In Re the Guardianship & Conservatorship of Nelson
2013 SD 12
S.D.2013Background
- Peggy Nelson, age 91–94, relied on a durable power of attorney held by John Rice to manage finances and the ranch;
- Concerns arose about Rice’s self‑dealing and control over substantial assets, including CDs and ranch property;
- Petition for guardianship/conservatorship was filed Aug 2010 by Allison and Corbett to protect Peggy’s estate;
- Circuit court granted temporary emergency guardian/conservator and waived some statutory requirements;
- Proceedings proceeded largely without Peggy’s attendance or independent representation, despite statutory protections;
- Later petition sought permanent guardianship/conservatorship and removal of the temporary appointments, prompting de novo review on jurisdictional bases
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court have subject‑matter and personal jurisdiction under SDCL 29A‑5‑108 and related sections? | Rice argues lack of jurisdiction due to failure to serve an evaluation report; | Petitioners rely on statutory leave to file without evaluation; | Jurisdiction existed; court remanded to comply with 29A‑5 requirements. |
| Was the absence of an evaluation report and financial statement fatal to proceedings? | Court failed to require and file evaluation/report; | Leave to file without evaluation was granted; | Not fatal; court must now obtain and file evaluation and financial statement per 29A‑5‑306, 29A‑5‑307. |
| Were safeguards (attorney/court representative, Peggy’s attendance) properly followed? | Procedural mandates under 29A‑5‑309, ‑312 unmet; | Guardian/attorney represented Peggy; | Procedural safeguards must be complied with; remand to appoint representation or require Peggy’s attendance. |
| Did the trial court abuse discretion in denying removal or in the extension/preservation of guardianship? | Removal petition intended to thwart civil matter; | Removal denial was within court’s discretion; | Remand for proper administration under 29A‑5, with continued oversight. |
Key Cases Cited
- In re Koch Exploration Co., 387 N.W.2d 530 (S.D. 1986) (subject‑matter jurisdiction defined by statutes and constitution)
- In re Blare, 589 N.W.2d 211 (S.D. 1999) (guardian consideration and standards; proper procedures emphasized)
- Reaser v. Reaser, 688 N.W.2d 429 (S.D. 2004) (de novo review when jurisdiction challenged; statutory compliance required)
- In re Orshanksy, 804 A.2d 1077 (D.C. 2002) (guardian proceedings require careful protective measures)