Guardianship is a legal relationship that gives one or more individuals or agencies the responsibility of the personal affairs of the protected person.
A protected person is someone who has been determined by the court to be either incompetent or incapacitated. Therefore, a protected person to whom a guardian has been appointed has been determined to be unable to make decisions about various personal affairs of his/her life without the assistance or protection of a guardian. These decisions can involve issues relating to the person's health, care, safety, habilitation, therapeutic needs, financial affairs, and others areas of the protected person's life.
Guardianship provides the guardian with decision-making authority and responsibility over the protected person's personal affairs. Limited guardianship gives the guardian decision-making authority and responsibility over only selected areas that the protected person has been determined unable to manage by him/herself; for example, a limited guardianship may only apply to health care decisions. The court may appoint a temporary guardianship for a person for a 90-day period if it is felt that such an appointment is in the person's best interest. Finally, the court may appoint joint guardianship, which is more than one person acting as a protected person's guardian at the same time and sharing in the decision-making authority and responsibilities that accompany guardianship.
Conservatorship is similar to guardianship in that it is a legal relationship between a protected person and one or more individuals appointed by the court to make decisions on behalf of the protected person. However, while a guardianship may encompass all personal affairs (support, care, health, habilitation, therapeutic treatment, and if not inconsistent with an order of commitment or custody, the residence) of a protected person, a conservatorship is limited to the management of the property and financial affairs of a protected person. As with guardianship, a conservatorship may be full, limited, temporary, or joint.
A family member or other interested individual may petition for the appointment of guardian/conservator for a protected person. However, when a relative or other appropriate person is not qualified and willing to act in this capacity, the South Dakota Department of Human Services is authorized to act as guardian/conservator for persons under their care.
A guardian/conservator must maintain contact with the protected person to become familiar with the protected person's needs and limitations, and only exercise their decision- making authority to the extent required by those limitations. The guardian/conservator must respect the fact that their relationship with the protected person is a confidential one, and should encourage the person's participation in decision-making to the extent possible. Obviously, the guardian/conservator must always act in the best interest of the protected person, and never become involved in a situation that might give the appearance of a conflict of interest. Finally, the court does require that the guardian/conservator provide some information to the court, including information pertaining to the protected person's finances and personal inventory, and an annual personal status report.
A guardian or conservator is not individually liable for the actions of the protected person unless the guardian/conservator was personally negligent. Also, a guardian/conservator is not required to expend his/her own funds on behalf of a protected person. However, a guardian may be held liable if they have failed in taking reasonable steps to assure that the protected person receives proper care and/or services, or have improperly managed the protected person's property or finances.
A protected person retains all rights not granted to the guardian/conservator through the appointment by the court. For example, the guardian/conservator does not have the right to change a protected person's state of residence, marital status, parental rights, or power of attorney without the court's specific authorization.
First, a petition for the appointment of guardianship/conservatorship outlining the need for the appointment and the type of appointment requested is filed in the appropriate county. A statement of financial resources and a report from a physician, psychologist, or psychiatrist describing the person's level of impairment, ability to appear at the hearing, and need for protection is also filed. The court then conducts a hearing and determines whether a guardianship /conservatorship is appropriate, and if so, whether a full or limited appointment is most appropriate.