South Dakota Guardianship vs Power of Attorney for Child

They're Not Interchangeable

Grandparents and relatives raising a child in South Dakota often hear two terms used loosely: "power of attorney" and "guardianship." Online form sellers sometimes treat them as variations of the same thing. They're not. In South Dakota, they're governed by different statutes, cover different authority, and work in fundamentally different situations.

Getting the wrong one can leave you with a document that doesn't do what you need.

What a Power of Attorney Covers (and Doesn't)

South Dakota's Uniform Power of Attorney Act (SDCL Chapter 59-12) lets one person authorize another to handle financial and property matters — bank accounts, real estate transactions, tax filings, business decisions.

SDCL 59-12-2(2) excludes a power to make health care decisions from the scope of this chapter; the chapter's statutory form also says it does not authorize an agent to make health-care decisions for the principal. The chapter does not delegate parental rights, child custody, school enrollment authority, or medical consent for a minor.

A power of attorney under SDCL 59-12:

• Can authorize an agent to manage the parent's financial affairs, including paying support expenses for the child
• Cannot authorize school enrollment
• Cannot authorize medical or dental care
• Cannot grant custody or parental decision-making authority
• Must be signed and acknowledged before a notary (SDCL 59-12-4)
• Can be revoked by the parent at any time in writing

What Guardianship Covers

Guardianship under SDCL Chapter 29A-5 is a court appointment that gives the guardian responsibility for the minor's support, care, health, and education, subject to the order and any other custody order. The court appoints a guardian on petition, after notice and a hearing; regular appointments require record checks and training under SDCL 29A-5-110.

South Dakota separates guardianship (authority over the person) from conservatorship (authority over the estate/finances). You can have one without the other, or both.

Temporary guardianship under SDCL 29A-5-210 is available when an immediate need exists and appointment is in the child's best interests. It is capped at six months.

Full guardianship under SDCL Chapter 29A-5 has no fixed short term, but a minor's guardianship ends at majority, on transfer of jurisdiction, or by court order. In certain child-protection cases, the court may continue it until age 21 (SDCL 29A-5-505).

Side-by-Side Comparison

When Each One Makes Sense

Power of attorney is useful when a parent is temporarily unavailable — deployed, traveling, in short-term treatment — and needs someone to handle the parent's financial affairs that support the child. A nondurable power of attorney ends if the parent becomes incapacitated.

Guardianship is a court appointment that can give authority over the child's medical and educational decisions and day-to-day care as provided by the order. SDCL 13-28-10 provides a separate school-residency request process. If a parent cannot or will not sign a private document, consult a lawyer about whether court authority is needed for the decisions at issue.

The Middle Ground: Informal Tools

Between a financial-only POA and a full court guardianship, South Dakota offers two statutory mechanisms that don't require going to court:

• SDCL 13-28-10 for school enrollment — you may request that the school board accept the child as a resident
• SDCL 20-9-4.2 for emergency medical care — doctors can treat without consent when life or health is threatened

For routine medical care, a private parent-signed consent letter (not governed by SDCL 59-12) can fill part of the gap, though clinics aren't obligated to accept it.

Filing for Guardianship

If you determine that guardianship is the right path:

1. File in the county where the minor resides or is present; if the minor was admitted to a facility by court order, file in that court's county (SDCL 29A-5-108).
2. Submit the nominee's Interstate Identification Index criminal-history check and South Dakota state-court civil-judgment check for abuse, neglect, or exploitation of an elder or adult with a disability (SDCL 29A-5-110).
3. Complete State Bar-approved guardian training before appointment. The court may not require checks or training for a temporary appointment and may waive them for good cause (SDCL 29A-5-110 and 29A-5-119).
4. For a regular guardianship petition, at least 14 days before the hearing, personally serve the minor if age 10 or older and mail notice and the petition to the entities and individuals age 10 or older named in the petition (SDCL 29A-5-204). Temporary appointments have different notice rules under SDCL 29A-5-210.
5. Attend a court hearing

A child age 14 or older can nominate their own guardian under SDCL 29A-5-202, subject to the court's best-interest evaluation.

One restriction to know: under SDCL 29A-5-106, a nonparent may not use that chapter to seek custody if a proceeding under SDCL chapters 25-3, 25-4, 25-5A, 25-6, 25-8, 26-7A, 26-8A, 26-8B, or 26-8C is pending, or if another court has continuing jurisdiction over the child.

Free Help With the Decision

East River Legal Services (1-800-952-3015) and Dakota Plains Legal Services (1-800-658-2297) help qualifying South Dakota families figure out whether guardianship is needed and can assist with the filing. The South Dakota School and Medical Consent guide includes a decision flowchart showing when informal tools are enough and when guardianship becomes the better route.

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