An Act to amend provisions addressing guardianships and conservatorships.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 29A-5-304 be AMENDED:

29A-5-304. Any individual who has sufficient capacity to form a preference may at any time nominate any individual or entity to act as his guardian or conservator. The nomination may be made in writing, by an oral request to the court, or may be proved by any other competent evidence. A person designated under a validly executed power of attorney by the person alleged to be in need of protection must be considered as a nominee. The court shall appoint the individual or entity so nominated if the nominee is otherwise eligible to act and would serve in the best interests of the protected person. If a person designated under a validly executed power of attorney by the person alleged to be in need of protection is not appointed as the guardian or conservator, the court must issue written findings of facts and conclusions of law as to why the designated person was not appointed. If a person alleged to be in need of protection has designated an individual to serve as guardian or conservator under a validly executed legal instrument, including a power of attorney, and the court does not appoint the designated individual, the court shall issue written findings of fact and conclusions of law as to why the designated individual was not appointed.

In the absence of an effective nomination by the protected person, the court shall appoint as guardian or conservator the individual or entity that will act in the protected person's best interests. In making that appointment, the court shall consider the proposed guardian's or conservator's geographic location, familial or other relationship with the protected person, ability to carry out the powers and duties of the office, commitment to promoting the protected person's welfare, any potential conflicts of interest, and the recommendations of the spouse, the parents or other interested relatives, whether made by will or otherwise. The court may appoint more than one guardian or conservator and need not appoint the same individual or entity to serve as both guardian and conservator.

Section 2. That § 29A-5-309 be AMENDED:

29A-5-309. The court shall appoint an attorney for the person alleged to need protection, either upon the filing of the petition or at any time thereafter, if requested by the person alleged to need protection, if the person expresses a desire to contest the petition, or if the court determines that an appointment is otherwise needed to protect the person's interests. In appointing an attorney, the court shall consider any known preferences of the person alleged to need protection.

If the person alleged to need protection is not or will not be represented by an attorney, the court shall either appoint a court representative to make an investigation and recommendation concerning the relief requested in the petition, or shall order the person alleged to need protection to attend the hearing on the petition.

If the basis of the petition is that the person alleged to need protection is an absentee, the court shall appoint an attorney if the court determines that an appointment is needed to protect the person's interests, but the court need not appoint a court representative or order attendance at the hearing.

AIn addition to any court-ordered evaluation, a person alleged to need protection who is contesting a petition may haveobtain an evaluation done by a physician, psychologist, or psychiatristat the person's own expense to be completed by a licensed healthcare professional of the person's choice in accordance with § 29A-5-306, which must be included in the file and considered by the court.

Section 3. That § 29A-5-403 be AMENDED:

29A-5-403. A guardian of a protected person shall file a report with the court within sixty days following the first anniversary of the appointment and:

(1) At least annually thereafter;

(2) When the court orders additional reports to be filed;

(3) When the guardian resigns or is removed; and

(4) When the guardianship is terminated unless the court determines that there is then no need therefor.

A guardian may elect to file a periodic report on a calendar‑year basis. However, in no event may such a report cover a period of more than one year. A calendar‑year report shall be filed with the court no later than April fifteenth of the succeeding year.

A report shall briefly state:

(1) The current mental, physical and social condition of the protected person;

(2) The living arrangements during the reporting period;

(3) The medical, educational, vocational and other professional services provided to the protected person and the guardian's opinion as to the adequacy of the protected person's care;

(4) A summary of the guardian's visits with and activities on the protected person's behalf;

(5) If the protected person is institutionalized, whether the guardian agrees with the current treatment or habilitation plan;

(6) A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;

(7) Any other information requested by the court or useful in the opinion of the guardian;

(8) The compensation requested and the reasonable and necessary expenses incurred by the guardian; and

(9) The date on which the guardian completed the training curricula required pursuant to § 29A-5-119.

A guardian shall mail a copy of the report to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing.

AnyWithin sixty days of the filing of the annual report, any interested person may request a hearing on the report. The court may order the guardian to attend the hearing on the report on the court's own motion or on the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting of the conservator if the same individual holds both appointments.

Section 4. That chapter 29A-5 be amended with a NEW SECTION:

A report shall briefly state:

(1) The current mental, physical and social condition of the protected person;

(2) The living arrangements during the reporting period;

(3) The medical, educational, vocational, and other professional services provided to the protected person and the guardian's opinion as to the adequacy of the protected person's care;

(4) A summary of the guardian's visits with and activities on the protected person's behalf;

(5) A statement indicating whether or not the protected person has made any statements or indications to the guardian, or any other person who has informed the guardian, that the protected person does not want the guardianship to continue, or that the protected person wants a different guardian to be appointed;

(6) If the protected person is institutionalized, whether the guardian agrees with the current treatment or habilitation plan;

(7) A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;

(8) Any other information requested by the court or useful in the opinion of the guardian;

(9) The compensation requested and the reasonable and necessary expenses incurred by the guardian; and

(10) The date on which the guardian completed the training curricula required pursuant to § 29A-5-119.

A guardian shall mail a copy of the report to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing.

Within sixty days of the filing of the annual report, any interested person may request a hearing on the report. The court may order the guardian to attend the hearing on the report on the court's own motion or on the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting of the conservator if the same individual holds both appointments.

If the report indicates that the protected person wants to have the guardianship ended, or wants to have another person to serve as the guardian, the court must determine if a hearing is necessary, based on the totality of the circumstances, including whether or not a hearing has previously been held on the same issue.

Section 4. That § 29A-5-408 be AMENDED:

29A-5-408. A conservator shall file an accounting with the court within sixty days following the first anniversary of the appointment and:

(1) At least annually thereafter;

(2) When the court orders additional accounts to be filed;

(3) When the conservator resigns or is removed; and

(4) When the conservatorship is terminated.

A conservator may elect to file a periodic accounting on a calendar‑year basis. However, in no event may such an accounting cover a period of more than one year. A calendar‑year report shall be filed with the court no later than April fifteenth of the succeeding year.

An accounting shall include:

(1) A listing of the receipts, disbursements, and distributions from the estate under the conservator's control during the period covered by the account;

(2) A listing of the estate;

(3) The services being provided to the protected person;

(4) The significant actions taken by the conservator during the reporting period;

(5) A recommendation as to the continued need for conservatorship and 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 and the reasonable and necessary expenses incurred by the conservator;

(8) An annual inventory of any item of tangible personal property with a value of two thousand five hundred dollars or more which has come into the conservator's possession or knowledge for the minor or protected person; and

(9) The date on which the conservator completed the training curricula required pursuant to § 29A-5-119.

A conservator shall mail a copy of the accounting to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing. A conservator shall notify all persons receiving the accounting that they must present written objections within fourteensixty days after receipt or be barred from thereafter objecting.

Upon filing an objection, any interested person may request a hearing on the accounting. The court may order the conservator to attend the hearing on an account on the court's own motion or on the petition of any interested person. An accounting by a conservator may be incorporated into and made a part of the report of the guardian if the same individual holds both appointments.

Subject to written objection, appeal, or vacation within the time permitted, an order allowing an account of a conservator adjudicates as to liabilities concerning all matters disclosed in the account.

Section 5. That chapter 29A-5 be amended with a NEW SECTION:

An accounting shall include:

(1) A listing of the receipts, disbursements, and distributions from the estate under the conservator's control during the period covered by the account;

(2) A listing of the estate;

(3) The services being provided to the protected person;

(4) The significant actions taken by the conservator during the reporting period;

(5) A statement indicating whether or not the protected person has made any statements or indications to the conservator, or any other person who has informed the conservator, that the protected person does not want the conservatorship to continue, or that the protected person wants a different conservator to be appointed;

(6) A recommendation as to the continued need for conservatorship and any recommended changes in the scope of the conservatorship;

(7) Any other information requested by the court or useful in the opinion of the conservator;

(8) The compensation requested and the reasonable and necessary expenses incurred by the conservator;

(9) An annual inventory of any item of tangible personal property with a value of two thousand five hundred dollars or more which has come into the conservator's possession or knowledge for the minor or protected person; and

(10) The date on which the conservator completed the training curricula required pursuant to § 29A-5-119.

A conservator shall mail a copy of the accounting to the individuals and entities specified in § 29A-5-410 no later than fourteen days following its filing. A conservator shall notify all persons receiving the accounting that they must present written objections within sixty days after receipt or be barred from thereafter objecting.

Upon filing an objection, any interested person may request a hearing on the accounting. The court may order the conservator to attend the hearing on an account on the court's own motion or on the petition of any interested person. An accounting by a conservator may be incorporated into and made a part of the report of the guardian if the same individual holds both appointments.

Subject to written objection, appeal, or vacation within the time permitted, an order allowing an account of a conservator adjudicates as to liabilities concerning all matters disclosed in the account.

If the report indicates that the protected person wants to have conservatorship ended, or wants to have another person serve as the conservator, the court must determine if a hearing is necessary, based on the totality of the circumstances, including whether or not a hearing has previously been held on the same issue.

Section 5. That chapter 29A-5 be amended with a NEW SECTION:

The court must grant an interested partyperson access to some or all of a protected person's medical andor financial records if, on the motion of the interested partyperson, the court finds access is in the best interest of an interested party or the protected person and does not endanger the welfare or financial interest of the protected person. If the court does not grant access, the court must issue written findings of fact and conclusions of law as to why the medical or financial records access was not granted.

Section 6. That chapter 29A-5 be amended with a NEW SECTION:

If the court receives any verbal or written communication from a protected person alleging that a guardian or conservator is abusing or neglecting the protected person or is engaging in self-dealing with respect to the protected person's property, or the guardianship or conservatorship is no longer necessary and should be terminated, and the communication contains credible and substantial evidence, which in context of the entire record, supports the allegation, the court must treat the communication as a petition under § 29A-5-504.