Family Law - Guardianship_Conservatorship

What is a Guardianship or Conservatorship? 

Guardianships and conservatorships are court-created and court-supervised relationships between two people.  In a guardianship a person, called the “guardian,” is given authority to act for the other person, called the “protected person” (or, previously, the “ward”). A conservatorship is based on the same principle, but the person given authority to make decisions for the protected person is called a “conservator.”

The law generally recognizes two varieties of guardianships and conservatorships. One is for “individuals in need of protection” as mentioned above. A second type is for minors (children under the age of 18). Different requirements and procedures govern guardianships and conservatorships for minors and for protected persons. This discussion focuses on guardianships and conservatorships for protected persons. 

Under South Dakota law, a “guardian” has authority over personal and healthcare decisions while a “conservator” has authority over the protected person’s property and financial affairs. For some people needing protecting, only a guardian is appointed; for others, only a conservator is appointed, and there are situations where both a guardian and a conservator are appointed for a person. The guardian and the conservator may be the same person or the court may appoint two or more people. Sometimes, two or more co-guardians or co-conservators are appointed to act together. It is also not uncommon for a “limited guardian” or a “limited conservator” to be appointed. A limited guardian or conservator would have limited authority or responsibilities as the protected person may still be able to make certain decisions for themselves.

Why would a Guardian or Conservator be appointed?

A guardian may only be appointed for someone whose ability to respond to people, events, and environments is impaired to such an extent that they lack the capacity to meet the essential requirements for their health, care, safety, habilitation, or therapeutic needs without assistance from a guardian. A conservator can be appointed only if the person’s ability to respond to events, people, and environments is so impaired that they lack the capacity to manage their financial affairs or provide for the support of their dependents without assistance from a conservator.

What role do Guardianships or Conservatorships play in estate planning?

Estate planning is often thought of as planning what you do with your property at death. This kind of planning is typically accomplished through a will or a trust. If someone dies without a will, there are rules on how that person’s property will be distributed – this is also known as intestate succession. But a secondary aspect of estate planning is to plan for the chance of future incapacity. Some people will experience a time when they are not able to care for themselves or manage their property on account of dementia or other reasons. A guardianship or conservatorship is a court process for those who have failed to plan for this possibility in advance. 

Guardianships and conservatorships help ensure people, their interests, and their property, are properly cared for. They serve an important role to protect the physical and financial well-being of those who cannot do so themselves. However, guardianships and conservatorships must be approved and overseen by a court, which may require court costs and attorney’s fees.  Therefore, it is generally recommended that guardianships or conservatorships be avoided through the use of a power of attorney, a living will, a living trust, or other planning mechanisms.

The law also permits individuals to nominate who they would like to see appointed as their guardian or conservator in advance of an incapacity. A nomination of a guardian or conservator can be made as part of a power of attorney document or as a separate document. If the person has capacity to form a preference, a nomination can also be articulated by an oral request to the judge. The court is required to appoint a person as guardian or conservator who will serve in the best interests of the protected person.

What are the advantages of a Guardianship or Conservatorship?

Guardianships or conservatorships allow control over the financial, personal, and medical needs of a protected person. They may allow money and property to be managed to benefit the protected person and be applied for their benefit.  They also allow certain medical decisions to be made to ensure the person is properly cared for. Without the assistance and oversight of a qualified guardian and conservator, an individual’s needs can go unmet.   

What are the disadvantages of a Guardianship or Conservatorship?

or conservator are limited to what can be found in South Dakota statute. For instance, a conservator lacks the power to make any changes to the protected person’s will or trust without court approval. A conservator must follow a particular procedure for selling any property of the protected person. If a guardian isolates the protected person, they may be removed by the court. Guardianships and conservatorships may be expensive or time consuming to acquire from the court and may require court approval to perform certain functions.  Because guardianships or conservatorships are complex, potentially costly, and time consuming, it is generally preferred to avoid the use of a guardianship or conservatorship, if possible. 

How is a Guardian or Conservator appointed?

A guardian or conservator can only be appointed by the court. A petition explaining the need for a guardianship or conservatorship must be filed. An evaluation report from a doctor, a licensed psychologist, or a psychiatrist must be completed and filed with the court. A financial statement showing the financial resources of the protected person must also be prepared and filed. Formal legal notice of the request for the appointment along with the time and place scheduled for a hearing on the request must be carried out and documented for the court. The person for whom a guardian or conservator is sought must attend the hearing, is entitled to an attorney, and may resist or contest the request.

Anyone can apply to participate in the hearing and the court will grant a request if it determines that it would be in the best interests of the person who may need protection. The court must inform the person of their right to an attorney, the right to contest the proceeding, the contents of the petition, and the purpose and effect of the appointment of a guardian or conservator. If the court does appoint a guardian or conservator, “letters of guardianship” or “letters of conservatorship” are issued by the judge.

What happens after a Guardian or Conservator is appointed?

Even after the hearing, a guardianship and conservatorship continues to operate under the supervision of the judge. Recordkeeping and ongoing involvement are required. At least once a year, a guardian must file an annual report with the court. Within ninety days of being appointed, a conservator must file an inventory. Then, at least once a year, a conservator must file a detailed and accurate accounting.

Although guardianships and conservatorships can be costly and time consuming, they perform a vital function in helping ensure proper care and management of a protected person’s healthcare and finances.

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