Adult Guardianship Statute:
S.D. Cod. Laws 29A-5-101 to -509
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
S.D. Codified Laws §§ 29A-5-117, -309, -509
Right to Counsel Definition in Statute:
"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." S.D. Codified Laws §§ 29A-5-309. "...The person alleged to need protection is entitled to attend the hearing, to oppose the petition, to be represented by an attorney of his own choice, to demand a jury trial, to present evidence, to compel the attendance of witnesses and to confront and crossexamine witnesses." S.D. Codified Laws §§ 29A-5-312. "Nothing in this chapter precludes the appointment of an attorney, guardian ad litem, or court representative if the court determines that such an appointment is necessary." S.D. Codified Laws §§ 29A-5-117. "A hearing on a petition to terminate, revoke, or modify shall be conducted in the same manner and the protected person shall have the same rights as would obtain at a hearing on a petition for the appointment of a guardian or conservator." S.D. Codified Laws §§ 29A-5-509.
Advocacy Role of Counsel Defined in Statute:
Professional Rules &/or Ethics Opinions:
When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client‑lawyer relationship with the client. When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. See SDRPC Rule 1.14(a) and (b). "Clearly, Rule 1.14(a) [of S.D. Rules of Professional Conduct] dictates that in dealings with a disabled client, the lawyer shall as far as reasonably possible, maintain a normal client-lawyer relationship with the client. As the comments to Rule 1.14 state, in part: The fact that the client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian...the lawyer often must act as defacto guardian. Even if the person does not have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication." Ethics Opinion 98-6.