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Removing a Guardian in South Dakota

On Behalf of | Dec 1, 2020 | Will Contests & Estate Litigation

A guardianship is a relationship, created and supervised by the court, between two people, a guardian and a protected person. The protected person (sometimes called a ward) might be a minor or an adult whose ability to make decisions and meet requirements for daily living is impaired. The guardian has the authority to make essential personal, financial, and healthcare decisions for the protected person.

Who May Be Appointed a Guardian?

A member of the ward’s family or another interested person may petition to be appointed a guardian. If there is no friend or family member who is qualified and willing to accept the appointment, the court and/or a social service agency may step in to appoint a guardian.

What Are the Duties of a Guardian?

A guardian must be conscientious about the protected person’s finances and healthcare—becoming familiar with the ward’s abilities, needs, and limitations and respecting the ward’s privacy by keeping the details of the relationship confidential. The guardian must allow the ward to participate in personal decision making to the extent possible, always acting in the ward’s best interest and avoiding any relationship that could create a conflict of interest. The court requires the guardian to provide information about the ward’s finances and other affairs and to submit an annual report.

Why Would a Guardian Be Removed?

South Dakota Codified Laws 29A-5-504 explains the conditions for removing a guardian.

Upon petition by any interested person or on the court’s own motion, the court may remove a guardian or conservator or order other appropriate relief if the guardian or conservator:

(1)    Is acting under letters secured by material misrepresentation or mistake, whether fraudulent or innocent;

(2)    Has an incapacity or illness, including substance abuse, which affects fitness for office, or is adjudged to be a protected person in this or in any other jurisdiction;

(3)    Is convicted of a crime which reflects on fitness for office;

(4)    Wastes or mismanages the estate, unreasonably withholds distributions or makes distributions in a negligent or profligate manner, or otherwise abuses powers or fails to discharge duties;

(5)    Neglects the care and custody of the minor, the protected person or legal dependents;

(6)    Has an interest adverse to the faithful performance of duties such that there is a substantial risk that the guardian or conservator will fail to properly perform those duties;

(7)    Fails to file reports or accountings when required, or fails to comply with any order of court;

(8)    Acts in a manner that threatens the personal or financial security of a co-guardian or co-conservator or endangers the surety on the bond;

(9)    Fails to file sufficient bond after being ordered by the court to do so;

(10)    Avoids service of process or notice;

(11)    Becomes incapable of or unsuitable for the discharge of duties; or

(12)    Is not acting in the best interests of the minor or protected person or of the estate even though without fault.

Do You Feel That the Guardian of Your Protected Loved One Is Not Acting in the Ward’s Best Interest?

Don’t try to handle the complex removal process alone. Instead, work with an experienced lawyer who understands how important the right guardian is for the person you care about. Contact us online, start a chat, or call us at 605-644-5003 to schedule a free consultation.