Guardianship & Conservatorship

Please read all instructions thoroughly before proceeding!

Instructions:

1. Please read the information below in its entirety.
2. Once you have completed the required reading, please download the forms and documents below this text to save for your records. If you or your client are not able to access documents online please call the bar office at 605-224-7554 and we will mail you the needed information.
3. Click the link below to submit proof that you have read the training documentation or download the Conservatorship Training Printout and mail the Proof of Attendance in to the clerk of court's office in the county where the guardianship record is located.

Training:
There are a number of duties and responsibilities associated with acting as a conservator. The conservator’s primary role is to help manage the financial affairs of the protected person. To the extent known, the conservator shall consider the express desires and personal values of the protected person in making decisions. The conservator shall otherwise act in the protected person’s best interest and exercise reasonable care, diligence and prudence.  When making distributions of the protected person’s assets, the conservator shall exercise authority only to the extent required by the protected person’s limitations and, if feasible, shall encourage the protected person to participate in the decision making process, to act on his or her own behalf, and develop and retain the capacity to manage the estate and the protected person’s own financial affairs.  The conservator should also consider the size of the estate, the probable duration of the conservatorship, the protected person’s accustomed manner of living and other resources known to the conservator to be available in making recommendations for management of the protected person’s assets. The conservator should also consider any recommendations made by the protected person’s guardian if one is named.

The conservator is considered a fiduciary and owes duties of loyalty and duties of care to the protected person for whom the conservator is appointed. Conservators must avoid conflicts of interest and must always place the interest of the protected person ahead of their own. Conservators must also keep the protected person’s property separate from their own. A conservator may not profit personally in any way from the administration of a protected person’s estate. A breach of this fiduciary duty can make the conservator a personal liability including punitive damages.

If there is any real property included in a protected person’s estate, Letters of Conservatorship and an affidavit must be recorded with the County Register of Deeds within 90 days of appointment.

Finally, a conservator may not spend any of the protected person’s money for himself or herself without a prior court order. The money that the conservator holds is for the care, comfort, support and welfare of the protected person. All assets must be protected, and where appropriate, invested in safe, non-speculative investments. If the time arises that you may no longer act as conservator, it is important that you obtain a Court’s permission to withdraw. You cannot simply walk away from your role as conservator following appointment.

As a conservator, one of the most important duties that you will have is the filing of annual accountings. These annual accountings must detail the protected person’s financial situation as well as all actions taken by the conservator on behalf of the protected person. While a Court may waive the annual accounting requirements in some instances, in most instances an annual accounting is due within 60 days of the first anniversary of the appointment of the conservator. After the initial accounting is filed, an accounting will also need to be filed on an annual basis thereafter. The annual accounting filed by the conservator must contain the following information:

1.         A listing of receipts, disbursements and distributions from the estate under the conservator’s control during the time period for which the accounting covers;

2.         A listing of the estate owned by the conservator;

3.         Any services being provided to the protected person;

4.         All significant actions taken by the conservator during the reporting period;

5.         A recommendation as to a continuing need for a conservator exists as well as any recommended changes in the scope of the conservatorship;

6.         Any other information requested by the Court or useful in the opinion of the conservator;

7.         The compensation requested by the conservator as well as the reasonable and necessary expenses incurred by the conservator;

8.         An annual inventory of any item of tangible property with a value of $2500 or more which has come into the conservator’s possession or knowledge.

9.         A conservator’s annual accounting may be combined with a guardian’s annual report if the conservator and guardian is the same person(s). - see below for a sample accounting form.

After the annual accounting is filed with the Court, the conservator must mail a copy of the report no later than 14 days after it is filed with the Court to the following people:

1.         The minor or protected person;

2.         The minor or protected person’s attorney or attorneys, if any;

3.         The facility responsible for the minor or protected person’s care and custody;

4.         The protected person’s spouse, children, parents, brothers and sisters, or if none, to the person’s nearest known relatives who would be entitled to inherit by intestate succession if the protected person had passed away, and

5.         Anyone else ordered by the Court.

As a conservator it is your responsibility to ensure that the person for whom you are responsible is able to maintain as much independence as possible. In addition, if a guardian is also named, cooperation with the guardian is essential.

Please download the following forms and documents for your records: | Blank Annual Accounting Report

Additional Resources:

• Instructions for Background Checks
• South Dakota Unified Judicial System pro se guardianship and conservatorship forms and guidance https://ujslawhelp.sd.gov/guardianship.aspx
  • Access Guide and File
  • Adult Services And Aging
  • Frequently Asked Questions
  • Guardian-Conservator Appointment Checklist
  • Guardianship-Conservatorship Forms
  • Guardianship Training Information
  • Instructions for Obtaining State-Federal Criminal Background Checks
  • South Dakota Codified Laws regarding the Guardianship and Conservatorship Act
  • Vulnerable Adult Protection Order forms
• Access to Justice, Inc.  (Income based.)
• Dakota Plains Legal Services 528 Kansas City Street, Ste. 1 Rapid City, South Dakota 57701 605-342-7171 (Income based.)
• East River Legal Services 335 North Main Ave., Ste. 300 Sioux Falls, South Dakota 57104 800-952-3015 (Income based.)
• American Bar Association 1050 Connecticut Ave., Ste. 400 Washington D.C. 20036 202-662-1000 or 321 N. Clark Street Chicago, Illinois 60654 312-988-5000 www.americanbar.org
• National Guardianship Association, Inc. 174 Crestview Drive Bellefonte, Pennsylvania  16823 877-326-5992 www.guardianship.org

These training materials do not eliminate the need for legal assistance or representation from competent attorneys.