South Dakota: Adult Guardianship and Conservatorship Petition Requirements

Requirements one by one

Proceeding and state terminology

South Dakota's Guardianship and Conservatorship Act uses guardian for personal
affairs and conservator for property and financial affairs. Under § 29A-5-301,
one petition process may produce either appointment or both. Section
29A-5-102 also recognizes limited guardians and limited conservators whose
responsibilities are confined to the appointment order.

Who may file and where

Under § 29A-5-305, filing is available to the adult, an interested relative, the
individual or facility responsible for care or custody, the adult's nominee,
or any other interested person, including the Department of Human Services.

Section 29A-5-104 applies the circuit-court procedural rules. For adults,
§ 29A-5A-202 makes the jurisdiction act exclusive, and § 29A-5A-203 generally
starts with South Dakota as the adult's home state, with significant-connection
and other statutory routes for interstate cases. Part 3 does not state a
separate ordinary county-venue rule for adults.

What the petition must contain

Section 29A-5-305 requires the petitioner and adult's identifying and contact
information, relatives in statutory order, caregiver or facility, durable-POA
agents and available instruments, whether incapacity prevents attendance, the
requested type and reasons, the proposed and nominated fiduciaries, existing
guardians or conservators, and the particular areas requested for a limited
appointment.

The filing ordinarily includes two companion documents. Section 29A-5-306
requires the evaluation report with the petition. Before hearing, § 29A-5-307
requires a financial-resources statement listing known estate value, annual
gross income, and other receipts.

Proof required for appointment

The personal standard in § 29A-5-302 asks whether impairment leaves the adult
unable to meet essential health, care, safety, habilitation, or therapeutic
needs without a guardian's assistance or protection. The property standard in
§ 29A-5-303 asks whether impairment leaves the adult unable to manage property
or financial affairs or provide support for the adult or legal dependents
without a conservator.

Under § 29A-5-312, clear and convincing evidence is the burden for
whether the adult is a person for whom either appointment may be made. A jury,
if demanded, decides only that threshold. The court alone decides whether to
appoint, which role or roles, and the specific areas of authority.

Alternatives the court must address

Section 29A-5-312 requires the court to consider the adult's limitations,
maximum feasible self-reliance and independence, availability of less
restrictive alternatives, and the protection needed against neglect,
exploitation, or abuse. The statute makes alternatives a required
consideration, but it does not state that appointment is categorically barred
unless every alternative has failed.

The evaluation report under § 29A-5-306 must also give an opinion on necessity,
type, and scope, which supports the court's choice between full, limited, or no
appointment.

Notice, service, and hearing timing

Under § 29A-5-308, the court sets a hearing within 60 days after the petition
and evaluation are filed. The adult must be personally served at least 14 days
before hearing with the notice, petition, and evaluation report. The adult
cannot waive notice, and defective notice is jurisdictional.

The petitioner also mails the notice and petition at least 14 days before
hearing to every listed entity and person age 10 or older. The adult's notice
must explain the appointment's nature, purpose, and legal effect and the rights
to appear and object.

Counsel and hearing rights

Counsel is mandatory on a trigger, not automatic in every uncontested case.
Under § 29A-5-309, appointment is required if the adult requests counsel,
expresses a desire to contest, or the court finds counsel otherwise necessary
to protect the adult's interests. If the adult will not have counsel, the court
must either appoint a court representative or order the adult to attend.

Section 29A-5-312 gives the adult rights to attend, oppose, choose counsel,
demand a jury, present evidence, compel witnesses, and confront and
cross-examine every witness. The hearing may be closed at the adult's or
lawyer's request or on the court's own motion. A contesting adult may obtain an
independent licensed-healthcare-professional evaluation at personal expense
under § 29A-5-309; the court must consider it.

Medical evidence or court evaluator

The § 29A-5-306 evaluation must describe cognitive and functional limitations,
mental and physical condition, existing personal or financial services,
recommended living and treatment arrangements where appropriate, necessity and
scope, attendance effects, medications, and assessment dates. A physician,
psychiatrist, or licensed psychologist signs it. An assessment older than three
months needs a clinician's statement that no material change has occurred.

For good cause, the court may allow filing without the report, but it must then
order the assessments and a report. A court representative appointed under
§ 29A-5-309 follows § 29A-5-310 by interviewing the filer and nominee, visiting
the adult, explaining the papers, recording the response, checking attendance
ability and wishes, and recommending relief. Under § 29A-5-311, the evaluation,
financial statement, and representative report are sealed on filing.

Limits on the order

Section 29A-5-312 reserves the appointment type and specific areas of
protection, management, and assistance to the court. Under § 29A-5-314, letters
for a limited guardian or conservator list the exact areas granted. The
independence and alternatives factors therefore shape the actual order even
though the statute does not make limited appointment an automatic default.

Temporary appointment is separate under § 29A-5-315. It requires immediate
need, a risk that ordinary procedure will cause significant harm, and no other
authorized and effective actor. The order confers only specifically listed
powers and expires within 90 days, subject to one extension of up to 90 more
days for good cause.

What trips people up

The jury does not design the guardianship. If demanded, the jury decides
only whether clear and convincing evidence establishes a person for whom a
guardian or conservator may be appointed. The judge decides the role, scope,
and specific powers.

The three-month rule does not automatically invalidate an older
assessment. Section 29A-5-306 permits it when a physician, psychiatrist, or
licensed psychologist states that the adult's condition has not materially
changed since the assessment.

Common questions

Is a clinician's report always filed with the petition?

Ordinarily yes. For good cause the court may allow the petition first, but must
then order the appropriate assessments and require a report under
§ 29A-5-306.

Can the adult demand a jury?

Yes. Section 29A-5-312 gives that right. The jury decides only whether the
statutory basis for protection is proved, not the appointment's type or scope.

Is counsel appointed in every case?

No. Section 29A-5-309 makes appointment mandatory on request, expressed
contest, or a court finding that counsel is needed to protect the adult's
interests.

Are the evaluation and financial statement public?

No. Section 29A-5-311 seals those filings and any written court-representative
report, while allowing access to specified participants and others the court
authorizes on a showing of need.

Statutes and sources

• S.D. Codified Laws § 29A-5-102: guardian, conservator, and limited-role
  definitions.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-104: circuit-court procedure.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws §§ 29A-5A-202 to -203: adult jurisdiction.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws §§ 29A-5-301 to -303: proceeding and appointment
  standards.
  Official chapter
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-305: standing and petition contents.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws §§ 29A-5-306 to -307: evaluation and financial statement.
  Official chapter
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-308: hearing schedule and notice.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws §§ 29A-5-309 to -310: counsel, independent evaluation,
  and court representative.
  Official chapter
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-311: sealed prehearing reports.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-312: hearing rights, jury, proof, alternatives,
  and scope.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-314: limited letters.
  Official text
  (accessed 2026-07-19).
• S.D. Codified Laws § 29A-5-315: temporary appointment.
  Official text
  (accessed 2026-07-19).