Our Practice Areas
Guardianship Protection
and Vulnerable Protection
Guardianship protection refers to the legal process of appointing a guardian to protect and make decisions on behalf of an individual who is deemed incapable of managing their own affairs due to age, illness, or disability. Conservatorship, on the other hand, involves the appointment of a conservator to manage the financial and legal matters of an individual who is unable to handle their own financial affairs due to incapacity or vulnerability.

South Dakota Guardianships and Conservatorships

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 if the minor's need for guardianship will likely continue into his adult years.

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 their 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 if the minor's need for conservatorship will likely continue into his adult years.

Experienced South Dakota
Guardianship and Conservatorship Representation

Denevan Falon Joyce represents clients in establishing guardianships or conservatorships for persons in need of protection. Denevan Joyce Falon also represents protected persons to understand their rights during a guardianship or conservatorship case.

The process of establishing a Conservatorship and/or Guardianship is as follows
Filing a Petition: A person interested in the welfare of an individual in need of protection can file a Petition to establish a guardianship and/or conservatorship. The Petition can ask for the appointment of a temporary guardian and/or conservator immediately if the facts warrant such an appointment.

Notice to Interested Parties: The individual that files the Petition (called a Petitioner) is required to provide notice to all other interested parties and the person in need of protection of the filing of the Petition and the subsequent hearings that will occur for the establishment of a Guardianship and/or Conservatorship.

Evaluation Report and Statement of Financial Resources: A Petition filed to establish a guardianship must be accompanied by an evaluation report signed by a treating or evaluating health care worker. If a conservatorship is being sought, the Petitioner must also file a statement of financial resources detailing the estate and sources of income for the person in need of protection

Guardian and Conservator Training and Background Checks: An individual that wishes to be appointed as a guardian or conservator must take an on-line guardianship course and submit to a state and federal background check.

Guardianship Hearings: A judge may conduct a short hearing if the matter is uncontested, or a trial if the matter is contested, to determine whether a guardianship or conservatorship is necessary and to determine who should be appointed as the guardian and conservator. Parties are allowed to examine and cross-examine witnesses, present documentary evidence and legal arguments to allow a judge or jury to decide the case.

Guardian ad Litem: In some cases, attorneys may serve as guardian ad litem, appointed by the court to represent the interests of the proposed ward and advocate for their best interests. A guardian ad litem may conduct investigations, evaluate the proposed guardian's suitability, and make recommendations to the court.

Representation of the Guardian and/or Conservator: Guardians and conservators have continuing responsibilities to report to the Court that appointed them on the welfare of the protected person as well as to account for their handling of the protected persons estate. Denevan Falon Joyce assists guardians and conservators in preparing, filing, serving, and seeking court approval of their reports and accountings.
Here are some of the advantages of having legal representation in guardianship cases:

Legal Knowledge: We possess extensive knowledge of South Dakota's guardianship/conservatorship laws. We can guide you through the process, ensuring compliance with all relevant statutes and court procedures.

Guidance and Advice: Particularly in contested cases, we can provide options, and advice on potential outcomes, helping you make informed decisions during the pendency of the case.

Smooth Process: The process of establishing a guardianship can be time-consuming to learn on your own and challenging to successfully complete without legal guidance. We can streamline the process by preparing the necessary paperwork, gathering the information necessary to meet the statutory requirements to establish a guardianship/conservatorship, providing notice to individuals entitled to notice and setting the hearings with the Court. .

Protection of Rights: One of the primary benefits we can offer during the guardianship/conservatorship process is to draft an order that is simple to understand so that the guardian and/or conservator can execute their duties well into the future.

Denevan Falon Joyce
Experience that Matters

Return of Vulnerable Adult: Denevan Falon Joyce represented children and a spouse of a vulnerable adult who was the subject of a temporary guardianship. The individual who petitioned for temporary guardianship removed the vulnerable adult from the state. After a multi-day trial, Denevan Falon Joyce was successful in having the vulnerable adult returned to his family in South Dakota.

Advocacy for Protected Persons: Denevan Falon Joyce has assisted numerous families establish guardianships and conservatorships for the express purposes of advocating for public-benefits eligibility for the protected person.

Preserving an Estate: Denevan Falon Joyce represented a family for the establishment of a conservatorship in a contested proceeding to protect a vulnerable adult from losing a significant portion of his estate and business to fraudster creditors. The work of the firm blocked the fraudsters from gaining access to the vulnerable adult's estate.

Medical Treatment: Denevan Falon Joyce assists families to establish guardianships in an effort to establish a system of substitute decision making that hospitals and other treatment facilities can recognize and rely upon so that they can provide much needed care to the protected person.
Financial Exploitation: Denevan Falon Joyce represented a vulnerable adult from financial predators who misappropriated hundreds of thousands of dollars. Denevan Falon Joyce was able to recover most of the assets and those assets provide for quality care to the vulnerable adult to this day.

Eliminating a Fiduciary Malfeasance: Denevan Falon Joyce has represented clients in cases where bad actors influenced a vulnerable adult to become their attorneys-in-fact, with the purpose of misappropriating assets of the vulnerable adult and cutting off the vulnerable adult from family and friends. Denevan Falon Joyce was successful invalidating the durable power of attorney document and establishing a guardianship/conservatorship, appointing a new individual who was a reliable and who would be a good steward of the vulnerable adults person and estate.

Ongoing Legal Support: Denevan Falon Joyce represents guardians and conservators in contested cases where family members disagree on the treatment of the vulnerable adult or the use of the vulnerable adults estate.

Find Answers to Common Inquiries
FAQs About Guardianships and Conservatorships

What is guardianship protection?

Guardianship protection refers to a legal arrangement in which a court appoints an individual or entity to be a guardian for someone who is unable to make decisions for themselves due to age, incapacity, or disability. The guardian is entrusted with the authority to make important decisions on behalf of the person, known as the ward, to ensure their well-being and best interests are upheld. Guardianship protection is designed to provide care, support, and decision-making for individuals who are unable to do so independently.

Who can file for guardianship in South Dakota?

In South Dakota, individuals or entities can file for guardianship if they believe that another person, typically referred to as the prospective ward, is unable to manage their personal and financial affairs due to incapacity, disability, or other circumstances. The person seeking guardianship is usually referred to as the petitioner.

What are the requirements to become a guardian in South Dakota?

To become a guardian in South Dakota, several requirements must be met:

Petition: The petitioner must file a guardianship petition with the appropriate court, providing details about the prospective ward's situation and the reasons for seeking guardianship.

Notice: Notice of the guardianship proceedings must be given to the prospective ward and other interested parties, including family members, caregivers, and healthcare professionals.

Investigation: The court may appoint an investigator or guardian ad litem to assess the prospective ward's condition and determine whether guardianship is necessary and in the ward's best interests.

Capacity Evaluation: A medical professional might assess the prospective ward's mental and physical capacity to understand their circumstances and make decisions.

Suitability: The petitioner's suitability to serve as a guardian will be evaluated. The court will consider factors such as their willingness, ability, and commitment to fulfilling the responsibilities of a guardian.

Relationship: South Dakota prioritizes considering close family members as guardians. If a family member is willing and capable of fulfilling the role, the court may give preference to them.

Court Approval: Ultimately, the court must approve the appointment of a guardian after reviewing the evidence, assessments, and input from relevant parties.

How is guardianship established in South Dakota?

Guardianship is established through a court process. The interested party files a petition for guardianship with the appropriate South Dakota court, providing information about the proposed ward's incapacity and the need for a guardian. The court will then evaluate the situation, hold a hearing, and determine if guardianship is necessary and who should be appointed as the guardian.

Can guardianship be terminated in South Dakota?

Yes, guardianship can be terminated in South Dakota under certain circumstances:

Petition for Termination: Anyone can file a petition to terminate guardianship if they believe that the ward's circumstances have changed and guardianship is no longer necessary.

Evaluation: The court may appoint an evaluator to assess the ward's current condition and determine if they have regained the ability to make decisions independently.

Hearing: A termination hearing is held, during which evidence is presented to support or contest the termination of guardianship.

Best Interests: The court will consider the ward's best interests when deciding whether to terminate guardianship.

Limited Guardianship: In some cases, guardianship might be modified from full guardianship to limited guardianship if the ward has regained some capacity to make decisions.

Court Order: If the court determines that guardianship is no longer necessary, it can issue an order terminating the guardianship.

Guardianship termination proceedings prioritize the ward's well-being and rights, ensuring that they are no longer subjected to unnecessary restrictions if their circumstances have improved.

Can a Person Request to Change Their Own Guardianship in South Dakota?

Yes, in South Dakota, a person who is under guardianship (the ward) can request a change or even termination of their own guardianship under certain circumstances. If the ward believes that their capacity has improved or that they are able to make decisions independently, they can petition the court to modify or end the guardianship arrangement.

This process can involve providing evidence of the ward's improved condition, possibly including medical evaluations, testimony from healthcare professionals, and statements regarding their ability to manage their personal and financial affairs. The court will carefully consider the ward's wishes, the medical assessments, and any potential risks to determine whether the guardianship should be changed or terminated. The court's primary concern is the well-being and best interests of the ward.

Can Someone Object to the Appointment of a Guardian?

Yes, interested parties, such as family members, friends, or even the prospective ward themselves, can object to the appointment of a specific guardian during the guardianship proceedings. Objections can be raised if there are concerns about the proposed guardian's suitability, competence, conflicts of interest, or if another person is believed to be better qualified to serve as the guardian.

These objections are usually presented to the court during the guardianship proceedings. The court will consider the objections, evaluate the evidence presented, and make a decision that aligns with the best interests of the prospective ward. The court's goal is to ensure that the chosen guardian is someone who can effectively fulfill their responsibilities and act in the ward's best interests.

What Types of Decisions Can a Guardian Make for the Ward in South Dakota?

A guardian in South Dakota can make various types of decisions on behalf of the ward, depending on the court's appointed authority and the ward's specific needs. Some of the decisions that a guardian may be authorized to make include:

Medical Decisions: Guardians can make medical treatment decisions, including choosing healthcare providers, consenting to medical procedures, and determining the level of care the ward requires.

Personal Care Decisions: Guardians can make decisions about the ward's living arrangements, daily activities, and other personal matters to ensure their well-being.

Financial Decisions: Depending on the scope of their authority, guardians might manage the ward's financial affairs, including paying bills, managing assets, and handling financial transactions.

Educational Decisions: For wards who are of school age, guardians can make decisions about their education, including selecting schools and making educational choices.

Legal Decisions: In some cases, guardians may have the authority to make legal decisions on behalf of the ward, such as consenting to legal settlements or initiating legal actions.

The specific decisions a guardian can make will be outlined in the court's guardianship order and are typically tailored to the individual needs and limitations of the ward.

Can Guardianship Be Transferred to Another State if the Ward Relocates?

Yes, guardianship can be transferred to another state if the ward relocates. The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) provides guidelines for transferring guardianship across state lines. This act helps streamline the process and ensures that there is continuity of care for the ward when they move.

The process usually involves cooperation between the courts in both the original state (where the guardianship was established) and the new state (where the ward has relocated). This ensures that the new state's court has the necessary information to assess the ward's situation and make informed decisions about the guardianship.

Can Guardianship Arrangements Be Challenged After They Are Established?

Yes, guardianship arrangements can be challenged after they are established if there are changes in circumstances or if interested parties believe that the guardianship is no longer necessary. Some common reasons to challenge established guardianship arrangements include:

Improved Capacity: If the ward's condition improves and they regain the ability to make decisions independently, interested parties might petition to modify or terminate the guardianship.

Change in Circumstances: If the ward's living situation, health status, or financial condition changes significantly, interested parties might seek to modify the guardianship to better reflect the ward's current needs.

Mismanagement or Neglect: If there are concerns that the guardian is not fulfilling their responsibilities or is acting against the ward's best interests, interested parties might challenge the guardianship arrangement.

Competing Guardianship Petitions: If there are disputes over who should serve as the guardian, interested parties might challenge the established guardianship arrangement and propose an alternative guardian.

Challenging an established guardianship arrangement requires presenting evidence to the court that justifies the requested modification or termination. The court will carefully review the evidence, take into consideration the ward's well-being, and make a decision that aligns with the best interests of the ward.

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