29A-5-110. Appointment of individual or entity--Qualifications. Any adult individual may be appointed as a guardian, a conservator, or both, if capable of providing an active and suitable program of guardianship or conservatorship for the minor or protected person, and if not employed by any public or private agency, entity, or facility that is providing substantial services or financial assistance to the minor or protected person. The court may waive the prohibition on appointing an individual as guardian or conservator because of the individual's employment if the court finds the appointment is in the best interest of the minor or protected person.

Any public agency or nonprofit corporation may be appointed as a guardian, a conservator, or both, if it is capable of providing an active and suitable program of guardianship or conservatorship for the minor or protected person, and if it is not providing substantial services or financial assistance to the minor or protected person.

Any bank or trust company authorized to exercise trust powers or to engage in trust business in this state may be appointed as a conservator if it is capable of providing a suitable program of conservatorship for the minor or protected person.

The Department of Human Services may be appointed as a guardian, a conservator, or both, for individuals under its care or to whom it is providing services or financial assistance, but such appointment may only be made if there is no individual, nonprofit corporation, bank or trust company, or other public agency that is qualified and willing to serve.

No individual or entity, other than a bank or trust company, whose only interest is that of a creditor, is eligible for appointment as either a guardian or conservator.

No individual who has been convicted of a felony is eligible for appointment as a guardian or conservator unless the court finds appointment of the person convicted of a felony to be in the best interests of the person for whom the guardianship or conservatorship is sought. As part of the best interest determination, the court shall consider the nature of the offense, the date of offense, and the evidence of the proposed guardian's or proposed conservator's rehabilitation.

A person, except for a financial institution or its officers, directors, employees, or agents, or a trust company, who has been nominated for appointment as a guardian or conservator, shall obtain an Interstate Identification Index criminal history record check and a record check of South Dakota state court civil judgments for abuse, neglect, or exploitation of an elder or adult with a disability. The nominee shall file the results of these record checks with the court at least ten days prior to the appointment hearing date, unless waived or modified by the court for good cause shown by affidavit filed simultaneously with the petition for appointment.

The judge may not sign an order appointing a guardian or conservator until the record check results have been filed with the court and reviewed by the judge. The record check results, or the lack thereof, shall be certified by affidavit. The court may not require a record check upon the application of a petitioner for a temporary guardianship or temporary conservatorship. The court may waive the record check for good cause shown.

Source: SL 1993, ch 213, § 10; SDCL § 30-36-10; SL 1995, ch 167, § 181; SL 2016, ch 120, § 39; SL 2017, ch 230 (Ex. Ord. 17-1), § 31, eff. Apr. 13, 2017.