Adult Guardianship / Conservatorship Petition Packet

SOUTH DAKOTA GUARDIANSHIP AND CONSERVATORSHIP PETITION PACKET

PART 0 — PRE-PETITION CHECKLIST AND TRIAGE

0.1 Type of Relief Selected

☐ Guardianship of the Person (§ 29A-5-302) — respondent lacks capacity to meet requirements for health, care, safety, habilitation, or therapeutic needs
☐ Conservatorship of the Estate (§ 29A-5-303) — respondent unable to manage property and financial affairs
☐ Both guardianship and conservatorship
☐ Limited guardianship — specific areas of protection only (§ 29A-5-305(11))
☐ Limited conservatorship — specific areas of management only (§ 29A-5-305(12))
☐ Temporary guardian/conservator (emergency; not more than 60 days) (§ 29A-5-315)

0.2 Less Restrictive Alternatives Reviewed

☐ Durable power of attorney for finances reviewed and found insufficient
☐ Health care power of attorney / advance directive reviewed and found insufficient
☐ Representative payee (Social Security / VA) considered
☐ Supported decision-making arrangement considered
☐ Special needs / supplemental needs trust considered
☐ Conclusion: less restrictive alternatives are insufficient because [________________________________]

0.3 Pre-Filing Diligence

☐ Evaluation report (§ 29A-5-306) obtained — signed by physician, psychiatrist, or licensed psychologist
☐ Venue confirmed — circuit court where respondent resides or is present (§ 29A-5-108)
☐ Court representative (visitor) and respondent's attorney anticipated (§ 29A-5-117, § 29A-5-310)
☐ Nearest relatives list compiled (§ 29A-5-305(2))
☐ Copy of any durable power of attorney attached (§ 29A-5-305(4))
☐ Guardian/conservator training requirement noted (§ 29A-5-119)

PART 1 — PETITION FOR APPOINTMENT OF GUARDIAN AND/OR CONSERVATOR (§ 29A-5-305)

STATE OF SOUTH DAKOTA
IN CIRCUIT COURT, [____________________________] JUDICIAL CIRCUIT
COUNTY OF [____________________________]

1. PETITIONER (§ 29A-5-305)

2. PERSON ALLEGED TO NEED PROTECTION (§ 29A-5-305(1))

3. NEAREST RELATIVES (§ 29A-5-305(2))

In the following order — (a) spouse and children; or if none (b) parents and siblings; or if none (c) nearest known relatives entitled to succeed by intestacy:

4. CARE / CUSTODY AND EXISTING AGENTS (§ 29A-5-305(3),(4),(10))

5. RELIEF REQUESTED AND PETITIONER'S INTEREST (§ 29A-5-305(7))

Type of guardianship/conservatorship requested, the reasons therefor, and petitioner's interest in the appointment:

[________________________________]
[________________________________]

☐ Guardianship — respondent lacks capacity to meet health, care, safety, habilitation, or therapeutic needs (§ 29A-5-302)
☐ Conservatorship — respondent unable to manage property and financial affairs (§ 29A-5-303)
☐ Limited guardianship — specific areas of protection and assistance (§ 29A-5-305(11)): [________________]
☐ Limited conservatorship — specific areas of management and assistance (§ 29A-5-305(12)): [________________]

6. PROPOSED GUARDIAN / CONSERVATOR (§ 29A-5-305(8),(9))

7. ATTENDANCE AT HEARING (§ 29A-5-305(5))

☐ The respondent's incapacity ☐ will ☐ will not prevent attendance at the hearing. If it will, the reasons are: [________________________________]

8. RELIEF

WHEREFORE, Petitioner requests that the Court:

1. Appoint a court representative (visitor) and appoint an attorney for the respondent unless independent counsel is retained (§ 29A-5-117);
2. After notice and hearing, find by clear and convincing evidence that the respondent is in need of protection;
3. Appoint [NAME] as ☐ guardian ☐ conservator ☐ both, under the least restrictive arrangement; and
4. Issue letters of guardianship/conservatorship and grant such other relief as is just.

PART 2 — EVALUATION REPORT REQUIRED WITH PETITION (§ 29A-5-306)

The petition shall include a report evaluating the condition of the person alleged to need protection, containing:

☐ (1) A description of the nature, type, and extent of incapacity, including specific cognitive and functional limitations;
☐ (2) Evaluations of mental and physical condition and, where appropriate, educational condition, adaptive behavior, and social skills;
☐ (3) (Guardianship) A description of services currently provided for health, care, safety, habilitation, or therapeutic needs, and a recommendation as to the most suitable living arrangement and treatment/habilitation plan;
☐ (4) (Conservatorship) A description of services currently provided for the management of the estate and financial affairs;
☐ (5) An opinion whether appointment is necessary, and the type and scope needed;
☐ (6) If incapacity will prevent attendance, an opinion whether attendance would be detrimental to health, care, or safety;
☐ (7) A statement as to medications affecting actions, demeanor, and participation;
☐ (8) The signature of a physician, psychiatrist, or licensed psychologist and any others who made substantial contributions;
☐ (9) The date of assessment/examination; if any was performed more than three months before filing, a statement of no material change.

PART 3 — COURT REPRESENTATIVE (VISITOR) AND APPOINTMENT OF COUNSEL (§ 29A-5-117, § 29A-5-310)

Upon the filing of this Petition:

☐ The Court shall appoint a court representative (visitor) to interview the respondent, evaluate the petition, and submit a written report (§ 29A-5-310).
☐ The Court shall appoint an attorney to represent the respondent unless the respondent retains independent counsel (§ 29A-5-117).
☐ The Court may also appoint a guardian ad litem (§ 29A-5-117).

PART 4 — NOTICE OF HEARING (§ 29A-5-308)

NOTICE OF HEARING ON PETITION FOR APPOINTMENT OF GUARDIAN AND/OR CONSERVATOR

TO: [NAME OF PERSON ALLEGED TO NEED PROTECTION], the nearest relatives listed in Part 1, and any known attorney of the respondent.

NOTICE IS GIVEN that a Verified Petition has been filed in the Circuit Court, County of [____________________________], and will be heard on:

Personal notice must be given to the respondent at least fourteen (14) days before the hearing.

You may appear and object. The respondent may contest the appointment (§ 29A-5-309).

PART 5 — RIGHTS OF THE RESPONDENT

• The right to personal notice at least 14 days before the hearing (§ 29A-5-308).
• The right to a court-appointed attorney unless independent counsel is retained (§ 29A-5-117).
• The right to a court representative (visitor) who interviews the respondent and reports to the court (§ 29A-5-310).
• The right to contest the appointment (§ 29A-5-309).
• The right to attend the hearing, present evidence, and cross-examine witnesses; the hearing may be held at a convenient location (§ 29A-5-312).
• The right to require proof by clear and convincing evidence.
• The right to the least restrictive arrangement and to a limited guardianship/conservatorship where appropriate.
• The right to have certain pre-hearing records sealed (§ 29A-5-311).
• The right to seek modification, restoration, or termination.

PART 6 — EVALUATION / EXAMINATION REPORT (PLACEHOLDER) (§ 29A-5-306)

PART 7 — PROPOSED ORDER AND LETTERS (§ 29A-5-312, § 29A-5-314)

ORDER APPOINTING GUARDIAN AND/OR CONSERVATOR

This matter came before the Court on the Verified Petition. The Court, having considered the petition, the evaluation report, the court representative's report, and the evidence, FINDS:

1. ☐ Notice has been given as required by law.
2. ☐ By clear and convincing evidence, the respondent lacks capacity as required for guardianship under § 29A-5-302 and/or is unable to manage property and affairs under § 29A-5-303.
3. ☐ The appointment is the least restrictive arrangement consistent with the respondent's needs.
4. ☐ The proposed guardian/conservator is qualified and suitable.

IT IS ORDERED:

• [NAME] is appointed ☐ Guardian ☐ Conservator ☐ Both of [RESPONDENT NAME].
• (If limited) The specific areas of protection/management are: [________________________________]
• Bond / accountings / annual report requirements: [________________________________]
• Letters of guardianship/conservatorship shall issue upon qualification (§ 29A-5-314).

Dated: [__/__/____] [____________________________]
Circuit Court Judge

PART 8 — VERIFICATION AND NOTARIZATION

VERIFICATION

State of South Dakota, County of [____________________________]

I, [PETITIONER NAME], being first duly sworn, state that I am the Petitioner, that I have read the foregoing Petition, and that the statements contained therein are true and correct to the best of my knowledge, information, and belief.

[____________________________]
Petitioner

Subscribed and sworn to before me on [__/__/____].

[____________________________]
Notary Public
My commission expires: [__/__/____]

SOURCES AND REFERENCES

• S.D.C.L. ch. 29A-5 — South Dakota Guardianship and Conservatorship Act: https://sdlegislature.gov/Statutes/29A-5
• S.D.C.L. § 29A-5-305 (petition contents): https://law.justia.com/codes/south-dakota/title-29a/chapter-05/section-29a-5-305/
• S.D.C.L. § 29A-5-306 (evaluation report): https://law.justia.com/codes/south-dakota/title-29a/chapter-05/section-29a-5-306/
• South Dakota Unified Judicial System — Guardianship/Conservatorship forms: https://ujslawhelp.sd.gov/GuardConservForms.aspx
• State Bar of South Dakota — Guardianship & Conservatorship training: https://www.statebarofsouthdakota.com/guardianship-conservatorship/

END OF PACKET