Guardianship and Conservatorship FAQ's
The role of guardian and/or conservator is one that carries with it considerable
responsibility as well as considerable rewards. While assuming the role of
guardian/conservator may appear to be a daunting task at first glance, the
process of appointment and the fulfillment of ongoing duties are not as
complicated as they may seem. While the following list is by no means
all-inclusive, it does attempt to answer some of the most frequently asked
questions about guardianships and conservatorships.
What is a guardianship?
Guardianship is a legal relationship that gives one or more individuals or
agencies the responsibility of the personal affairs of the protected person.
What is a 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.
What are the types of guardianships?
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.
What is a conservatorship?
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,
Who can be a guardian/conservator?
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 and the Department of Social
Services are authorized to act as guardian/conservator for persons under their care.
What are the duties of a guardian/conservator?
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.
What is the potential liability of a guardian/conservator?
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.
What rights does a protected person give
up when a guardian/
conservator is appointed?
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.
What is the procedure for the appointment of a guardian/conservator?
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.