Right to counsel

South Dakota’s Guardianship and Conservatorship Act obliges a court to appoint counsel to represent a “protected person” “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.” S.D. Codified Laws § 29A-5-309.  The court can also appoint counsel for a guardianship review/termination proceeding if “necessary to protect the person’s interests.” S.D. Codified Laws § 29A-5-508(4).  A similar provision permits a court to assign counsel to minors allegedly in need of protection. S.D. Codified Laws § 29A-5-205.  Under South Dakota law, the costs of such representation should come from the estate of the protected person or protected minor. S.D. Codified Laws § 29A-5-116.

In In re Guardianship & Conservatorship of Nicole Trina Stevenson, 825 N.W.2d 911 (S.D. 2013), the court clarified the role of appointed attorneys in guardianship cases:

[A] court should be clear what role it intends the appointed advocate to assume, keeping in mind that the attorney’s role is not to determine the protected person’s best interests, but, after advice and assistance, to advocate a decision that the client desires. Indeed, the role of an attorney for a protected person should be no different than that of an attorney representing any other client, “as far as reasonably possible.” See S.D. Rules of Professional Conduct, App. ch. 16-8, Rule 1.14. If, on the other hand, the court wishes to have an investigative report submitted on the best interests of the protected person, a court representative is the proper appointment.