Detailed Answer
Under South Dakota law, you can seek guardianship or conservatorship when an adult relative lacks the capacity to manage personal or financial affairs. The process follows the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (SDCL Title 29A). Below are the steps you must take.
1. Determine the Need
Assess whether your relative can make safe decisions about health, living arrangements, and finances. Medical evaluations or physician declarations may be needed to prove incapacity.
2. Prepare the Petition
File a petition in the county probate court where your relative lives. Use the forms provided by the county or the state court website. Your petition must state:
- The relative’s name, age, and residence.
- Allegations of incapacity with supporting medical information.
- The specific powers you request (guardian for personal decisions, conservator for financial affairs, or both).
See SDCL 29A-5-301 for petition requirements: SDCL 29A-5-301.
3. File the Petition and Pay Fees
Submit your petition with the probate court clerk and pay the filing fee. If you cannot afford it, you may request a waiver or fee reduction.
4. Provide Notice
Serve notice on the proposed ward (your relative), their spouse, adult children, parents, siblings, and any person named in your relative’s will as beneficiaries. Notice procedures are in SDCL 29A-5-302: SDCL 29A-5-302.
5. Court Investigation
The court appoints an investigator—often a social worker or attorney—to interview your relative and report on their capacity and living conditions. This report helps the judge decide if guardianship or conservatorship is appropriate.
6. Attend the Hearing
The court schedules a hearing. You, the proposed ward, family members, and the investigator may testify. The judge reviews evidence and hears arguments before deciding.
7. Court Order
If the judge finds clear and convincing evidence of incapacity, they issue an order appointing a guardian and/or conservator. The order defines your powers and duties. You must post bond as required by SDCL 29A-5-313: SDCL 29A-5-313.
8. Ongoing Reporting
As guardian or conservator, you must file annual reports with the court. Guardians report on personal care; conservators file an accounting of financial transactions (SDCL 29A-5-509): SDCL 29A-5-509.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult an attorney to address your specific situation.
Helpful Hints
- Start early: Court backlogs can delay appointments.
- Gather medical records: Strong documentation speeds the process.
- Notify all interested parties: Proper notice avoids delays or challenges.
- Keep detailed records: Document decisions, expenses, and communications.
- Use state forms: They ensure your petition meets statutory requirements.