§ 29A-5-312 — Hearing for alleged person in need of protection--Duty of jury--Duty of court.

The hearing on the petition to appoint a guardian or conservator may be held at such convenient place as the court directs, including the place where the person alleged to need protection is located. The hearing may be closed to the public on the request of the person alleged to need protection, the person's attorney, or on the court's own motion. The proposed guardian or conservator shall attend the hearing except for good cause shown. Any individual or entity may apply for permission to participate at the hearing, and the court shall grant the request if reasonably satisfied that the applicant's participation would be in the best interests of the person alleged to need protection. 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 cross - examine all witnesses. If present at the hearing and if not represented by an attorney, the court shall orally inform the person alleged to need protection of these rights, of the contents of the petition, and of the nature, purpose, and legal effect of the appointment of a guardian or conservator. The sole responsibility of the jury, if requested, shall be to determine whether the person alleged to need protection is a person for whom a guardian or conservator may be appointed. The standard of proof to be applied in determining whether the person alleged to need protection is a person for whom a guardian or conservator may be appointed shall be that of clear and convincing evidence. The determination as to whether a guardian or conservator will be appointed, the type thereof, and the specific areas of protection, management and assistance to be granted, shall be for the court alone to decide. In making that determination, the court shall consider the suitability of the proposed guardian or conservator, the limitations of the person alleged to need protection, the development of the person's maximum feasible self - reliance and independence, the availability of less restrictive alternatives, and the extent to which it is necessary to protect the person from neglect, exploitation, or abuse. The court shall make findings of fact and conclusions of law in support of any orders entered at the hearing if requested by the person alleged to need protection, by the person's attorney, or by any other interested person.

Legislative History

SL 1993, ch 213, § 40; SDCL 30-36-40; SL 1995, ch 167, § 181.