Standby Guardianship - South Dakota

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Who Can Nominate a Standby Guardian

Citation: Ann. Code §§ 29A-5-201; 29A-5-202

A guardian of a minor may be appointed upon petition and after notice and hearing as provided in this chapter. Upon an appointment, the guardianship or conservatorship status continues until terminated, without regard to the location of the guardian, the conservator, or the minor.

A minor, age 14 or older, may nominate any individual or entity to act as his or her guardian. The nomination may be made in writing or by an oral request to the court. A parent of an unmarried minor may nominate a guardian or conservator of the minor by will or other signed writing.

How to Establish a Standby Guardian

Citation: Ann. Code §§ 29A-5-201; 29A-5-202

The court may appoint the individual nominated by the minor if the nominee is otherwise eligible to act and would serve in the minor's best interests. However, no nomination by a minor may supersede a previous appointment by the court.

Absent an effective nomination by the minor, the court may appoint a parental nominee if both parents are dead and the nominee is otherwise eligible to act and would serve in the minor's best interests. In the event that both parents have made nominations, the court shall select the nominee that it believes is best qualified. A parental nomination shall be effective whether or not the minor was living at the time of the making of the will or other signed writing. However, no parental nomination may supersede a previous appointment by the court.

Absent an effective nomination by a minor, age 14 or older, or deceased parent, the court shall appoint as guardian the individual or entity that will act in the minor's best interests. In making that appointment, the court shall consider the proposed guardian's geographic location, familial or other relationship with the minor, ability to carry out the powers and duties of the office, commitment to promoting the minor's welfare, any potential conflicts of interest, the recommendations of the parents or other interested relatives, and the wishes of the minor if the minor is of sufficient age to form an intelligent preference.

How Standby Authority is Activated

Citation: Ann. Code §§ 29A-5-203; 29A-5-208

A petition for the appointment of a guardian may be filed by the minor, an interested relative, the individual or facility that is responsible for or has assumed responsibility for the minor's care or custody, by the individual or entity that the minor has nominated as guardian, or by any other interested person, including the Department of Human Services or the Department of Social Services.

The determination as to whether a guardian will be appointed is for the court alone to decide and may only be ordered if in the minor's best interests. In making that determination, the court shall consider the suitability of the proposed guardian; the minor's current or proposed living arrangements; the availability of less restrictive alternatives; the extent to which it is necessary to protect the minor from neglect, exploitation, or abuse; and, if applicable, the minor's need for habilitation or therapeutic treatment.

Upon the filing of an acceptance of office, letters of guardianship shall be issued.

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

Citation: Ann. Code §§ 29A-5-505; 29A-5-506

A guardianship of a minor shall terminate upon the minor's death or attainment of majority, if jurisdiction is transferred to another State, or if ordered by the court following a hearing thereon. A guardianship also shall terminate upon the minor's adoption or emancipation, and the court may elect to continue a guardianship until the minor reaches age 21 if the guardian was appointed pursuant to the provisions of chapters 26-7A, 26-8A, 26-8B, and 26-8C.

Upon the filing of a petition by the minor, the guardian, any other interested person, or on the court's own motion, the court may terminate the guardianship, if the court determines that the minor is no longer in need of the assistance or protection of a guardian or no suitable guardian can be secured. In making a determination under this section, the court may appoint a court representative to make such investigation as the court may order.