Can Out-of-State Children Obtain Guardianship of a Parent in South Dakota?

Receiving a late-night phone call from a hospital social worker in Sioux Falls, Rapid City, or Brookings informing you that your aging parent has suffered a debilitating stroke or advanced dementia episode creates an immediate logistical crisis when you live in Minnesota, Colorado, Texas, or California. Out-of-state adult children often worry that living hundreds of miles away disqualifies them from being appointed as their parent's legal guardian or conservator in a South Dakota circuit court.

Fortunately, South Dakota law does not impose a state residency requirement on family members seeking to protect an incapacitated parent. By satisfying South Dakota's resident agent statute, leveraging interstate jurisdiction rules under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), and utilizing remote court technology, nonresident children can seamlessly secure guardianship and, when necessary, legally relocate their parent to their own home state.

Nonresident Eligibility and the UAGPPJA in South Dakota

Under S.D. Codified Laws § 29A-5-110, any adult individual may be appointed as a guardian, a conservator, or both, provided the circuit court finds the nominee is suitable, qualified, and capable of providing an active and suitable program of guardianship or conservatorship for the protected person. Furthermore, when an incapacitated parent has not executed a prior written nomination while competent, S.D. Codified Laws § 29A-5-304 directs the circuit court to consider the recommendations of the spouse, parents, and adult children or other interested relatives-giving attentive out-of-state children strong statutory standing over strangers or corporate fiduciaries, as highlighted by the Supreme Court of South Dakota in In re Guardianship and Conservatorship of Flyte, 2025 S.D. 21, 19 N.W.3d 513 (SD Supreme Court 2025).

Before filing a petition, however, out-of-state children must file in the correct state under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), codified in South Dakota at S.D. Codified Laws § 29A-5A-101 through S.D. Codified Laws § 29A-5A-503. Under S.D. Codified Laws § 29A-5A-202 and S.D. Codified Laws § 29A-5A-203, South Dakota circuit courts follow a strict three-tier jurisdictional hierarchy to determine which state has authority to appoint a guardian or conservator:

1. Home State Jurisdiction (S.D. Codified Laws § 29A-5A-203(1)): South Dakota has primary, exclusive jurisdiction if the parent was physically present in South Dakota for at least 6 consecutive months (including temporary absences) immediately before the filing of the petition. Even if you recently brought your parent to your home in another state for medical care a few weeks ago, South Dakota remains the legal Home State until six months have elapsed.
2. Significant-Connection State Jurisdiction (S.D. Codified Laws § 29A-5A-203(2)): A state where the parent has a significant connection other than mere physical presence-evaluated under S.D. Codified Laws § 29A-5A-201(b) based on the location of the parent's family, real property, bank accounts, voter registration, and medical doctors-may exercise jurisdiction if the Home State declines jurisdiction under S.D. Codified Laws § 29A-5A-206.
3. Special Emergency Jurisdiction (S.D. Codified Laws § 29A-5A-204): A court in a state where the parent is currently physically present has special jurisdiction to appoint an emergency guardian for up to 90 days under S.D. Codified Laws § 29A-5-315, or to issue a protective order over real or tangible personal property located within South Dakota.

Key Procedural Rules for Out-of-State Guardians

To persuade a South Dakota circuit judge that you can effectively manage your parent's health and estate from out of state-as reviewed under the abuse-of-discretion standard in Matter of Guardianship of Rich, 520 N.W.2d 63 (SD Supreme Court 1994)-you must comply with three specialized procedural rules.

The Requirement to Appoint a South Dakota Resident Agent

Because a nonresident guardian or conservator lives outside the territorial subpoena power of South Dakota sheriffs, S.D. Codified Laws § 29A-5-113 mandates that every nonresident guardian or conservator must designate a resident agent residing in South Dakota to accept service of process and court notices. This written designation must be filed with the county Clerk of Courts before your Letters of Guardianship or Conservatorship (S.D. Codified Laws § 29A-5-314) can be issued. If you do not have a sibling or trusted relative living in South Dakota to serve as your resident agent, your South Dakota elder law attorney or a registered corporate agent in Sioux Falls, Rapid City, or Pierre can fulfill this statutory role for you.

Additionally, if you are seeking appointment as conservator over your parent's bank accounts or land, S.D. Codified Laws § 29A-5-111 authorizes the court to require a corporate surety bond-which judges frequently require when a fiduciary resides out of state, unless the parent's liquid funds are placed into a court-restricted South Dakota bank account or a revocable trust.

Logistics of Remote Court Hearings and Out-of-State Testimony

Out-of-state adult children rarely need to buy multiple last-minute airline tickets to attend routine guardianship hearings in South Dakota. Under S.D. Codified Laws § 29A-5A-106, in any guardianship or protective proceeding, a South Dakota circuit court may permit a witness or party located in another state to be deposed or to testify by telephone, audiovisual, or other electronic means. South Dakota's Unified Judicial System utilizes interactive courtroom video conferencing (such as Zoom or Microsoft Teams interactive court links) across all seven judicial circuits.

Moreover, under S.D. Codified Laws § 29A-5A-104 and S.D. Codified Laws § 29A-5A-105, a South Dakota judge can communicate directly with a judge in another state and request the out-of-state court to hold an evidentiary hearing, order a medical evaluation under S.D. Codified Laws § 29A-5-306, or conduct a home-study investigation.

How to Legally Move the Ward Out of South Dakota to Your Home State

Once appointed as guardian in South Dakota, S.D. Codified Laws § 29A-5-402 grants you the general authority to determine the protected person's residence, provided it is consistent with their best interests and any court orders. However, if you plan to move your parent permanently to a memory-care facility or your home in another state-and want to stop filing annual reports in South Dakota-you must formally transfer the guardianship under S.D. Codified Laws § 29A-5A-301 and S.D. Codified Laws § 29A-5-109:

• Phase 1 (South Dakota Provisional Order): File a verified Petition to Transfer Guardianship/Conservatorship to Another State under S.D. Codified Laws § 29A-5A-301(a) and notify all interested persons. The South Dakota circuit court will issue a provisional order granting the transfer upon finding under S.D. Codified Laws § 29A-5A-301(d) that the parent is physically present in or is reasonably expected to move permanently to the other state, that plans for care in the new state are reasonable and sufficient, and that adequate arrangements have been made for managing the parent's property.
• Phase 2 (Receiving State Acceptance & South Dakota Final Order): Take a certified copy of South Dakota's provisional order to the probate court in your home state and file a petition to accept the transfer under that state's UAGPPJA statute (mirroring S.D. Codified Laws § 29A-5A-302). Once your home state issues its provisional order accepting the case, file that order along with your final accounting (Form UJS-141, South Dakota, Unified Judicial System, Conservator's Annual Accounting) in the South Dakota circuit court, which then enters a final order terminating the South Dakota case under S.D. Codified Laws § 29A-5A-301(f).

Step-by-Step Process in South Dakota

Whether your parent resides in Sioux Falls, Rapid City, Aberdeen, Brookings, Yankton, or Pierre, follow these five steps to obtain guardianship from out of state:

Step 1: Obtaining the Mandatory Evaluation Report and Financial Statement

Under S.D. Codified Laws § 29A-5-306, every South Dakota guardianship petition must include a written evaluation report prepared by a licensed physician, psychologist, or other qualified professional assessing the parent's mental and physical incapacity, along with a Statement of Financial Resources under S.D. Codified Laws § 29A-5-307. Coordinate with your parent's South Dakota geriatrician or hospitalist to sign the evaluation report.

Step 2: Completing Your FBI Background Check, Training, and Resident Agent

Request fingerprint cards to submit to the South Dakota Division of Criminal Investigation, Pierre for the mandatory state and federal Interstate Identification Index criminal record check and civil abuse registry check under S.D. Codified Laws § 29A-5-110. Simultaneously, complete the free online fiduciary training course offered through the State Bar of South Dakota, Pierre under S.D. Codified Laws § 29A-5-119, and sign a Resident Agent Designation under S.D. Codified Laws § 29A-5-113 naming your South Dakota attorney or a local relative.

Step 3: Filing the Petition in the Parent's County Circuit Court

Have your South Dakota attorney file the Petition for Appointment of Guardian and Conservator (S.D. Codified Laws § 29A-5-305), the sealed pre-hearing medical evaluation (S.D. Codified Laws § 29A-5-311), and Form UJS-232, South Dakota, Unified Judicial System, Civil Case Filing Statement in the county where your parent resides or is present (S.D. Codified Laws § 29A-5-108)-such as the Second Judicial Circuit Court, Minnehaha County, Sioux Falls, the Seventh Judicial Circuit Court, Pennington County, Rapid City, or the Third Judicial Circuit Court, Brookings County, Brookings.

Step 4: Serving Personal Notice on the Parent and Mail Notice on Relatives

Under S.D. Codified Laws § 29A-5-308, the court will schedule a hearing to take place within 60 days. Your parent must be personally served with the petition and notice of hearing at least 14 days prior to the hearing, while all adult siblings and close relatives listed in the petition must be served by mail at least 14 days before the hearing.

Step 5: Attending the Remote Hearing and Filing Post-Appointment Reports

Your attorney will file a motion under S.D. Codified Laws § 29A-5A-106 allowing you to appear and testify via interactive court video from your home state. Once the judge signs the Order of Appointment and you file your Acceptance of Office and bond (S.D. Codified Laws § 29A-5-111), mail the order to all required parties within 14 days (S.D. Codified Laws § 29A-5-313), file your initial inventory within 90 days on Form UJS-140, South Dakota, Unified Judicial System, Conservatorship Initial Inventory (S.D. Codified Laws § 29A-5-407), and either maintain annual reports (Form UJS-142, South Dakota, Unified Judicial System, Guardian's Annual Report) or petition to transfer the case to your home state under S.D. Codified Laws § 29A-5A-301.

How Much Does it Cost in South Dakota?

Out-of-state adult children should budget for the following court, background check, and legal expenses in South Dakota (most of which can be reimbursed from the parent's estate once approved by the court under S.D. Codified Laws § 29A-5-116):

• South Dakota Circuit Court Filing Fee: The statutory clerk filing fee to open a new guardianship and conservatorship case in South Dakota is $72.00, plus $50.00 to $75.00 for personal sheriff service on the protected person.
• Fingerprint Criminal Background Check and Training: The DCI/FBI fingerprint check under S.D. Codified Laws § 29A-5-110 costs $43.25 (plus $15 to $25 for local fingerprinting in your home state), while the mandatory State Bar training curriculum under S.D. Codified Laws § 29A-5-119 is $0 (free online).
• Court-Appointed Attorney or Representative Fees: If the court appoints counsel or a court representative for the parent under S.D. Codified Laws § 29A-5-309 or S.D. Codified Laws § 29A-5-310, those fees typically range from $500 to $1,500 and are paid from the protected person's estate.
• Elder Law Attorney Fees and Interstate Transfer: Retaining a South Dakota guardianship lawyer to handle an uncontested nonresident appointment typically costs $2,000 to $4,000 (plus the 4.2% South Dakota state sales tax on legal services). Executing a subsequent interstate UAGPPJA transfer under S.D. Codified Laws § 29A-5A-301 typically costs an additional $1,500 to $3,000 across the two states.

How Long Does the Process Take?

Here are the realistic timelines for an out-of-state child seeking guardianship in South Dakota:

• Emergency Temporary Guardianship: Under S.D. Codified Laws § 29A-5-315, if your parent is hospitalized and needs immediate medical placement or financial protection, a temporary guardianship (valid for 90 days) can be obtained in 2 to 7 days, with criminal background checks and training waived for the temporary stage under S.D. Codified Laws § 29A-5-110.
• Permanent Guardianship Appointment: Under S.D. Codified Laws § 29A-5-308, the hearing must be held within 60 days of filing the petition (with at least 14 days' notice), meaning most uncontested appointments are completed in 30 to 50 days.
• Interstate UAGPPJA Transfer Timeline: Coordinating provisional and final transfer orders between a South Dakota circuit court and your home state's probate court under S.D. Codified Laws § 29A-5A-301 typically takes 60 to 120 days.

If you live out of state and need to step in quickly for an aging parent in South Dakota, connect with a local South Dakota guardianship attorney in our directory who can serve as your resident agent and handle your circuit court filings remotely.

Frequently Asked Questions (FAQ)