copy of the notice at least once a week for three consecutive weeks in a legal newspaper in the county in which the proceeding is pending, the last publication to occur at least ten days before the hearing.

Source: SL 1993, ch 213, § 36; SDCL 30-36-36; SL 1995, ch 167, § 181.

29A-5-309. Contest of appointment by protected person.

The court shall appoint an attorney for the person alleged to need protection, either upon the filing of the petition or at any time thereafter, if requested by the person alleged to need protection, if the person expresses a desire to contest the petition, or if the court determines that an appointment is otherwise needed to protect the person's interests. In appointing an attorney, the court shall consider any known preferences of the person alleged to need protection.

If the person alleged to need protection is not or will not be represented by an attorney, the court shall either appoint a court representative to make an investigation and recommendation concerning the relief requested in the petition or shall order the person alleged to need protection to attend the hearing on the petition.

If the basis of the petition is that the person alleged to need protection is an absentee, the court shall appoint an attorney if the court determines that an appointment is needed to protect the person's interests, but the court need not appoint a court representative or order attendance at the hearing.

In addition to any court-ordered evaluation, a person alleged to need protection who is contesting a petition may obtain an evaluation at the person's own expense to be completed by a licensed healthcare professional of the person's choice in accordance with § 29A-5-306, which must be included in the file and considered by the court.

Source: SL 1993, ch 213, § 37; SDCL 30-36-37; SL 1995, ch 167, § 181; SL 2023, ch 95, § 2.

29A-5-310. Duties of court representative.

Except to the extent excused by the court for good cause shown, the court representative shall interview the petitioner and the proposed guardian or conservator, shall visit the person alleged to need protection at the place where the person is located, shall orally explain the contents of the notice and petition to the person alleged to need protection and record his response, and shall ascertain whether the person alleged to need protection desires and is able to attend the hearing on the petition. The court representative shall make a recommendation to the court concerning the relief requested in the petition and shall submit a written report unless the court otherwise orders.

Source: SL 1993, ch 213, § 38; SDCL 30-36-38; SL 1995, ch 167, § 181; SL 2000, ch 136, § 1.

29A-5-311. Protected person's pre-hearing record sealed.

The evaluation report, statement of financial resources, and written report of the court representative shall be sealed upon filing and may not be made a part of the public record of the proceeding but shall be available to the court, to the person alleged to need protection, to the petitioner, to the court representative, to their attorneys, and to such other interested persons as the court may order upon a showing of the need.

Source: SL 1993, ch 213, § 39; SDCL 30-36-39; SL 1995, ch 167, § 181.

29A-5-312. Hearing for alleged person in need of protection--Duty of jury--Duty of court.

The hearing on the petition to appoint a guardian or conservator may be held at such convenient place as the court directs, including the place where the person alleged to need protection is located. The hearing may be closed to the public on the request of the person alleged to need protection, the person's attorney, or on the court's own motion. The proposed guardian or conservator shall attend the hearing except for good cause shown. Any individual or entity may apply for permission to participate at the hearing, and the court shall grant the request if reasonably satisfied that the applicant's participation would be in the best interests of the person alleged to need protection.

The person alleged to need protection is entitled to attend the hearing, to oppose the petition, to be represented by an attorney of his own choice, to demand a jury trial, to present evidence, to compel the attendance of witnesses and to confront and cross-examine all witnesses. If present at the hearing and if not represented by an attorney, the court shall orally inform the person alleged to need protection of these rights, of the contents of the petition, and of the nature, purpose, and legal effect of the appointment of a guardian or conservator.

The sole responsibility of the jury, if requested, shall be to determine whether the person alleged to need protection is a person for whom a guardian or conservator may be appointed. The standard of proof to be applied in determining whether the person alleged to need protection is a person for whom a guardian or conservator may be appointed shall be that of clear and convincing evidence.

The determination as to whether a guardian or conservator will be appointed, the type thereof, and the specific areas of protection, management and assistance to be granted, shall be for the court alone to decide. In making that determination, the court shall consider the suitability of the proposed guardian or conservator, the limitations of the person alleged to need protection, the development of the person's maximum feasible self-reliance and independence, the availability of less restrictive alternatives, and the extent to which it is necessary to protect the person from neglect, exploitation, or abuse.

The court shall make findings of fact and conclusions of law in support of any orders entered at the hearing if requested by the person alleged to need protection, by the person's attorney, or by any other interested person.

Source: SL 1993, ch 213, § 40; SDCL 30-36-40; SL 1995, ch 167, § 181.

29A-5-313. Mailing appointment order to protected person.

Within fourteen days following an appointment, the guardian or conservator shall mail a copy of the order of appointment, together with a brief statement of rights to seek termination or modification, to the protected person and to all individuals and entities given notice of the petition.

Source: SL 1993, ch 213, § 41; SDCL 30-36-41; SL 1995, ch 167, § 181.

29A-5-314. Issuing letter of guardianship or conservatorship.

Upon the filing of an acceptance of office and any required bond, letters of guardianship, conservatorship, or both, shall issue. Letters issued to a limited guardian shall list the specific areas of protection or assistance granted to said guardian and letters issued to a limited conservator shall list the specific areas of management and assistance granted to said conservator.

Source: SL 1993, ch 213, § 42; SDCL 30-36-42; SL 1995, ch 167, § 181.

29A-5-315. Temporary guardian or conservator of protected person.

The court may appoint a temporary guardian or conservator, or both, under this section and §§ 29A-5-301 to 29A-5-314, inclusive, upon a showing that an immediate need exists, that adherence to the regular procedures for the appointment of a guardian or conservator may result in significant harm to the person alleged to need protection or the estate, and that no other individual or entity appears to have authority to act on behalf of the person or estate, or that the individual or entity with authority to act is unwilling or has ineffectively exercised the authority.

A temporary guardian or conservator shall have only those powers and duties which are specifically set forth in the order of appointment. The appointment of a temporary guardian or conservator shall expire within ninety days unless extended by the court for up to an additional ninety days for good cause shown.

An appointment of a temporary guardian or conservator shall be made upon such notice and subject to such conditions as the court may order, except that reasonable notice of hearing shall be given to the person alleged to need protection unless there is a showing that such delay may result in significant harm to the person or the estate.

Within five days following an appointment, a temporary guardian or conservator shall mail a copy of the order of appointment, together with a brief statement of rights to seek termination or modification, to the protected person and to all individuals and entities that would be entitled to notice of hearing on a petition for a regular appointment.

Source: SL 1993, ch 213, § 43; SDCL 30-36-43; SL 1995, ch 167, § 181.

29A-5-401. Responsibility of guardian of minor--Authority with regard to guardian appointed under other chapters.

A guardian of a minor shall be responsible for making decisions regarding the minor's support, care, health, education, and, if not inconsistent with an order of commitment or custody, to take custody of the minor and to determine the minor's residence. A guardian shall maintain sufficient contact with the minor to know of the minor's capabilities, limitations, needs, and opportunities. A guardian shall at all times act in the minor's best interests, shall exercise reasonable care, diligence and prudence, and shall report on the condition of the minor as ordered by the court.

In the event that guardians of a minor have been appointed both under this chapter and under the provisions of chapters 26-7A, 26-8A, 26-8B, and 26-8C, the guardian appointed under this chapter has no authority with respect to the powers delegated to the guardian appointed under chapters 26-7A, 26-8A, 26-8B, and 26-8C.

Source: SL 1993, ch 213, § 44; SDCL 30-36-44; SL 1995, ch 167, § 181.

29A-5-402. Responsibility of guardian of protected person.

A guardian of a protected person shall make decisions regarding the protected person's support, care, health, habilitation, therapeutic treatment, and, if not inconsistent with an order of commitment or custody, shall determine the protected person's residence. A guardian shall maintain sufficient contact with the protected person to know of the protected person's capabilities, limitations, needs, and opportunities.

A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and if feasible, shall encourage the protected person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.

Source: SL 1993, ch 213, § 45; SDCL 30-36-45; SL 1995, ch 167, § 181.

29A-5-403. Annual report--Guardian of protected person--When filed.

A guardian of a protected person shall file a report with the court within sixty days following the first anniversary of the appointment and:

(1)    At least annually thereafter;

(2)    When the court orders additional reports to be filed;

(3)    When the guardian resigns or is removed; and

(4)    When the guardianship is terminated unless the court determines that there is then no need therefor.

A guardian may elect to file a periodic report on a calendar-year basis. However, in no event may such a report cover a period of more than one year. A calendar-year report shall be filed with the court no later than April fifteenth of the succeeding year.

A report shall briefly state:

(1)    The current mental, physical and social condition of the protected person;

(2)    The living arrangements during the reporting period;

(3)    The medical, educational, vocational and other professional services provided to the protected person and the guardian's opinion as to the adequacy of the protected person's care;

(4)    A summary of the guardian's visits with and activities on the protected person's behalf;

(5)    If the protected person is institutionalized, whether the guardian agrees with the current treatment or habilitation plan;

(6)    A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;

(7)    Any other information requested by the court or useful in the opinion of the guardian;

(8)    The compensation requested and the reasonable and necessary expenses incurred by the guardian; and

(9)    The date on which the guardian completed the training curricula required pursuant to § 29A-5-119.

A guardian shall mail a copy of the report to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing.

Within sixty days of the filing of the annual report, any interested person may request a hearing on the report. The court may order the guardian to attend the hearing on the report on the court's own motion or on the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting of the conservator if the same individual holds both appointments.

Source: SL 1993, ch 213, § 46; SL 1994, ch 233, § 3; SDCL 30-36-46; SL 1995, ch 167, § 181; SL 2021, ch 121, § 3; SL 2023, ch 95, § 3.

29A-5-404. Responsibilities of minor's conservator.

A conservator of a minor, without the necessity of having to seek prior court authorization, shall apply the income and principal of the estate as needed for the minor's support, care, health and education. A conservator also shall apply the income and principal for the support of any legal dependents who are unable to support themselves and who are in need of support.

In making distributions, a conservator shall consider the size of the estate, the duration of the conservatorship, the minor's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian or, if no guardian has been appointed, the recommendations of the parent or other individual with legal custody. A conservator shall at all times act in the minor's best interests and shall exercise reasonable care, diligence, and prudence.

Source: SL 1993, ch 213, § 47; SDCL 30-36-47; SL 1995, ch 167, § 181.

29A-5-405. Responsibilities of conservator of protected person.

A conservator of a protected person, without the necessity of having to seek prior court authorization, shall apply the income and principal of the estate as needed for the protected person's support, care, health, and if applicable, habilitation or therapeutic needs. A conservator also shall apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and who are in need of support.

A conservator, when making distributions, shall exercise authority only to the extent necessitated by the protected person's limitations, and shall, if feasible, encourage the protected person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage the estate and his financial affairs. A conservator shall also consider the size of the estate, the probable duration of the conservatorship, the protected person's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.

A conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.

Source: SL 1993, ch 213, § 48; SDCL 30-36-48; SL 1995, ch 167, § 181.

29A-5-406. Protective arrangements for minors or protected persons.

Upon petition therefor, the court may authorize a conservator to enter into a protective arrangement, to disburse the estate of the minor or protected person, and to petition for termination of the conservatorship. Protective arrangements include but are not limited to payment, delivery, deposit, or retention of funds or property; sale, mortgage, lease, or other transfer of property; entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; and the addition to or establishment of a suitable trust.

Source: SL 1993, ch 213, § 49; SDCL 30-36-49; SL 1995, ch 167, § 181.

29A-5-407. Inventory of minor's or protected person's real and personal estate.

Within ninety days following an appointment, a conservator shall file with the court an inventory of the real and personal estate of the minor or protected person which has come into the conservator's possession or knowledge. The inventory shall, with reasonable detail, list each item of the estate, its approximate fair market value and the type and amount of encumbrance to which it is subject. If any real or personal estate comes into the possession or knowledge of the conservator which was not included in the inventory, the conservator may list such property in the next accounting required to be filed with the court.

A conservator shall mail a copy of the inventory to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing.

Source: SL 1993, ch 213, § 50; SL 1994, ch 233, § 4; SDCL 30-36-50; SL 1995, ch 167, § 181.

29A-5-408. Annual accounting--Conservator--When filed.

A conservator shall file an accounting with the court within sixty days following the first anniversary of the appointment and:

(1)    At least annually thereafter;

(2)    When the court orders additional accounts to be filed;

(3)    When the conservator resigns or is removed; and

(4)    When the conservatorship is terminated.

A conservator may elect to file a periodic accounting on a calendar-year basis. However, in no event may such an accounting cover a period of more than one year. A calendar-year report shall be filed with the court no later than April fifteenth of the succeeding year.

An accounting shall include:

(1)    A listing of the receipts, disbursements, and distributions from the estate under the conservator's control during the period covered by the account;

(2)    A listing of the estate;

(3)    The services being provided to the protected person;

(4)    The significant actions taken by the conservator during the reporting period;

(5)    A recommendation as to the continued need for conservatorship and any recommended changes in the scope of the conservatorship;

(6)    Any other information requested by the court or useful in the opinion of the conservator;

(7)    The compensation requested and the reasonable and necessary expenses incurred by the conservator;

(8)    An annual inventory of any item of tangible personal property with a value of two thousand five hundred dollars or more which has come into the conservator's possession or knowledge for the minor or protected person; and

(9)    The date on which the conservator completed the training curricula required pursuant to § 29A-5-119.

A conservator shall mail a copy of the accounting to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing. A conservator shall notify all persons receiving the accounting that they must present written objections within sixty days after receipt or be barred from thereafter objecting.

Upon filing an objection, any interested person may request a hearing on the accounting. The court may order the conservator to attend the hearing on an account on the court's own motion or on the petition of any interested person. An accounting by a conservator may be incorporated into and made a part of the report of the guardian if the same individual holds both appointments.

Subject to written objection, appeal, or vacation within the time permitted, an order allowing an account of a conservator adjudicates as to liabilities concerning all matters disclosed in the account.

Source: SL 1993, ch 213, § 51; SL 1994, ch 233, § 5; SDCL 30-36-51; SL 1995, ch 167, § 181; SL 1998, ch 166, § 1; SL 2000, ch 137, § 1; SL 2021, ch 121, § 4; SL 2023, ch 95, § 4.

29A-5-409. Waiver of accounting requirements--Change in frequency of accountings.

The court, upon petition, may waive the requirement that accountings be filed or may permit accountings to be filed less frequently than annually if it concludes that the expense involved or burden placed on the conservator in preparing and filing annual accountings outweigh the benefit and protection afforded thereby to the minor or protected person.

In determining whether accountings may be waived or presented less frequently than annually, the court shall consider:

(1)    The relationship of the conservator to the minor or protected person;

(2)    The value of the estate and annual gross income and other receipts within the conservator's control;

(3)    The amount of the bond;

(4)    The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;

(5)    The extent to which the income and receipts are payable directly to a facility responsible for the care or custody of the minor or protected person;

(6)    Whether a guardian has been appointed, and if so, whether the guardian has filed reports as required; and

(7)    Any other factors which the court deems appropriate.

Upon the termination of a conservatorship, the court may, in addition, waive the requirement that a final accounting be filed if the individuals and entities entitled to the estate consent.

Source: SL 1993, ch 213, § 52; SL 1994, ch 233, § 6; SDCL 30-36-52; SL 1995, ch 167, § 181.

29A-5-410. Notice of hearing on petition for order subsequent to appointment.

Except as otherwise provided in this chapter or as ordered by the court for good cause shown, notice of hearing on a petition for an order subsequent to the appointment of a guardian or conservator, including an order approving a guardian's report or conservator's accounting, shall be mailed to the minor, if age ten or older, to the protected person, to their attorneys of record, if any, to the relatives of the minor or protected person who would then be entitled to notice of an original petition to appoint, to any facility that is responsible for the care or custody of the minor or protected person, to the guardian or conservator, if the guardian or conservator is not the petitioner, and to such other individuals or entities as the court may order. Unless otherwise ordered by the court, the notice shall be mailed at least fourteen days prior to the hearing and shall be accompanied by a copy of the petition or other document. A minor or protected person may not waive compliance with this section, and the court may not dispense with notice to a minor or protected person unless the minor or protected person is an absentee or the court is reasonably satisfied that such notice will likely cause significant harm to the minor or protected person and the court's finding is supported by a written report of a physician, psychiatrist or licensed psychologist. If deceased, notice to a minor or protected person shall be sent to his last known address or to his successors in interest.

Source: SL 1993, ch 213, § 53; SDCL 30-36-53; SL 1995, ch 167, § 181.

29A-5-411. Powers of conservator.

A conservator, in managing the estate, shall act as a fiduciary and in the best interests of the minor or protected person and shall, in addition, have the following powers, which may be exercised without prior court authorization except as otherwise provided:

(1)    To invest and reinvest the funds of the estate in accordance with the standard of prudence as specified in chapter 55-5;

(2)    To collect, hold, and retain assets of the estate, including land in another state, and to receive additions to the estate;

(3)    To continue or participate in the operation of any unincorporated business or other enterprise;

(4)    To deposit estate funds in a state or federally insured financial institution, including one operated by the conservator;

(5)    To manage, control, convey, divide, exchange, partition, and sell at public or private sale, for cash or for credit, the real and personal property of the estate;

(6)    To grant an option to dispose of any asset and to take an option to acquire any asset, and to complete a contract entered into by a protected person, including a contract to convey or purchase real or personal property;

(7)    To enter into or renew a lease as lessor or lessee with or without option to purchase, including leases for real and personal property and leases and other arrangements for exploration and removal of minerals or other natural resources, and even though the lease or other arrangement may extend beyond the term of the conservatorship;

(8)    To borrow money and to place, renew, or extend an encumbrance upon any property, real or personal, including the power to borrow from a financial institution operated by the conservator;

(9)    To abandon property if, in the opinion of the conservator, it is valueless or is so encumbered or in such condition that it is of no benefit to the estate;

(10)    To make ordinary or extraordinary repairs or alterations in buildings or other property and to grant easements for public or private use, or both, with or without consideration;

(11)    To vote a security, either personally or by general or limited proxy and to consent to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other enterprise;

(12)    To sell or exercise stock subscription or conversion rights and to pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;

(13)    To hold a security in the name of a nominee or in other form without disclosure of the conservatorship, so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with a security so held;

(14)    To insure the assets of the estate against damage or loss, and the guardian and conservator against liability with respect to third persons;

(15)    To allow, pay, reject, contest, or settle any claim by or against the estate or protected person by compromise or otherwise and to release, in whole or in part, any claim belonging to the estate to the extent it is uncollectible;

(16)    To pay taxes, assessments, and other expenses incurred in the collection, care, and administration of the estate;

(17)    To pay any sum distributable for the benefit of the minor, the protected person, or legal dependent by paying the sum directly to the distributee, to the provider of goods and services, to any individual or facility that is responsible for or has assumed responsibility for care and custody, to a distributee's custodian under a Uniform Gifts or Transfers Act of any applicable jurisdiction, or by paying the sum to the guardian of the minor or protected person or, in the case of a dependent, to the dependent's guardian or conservator;

(18)    To employ persons, including attorneys, accountants, investment advisors, or agents; to act upon their recommendations without independent investigation; to delegate to them any power, whether ministerial or discretionary; and to pay them reasonable compensation;

(19)    To maintain life, health, casualty, and liability insurance for the benefit of the minor, the protected person, or legal dependents;

(20)    To manage the estate following the termination of the conservatorship and until its delivery to the minor, the protected person, or successors in interest;

(21)    To execute and deliver all instruments and to take all other actions that will accomplish or facilitate the exercise of the powers conferred by this chapter; and

(22)    To act as a representative pursuant to subdivision 55-18-9(1).

Source: SL 1993, ch 213, § 54; SDCL § 30-36-54; SL 1995, ch 167, § 181; SL 2017, ch 208, § 28.

29A-5-412. Confirmation of sale of real estate.

Not less than fourteen days prior to the closing of any sale of real or personal property of the estate for which the fair market value is not readily ascertainable, the conservator shall provide written information of the intent to sell to all individuals and entities specified in § 29A-5-410. The written information shall contain a description of the property to be sold, the name of the purchaser, the sale price, the terms of payment, and the nature of the security if the payment of any portion of the purchase price is to be deferred.

Source: SL 1993, ch 213, § 55; SDCL 30-36-55; SL 1995, ch 167, §§ 178, 181.

29A-5-413. Restrictions on conservator of minor or protected person.

Unless prior approval of court is first obtained, or unless such relationship existed prior to the appointment and was disclosed in the petition for appointment, a conservator may not:

(1)    Directly or indirectly purchase, lease, or sell any property from or to the minor, the protected person or the estate;

(2)    Borrow or loan funds to the minor, the protected person or the estate, except for reasonable advances without interest for the protection of the estate;

(3)    Compromise or otherwise modify a debt owed by the conservator to the minor, the protected person or the estate; or

(4)    Directly or indirectly purchase, lease or sell property or services from or to any entity of which the conservator or a relative of the conservator is an officer, director, shareholder, proprietor, or owns a significant financial interest.

Any activity prohibited by this section is voidable upon petition of any interested person or on the court's own motion. This section does not limit any other remedies which may be available for a breach by the conservator or others of their duty of loyalty to the minor, the protected person, or the estate.

Source: SL 1993, ch 213, § 56; SDCL 30-36-56; SL 1995, ch 167, § 181.

29A-5-414. Liability of guardian for acts of minor or protected person.

A guardian is not liable for the acts of the minor or protected person, unless the guardian is personally negligent, nor may a guardian be required to expend personal funds on the minor's or protected person's behalf.

Source: SL 1993, ch 213, § 57; SDCL 30-36-57; SL 1995, ch 167, § 181.

29A-5-415. Liability of conservator on contracts entered into during administration of estate--Torts--Successor conservator.

Unless otherwise provided in the contract, a conservator is not personally liable on a contract properly entered into in a fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity or identify the estate in the contract.

A conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally negligent.

Claims based on contracts entered into by a conservator in a fiduciary capacity, obligations arising from ownership or control of the estate, or torts committed in the course of administration of the estate, may be asserted against the estate by proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable.

A successor conservator is not personally liable for the contracts or actions of a predecessor. However, a successor conservator is not immunized from liability for a breach of fiduciary duty committed by a predecessor if the successor learns of the breach and fails to take reasonable corrective action.

Source: SL 1993, ch 213, § 58; SDCL 30-36-58; SL 1995, ch 167, § 181.

29A-5-416. Multiple guardians--Majority concurrence.

If there is more than one guardian or conservator, a majority must concur to exercise a power unless a guardian or conservator has delegated powers to another guardian or conservator or the court has authorized the exercise of powers by less than a majority. However, a delegation, whether by court authorization or otherwise, does not immunize a guardian or conservator from liability for a breach of fiduciary duty committed by another guardian or conservator if the guardian or conservator participated in the breach, approved of, acquiesced in, or concealed the breach, negligently permitted the breach to occur, or had actual knowledge of the breach and failed to take reasonable corrective action.

Source: SL 1993, ch 213, § 59; SDCL 30-36-59; SL 1995, ch 167, § 181.

29A-5-417. Presumption of authority of guardian or conservator.

Any individual or entity that in good faith deals with a guardian or conservator as to any matter or transaction is entitled to presume that the guardian or conservator is properly authorized to act. The fact that an individual or entity deals with a guardian or conservator with knowledge of the representative capacity does not alone require an inquiry into the guardian's or conservator's authority, except that any such individual or entity shall be charged with knowledge of restrictions that may appear on the letters of guardianship or conservatorship. No individual or entity may be required to see to the proper application of any funds or property paid or delivered to a conservator.

Source: SL 1993, ch 213, § 60; SDCL 30-36-60; SL 1995, ch 167, § 181.

29A-5-418. Filing letters of conservatorship--Proper county--Constructive notice.

Within ninety days following an appointment, a conservator shall file and record a certified copy of the letters of conservatorship in the office of the register of deeds in the county of appointment and in any county in which the minor or protected person owns real estate. A conservator may, but need not, file and record the letters in other counties, and a guardian may, but need not, record the letters of guardianship in any county. A filing shall include an affidavit that designates the real estate owned by the minor or protected person and which contains a legal description. The filing and recording of a certified copy of the letters is constructive notice of the existence of the guardianship or conservatorship until the same is discharged by the like filing and recording of a certified copy of an order terminating the guardianship or conservatorship.

Source: SL 1993, ch 213, § 61; SDCL 30-36-61; SL 1995, ch 167, § 181.

29A-5-419. Court's authority to limit powers--Authorization sought by guardian or conservator.

Nothing in this chapter prohibits the court from limiting the powers which may otherwise be exercised by a guardian or conservator without prior court authorization, from authorizing transactions which might otherwise be prohibited, nor from granting additional powers to a guardian or conservator. Nothing in this chapter prohibits a guardian or conservator from seeking court authorization, instructions, or ratification for any actions, proposed actions, or omissions to act.

Source: SL 1993, ch 213, § 62; SDCL 30-36-62; SL 1995, ch 167, § 181.

29A-5-420. Court authorized powers of protected person's conservator--Considerations--Hearing--Protected person's will.

Upon petition therefor, the court may authorize a conservator to exercise any of the powers over the estate or financial affairs of a protected person which the protected person could have exercised if present and not under conservatorship, including the powers:

(1)    To make gifts to charity or other donees, and to convey interests in any property;

(2)    To provide support for individuals who are not legal dependents;

(3)    To amend or revoke trusts, or to create or make additions to revocable or irrevocable trusts, even though such trusts may extend beyond the life of the protected person;

(4)    To disclaim, renounce, or release any interest or power, or to exercise any power;

(5)    To exercise options or change the beneficiary on or withdraw the cash value of any life insurance policy, annuity policy, or retirement plan;

(6)    To elect against the estate of the protected person's spouse;

(7)    To withdraw funds from a multiple-party bank account as defined in § 29A-6-101, to change the beneficiary on or dispose of any payable or transfer on death arrangement as defined in § 29A-6-113, or to dispose of any property specifically given under the protected person's will; or

(8)    To make, amend, or revoke a will.

The court, in authorizing the conservator to exercise any of the above powers, shall primarily consider the decision which the protected person would have made, to the extent that the decision can be ascertained. The court shall also consider the financial needs of the protected person and the needs of legal dependents for support, possible reduction of income, estate, inheritance or other tax liabilities, eligibility for governmental assistance, the protected person's prior pattern of giving or level of support, the existing estate plan, the protected person's probable life expectancy, the probability that the conservatorship will terminate prior to the protected person's death, and any other factors which the court believes pertinent.

No order may be entered under this section unless notice of hearing is first given to the protected person, to the beneficiaries of the protected person's estate plan, and to the individuals who would succeed to the protected person's estate by intestate succession and, if known, to any attorney or financial advisor who advised the protected person within the last five years. No trust or will may be amended or revoked without prior notice of hearing to the trustee or nominated personal representative thereof.

In making a determination under this section, the court may compel the production of documents, including the protected person's will. A will made by the conservator on the protected person's behalf, or an amendment or revocation of a will previously made by the protected person or conservator shall be in writing and signed by the conservator in the presence of at least two witnesses, who shall each affix his or her signature. The conservator may, but need not, attach a self-proving affidavit as provided in § 29A-2-504.

Nothing in this section may be construed to create a duty on the part of a conservator to revise a protected person's estate plan.

Source: SL 1993, ch 213, § 63; SDCL 30-36-63; SL 1995, ch 167, §§ 179, 181; SL 2002, ch 138, § 4.

29A-5-421. Restriction of protected person's interaction with family prohibited--Exceptions.

Except as described in § 29A-5-422, a guardian or conservator may not restrict a protected person's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless the restriction is authorized by a court order. For purposes of §§ 29A-5-421 to 29A-5-426, inclusive, other persons only includes the parents, children, and siblings of the protected person.

Source: SL 2016, ch 150, § 1.

29A-5-422. Presumption of protected person's consent or refusal based on proof of relationship.

If a protected person is unable to express consent to communication, visitation, or interaction with a person due to a physical or mental condition, then the guardian or conservator may presume the protected person's consent to or refusal of the communication, visitation, or interaction based on proof concerning the nature of the protected person's relationship with the other person.

Source: SL 2016, ch 150, § 2.

29A-5-423. Court action to restrict interaction with family member.

With good cause, a guardian or conservator may move the court to restrict the other person's ability to communicate, visit, or interact with a protected person.

Source: SL 2016, ch 150, § 3.

29A-5-424. Good cause factors for restricting interaction.

A court may issue an order restricting the communications, visitations, or interactions that the other person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue an order, a court shall consider the following factors:

(1)    Whether any protective order has been issued to protect the protected person from the other person;

(2)    Whether the other person has been charged with abuse, neglect, or financial exploitation of the protected person;

(3)    Whether the protected person has expressed a desire to communicate, visit, or interact with the other person or has expressed a desire not to communicate, visit, or interact with the other person;

(4)    If the protected person is unable to communicate, whether a properly executed living will, durable power of attorney, or advance directive contains a preference by the protected person with regard to the other person's communication, visitation, or interaction with the protected person; and

(5)    Any other factor deemed relevant by the court.

Source: SL 2016, ch 150, § 4.

29A-5-425. Types of restrictions--Supervised interaction.

Before issuing an order pursuant to § 29A-5-424, the court shall consider imposing the following restrictions in the order listed:

(1)    Placing reasonable time, manner, or place restrictions on communication, visitation, or interaction between the protected person and the other person based on the history between the protected person and the other person or the protected person's wishes, or both;

(2)    Requiring that communication, visitation, or interaction between the protected person and the other person be supervised; or

(3)    Denying communication, visitation, or interaction between the protected person and the other person.

If the court finds that the other person poses a threat to the protected person, the court may order supervised communication, visitation, or interaction pursuant to subdivision (2) before denying any communication, visitation, or interaction.

Source: SL 2016, ch 150, § 5.

29A-5-426. Proceedings for violation of court order or abuse of discretion by guardian or conservator--Removal.

If any person, including the protected person, reasonably believes that a guardian or conservator has violated a court order or abused the guardian's or conservator's discretion in applying § 29A-5-422, the person may move the court to:

(1)    Require the guardian or conservator to grant a person access to the protected person;

(2)    Restrict, or further restrict, a person's access to the protected person;

(3)    Modify the guardian or conservator's duties; or

(4)    Remove the guardian or conservator pursuant to this chapter.

A guardian or conservator who knowingly isolates a protected person and has violated §§ 29A-5-421 to 29A-5-426, inclusive, or an order issued pursuant to §§ 29A-5-421 to 29A-5-426, inclusive, is subject to removal pursuant to this chapter.

A person appointed to a guardian or conservator prior to July 1, 2021, who fails to complete or timely complete the training curricula required pursuant to § 29A-5-119 is subject to removal pursuant to this chapter.

Source: SL 2016, ch 150, § 6; SL 2021, ch 121, § 5.

29A-5-427. Interested party--Access to medical and financial records.

The court must grant an interested person access to some or all of a protected person's medical or financial records if, on the motion of the interested person, the court finds access is in the best interest of the protected person. If the court does not grant access, the court must issue written findings of fact and conclusions of law as to why the medical or financial records access was not granted.

Source: SL 2023, ch 95, § 5.

29A-5-428. Protected person--Alleged abuse, neglect, or self-dealing by the guardian or conservator.

If the court receives any verbal or written communication from a protected person alleging that a guardian or conservator is abusing or neglecting the protected person or is engaging in self-dealing with respect to the protected person's property, or the guardianship or conservatorship is no longer necessary and should be terminated, and the communication contains credible and substantial evidence, which in context of the entire record, supports the allegation, the court must treat the communication as a petition under § 29A-5-504.

Source: SL 2023, ch 95, § 6.

29A-5-501. Termination of guardian's or conservator's appointment--Liability for prior acts.

A guardian's or conservator's appointment terminates upon the death, resignation or removal of the guardian or conservator or upon the termination of the guardianship or conservatorship. A termination of an appointment does not affect the liability of a guardian or conservator for prior acts or the responsibility of a conservator to account for the minor's or protected person's estate.

Source: SL 1993, ch 213, § 64; SDCL 30-36-64; SL 1995, ch 167, § 181.

29A-5-502. Appointment of additional guardians or conservators--Successors.

The court may appoint additional guardians or conservators and may appoint a successor guardian or conservator either prior to or at the time of a vacancy. A successor guardian or conservator appointed prior to a vacancy shall be immediately empowered to assume the duties of office upon the termination of the predecessor's appointment, but shall be required to file the requisite acceptance of office and any required bond within sixty days. A successor guardian or conservator shall succeed to the powers and duties of the predecessor unless otherwise ordered by the court.

Source: SL 1993, ch 213, § 65; SDCL 30-36-65; SL 1995, ch 167, §§ 180, 181; SL 1999, ch 146, § 3.

29A-5-503. Petition to resign as guardian or conservator.

A guardian or conservator may petition the court for permission to resign. Except for good cause shown, the court may not grant permission unless there is a suitable successor willing to act.

Source: SL 1993, ch 213, § 66; SDCL 30-36-66; SL 1995, ch 167, § 181.

29A-5-504. Petition to remove guardian or conservator--Reasons for removal.

Upon petition by any interested person or on the court's own motion, the court may remove a guardian or conservator or order other appropriate relief if the guardian or conservator:

(1)    Is acting under letters secured by material misrepresentation or mistake, whether fraudulent or innocent;

(2)    Has an incapacity or illness, including substance abuse, which affects fitness for office, or is adjudged to be a protected person in this or in any other jurisdiction;

(3)    Is convicted of a crime which reflects on fitness for office;

(4)    Wastes or mismanages the estate, unreasonably withholds distributions or makes distributions in a negligent or profligate manner, or otherwise abuses powers or fails to discharge duties;

(5)    Neglects the care and custody of the minor, the protected person or legal dependents;

(6)    Has an interest adverse to the faithful performance of duties such that there is a substantial risk that the guardian or conservator will fail to properly perform those duties;

(7)    Fails to file reports or accountings when required, or fails to comply with any order of court;

(8)    Acts in a manner that threatens the personal or financial security of a co-guardian or co-conservator or endangers the surety on the bond;

(9)    Fails to file sufficient bond after being ordered by the court to do so;

(10)    Avoids service of process or notice;

(11)    Becomes incapable of or unsuitable for the discharge of duties;

(12)    Is not acting in the best interests of the minor or protected person or of the estate even though without fault; or

(13)    Fails to complete or timely complete the training curricula required pursuant to § 29A-5-119.

Source: SL 1993, ch 213, § 67; SDCL 30-36-67; SL 1995, ch 167, § 181; SL 2021, ch 121, § 6.

29A-5-505. Termination of guardianship or conservatorship upon minor's death or majority--Adoption or emancipation of minor.

A guardianship or conservatorship of a minor shall terminate upon the minor's death or attainment of majority, if jurisdiction is transferred to another state, or if ordered by the court following a hearing thereon. A guardianship, but not a conservatorship, shall also terminate upon the minor's adoption or emancipation, and the court may elect to continue a guardianship until the minor's attainment of age twenty-one if the guardian was appointed pursuant to the provisions of chapters 26-7A, 26-8A, 26-8B, and 26-8C.

Source: SL 1993, ch 213, § 68; SDCL 30-36-68; SL 1995, ch 167, § 181.

29A-5-506. Termination of guardianship or conservatorship of minor when no longer needed--Investigation by court representative.

Upon the filing of a petition by the minor, by the guardian or conservator, by any other interested person, or on the court's own motion, the court may terminate the guardianship, the conservatorship, or both, if the court determines that the minor is no longer in need of the assistance or protection of a guardian or conservator or no suitable guardian or conservator can be secured. In making a determination under this section, the court may appoint a court representative to make such investigation as the court may order.

Source: SL 1993, ch 213, § 69; SDCL 30-36-69; SL 1995, ch 167, § 181.

29A-5-507. Termination of guardianship or conservatorship upon death of protected person.

A guardianship or conservatorship of a protected person shall terminate upon the death of the protected person, if jurisdiction is transferred to another state, or if ordered by the court following a hearing.

Source: SL 1993, ch 213, § 70; SDCL 30-36-70; SL 1995, ch 167, § 181.

29A-5-508. Termination, revocation or modification of guardian or conservator--Modification of limited guardianship or limited conservatorship--Investigation by court representative--Records sealed.

Upon petition by the protected person, by the guardian or conservator, by any other interested person, or on the court's own motion, the court may terminate a guardianship, conservatorship, or both, or modify the type of appointment or the areas of protection, management, or assistance previously granted to a limited guardian or limited conservator. Such termination, revocation, or modification may be ordered if:

(1)    The protected person is no longer in need of the assistance or protection of a guardian or conservator;

(2)    The extent of protection, management, or assistance previously granted is either excessive or insufficient considering the current need therefor;

(3)    The protected person's understanding or capacity to manage the estate and financial affairs or to provide for health, care, or safety has so changed as to warrant such action; or

(4)    No suitable guardian or conservator can be secured who is willing to exercise the assigned duties.

In making a determination under this section, the court may appoint an attorney for the protected person if the court determines that an appointment is necessary to protect the person's interests, may appoint a court representative to make such investigations as the court shall order, and may appoint one or more individuals that it deems qualified to make such evaluations as it shall determine appropriate. Such evaluations and the written report of the court representative shall be sealed upon filing and may not be made a part of the public record but shall be available to the court, to the protected person, to the guardian or conservator, to the petitioner, to the court representative, to their attorneys, and to such other individuals and entities as the court may order upon a showing of the need.

Source: SL 1993, ch 213, § 71; SDCL 30-36-71; SL 1995, ch 167, § 181.

29A-5-509. Hearing on petition to terminate, revoke, or modify--Jury--Duty of court.

A hearing on a petition to terminate, revoke, or modify shall be conducted in the same manner and the protected person shall have the same rights as would obtain at a hearing on a petition for the appointment of a guardian or conservator. The protected person and the guardian or conservator shall attend the hearing except for good cause shown.

The sole function of the jury, if requested, shall be to determine whether the protected person is no longer a person for whom a guardian or conservator may be appointed. All other questions of fact and the determination of the relief to be granted shall be for the court alone. The court may deny a request for a jury if a jury was empaneled on a previous petition to terminate, revoke, or modify and the court is reasonably satisfied that there has not been a substantial change of circumstances.

Source: SL 1993, ch 213, § 72; SDCL 30-36-72; SL 1995, ch 167, § 181.

29A-5-510. State as conservator of protected person--Distribution of assets upon death.

Notwithstanding any other statutory provision to the contrary, if the State of South Dakota is the conservator of a protected person and if the assets of the conservatorship are less than two thousand dollars, upon the death of the protected person, the conservator may elect to provide notice pursuant to § 29A-5-410 and obtain court approval to pay the debts and distribute the assets of the protected person to the heirs and devisees of the protected person pursuant to chapter 29A-2.

Source: SL 2010, ch 144, § 1.