Transfer of Rights - Parents
Transfer of Rights Guide for Students with Disabilities
Parents & Guardians
Learn more about different options to consider when preparing for your student with a disability to become an adult. Find information and resources regarding a student's transfer of rights.
Transfer of Rights for Students with Disabilities
Parents & Guardians
SD Law Says:
- The child will legally become an adult at age 18.
- They will be responsible for making their own decisions - no matter how significant their disability.
- Parents/Guardians will lose their right to make decisions on the child's behalf.
If you believe the child's disability prevents them from making decisions to keep them healthy and safe, you need to plan ahead to ensure a power of attorney, conservatorship, and/or guardianship is in place when the child turns 18.
It is best to allow a young adult to keep as many rights as possible. Carefully consider his/her limitations - and abilities - when making these decisions.
Power of Attorney
If the person has the ability to understand and sign contracts, consider Power of Attorney.
Young adult giving authority is called Principal.
Person receiving authority is called Agent or Attorney-in-Fact.
There are two types:
Power of Attorney
- Authority given orally or in writing (in writing is best)
- Authorizes agent to act on behalf of principal
- Terminates when principal: revokes the authority, dies, becomes incapacitated
Durable Power of Attorney
- Attorney should help write the document
- Sets out agent's authority to act on principal's behalf, even if principal becomes incapacitated
- Can go into effect now or upon principal's incapacity
- Terminates when principal: revokes (prior to incapacity), dies
Information on Power of Attorney can be found in South Dakota Codified Law (SDCL) Title 59.
Conservators & Guardians
In situations where the person does not have the capacity to sign contracts and needs help making decisions, Conservatorship and/or Guardianship is available in South Dakota to fill that need.
Conservator
What
Responsible for only a person's estate and finances
Who
- One or more adults; or
- Public agency; or
- Non-profit corporation; or
- Bank or trust company
How
Appointed by a judge during a court hearing
Guardian
What
Responsible for one or more areas of a person's affairs (except finances) and helps make decisions
Who
- One or more adults; or
- Public agency; or
- Non-profit corporation
How
Appointed by a judge during a court hearing
How it works
Find attorney with conservatorship and/or guardianship experience. Expect to pay $500 or more. South Dakota Establishment Grant can assist with $500. Apply at dhs.sd.gov/gdn/EstablishmentPage3.aspx.
Attorney will file petition along with current evaluations, IEP, and financial statements.
Court hearing will be set within 60 days of filing petition.
Attorney mails letter to the person and family members to notify them of petition for conservatorship and/or guardianship.
Attend court, and the judge determines if the person is in need of a conservator and/or guardian and the type (full, limited, temporary).
The judge issues order appointing conservator and/or guardian. The person in need of a conservator and/or guardian can appeal the decision within 30 days.
The court order can be modified as needed or completely revoked if the person no longer needs assistance.
3 Different Types of Conservators & Guardians
Full
All areas of a person's life
Temporary
Need help right away, but only for a short time
Limited
Only some areas of a person's life
Responsibilities of a Conservator & Guardian
- Encourage person to be an active participant in decision-making process and act on their own behalf.
- Consider the desires of the person.
- Be knowledgeable about the person.
- Make decisions to keep the person safe an healthy.
- Act in the person's best interests.
Information on the South Dakota Guardianship and Conservatorship Act can be found in South Dakota Codified Law (SDCL) 29A-5-101 through 29A-5-510.
Contact Information
Lifescape
1-800-584-9294
Disability Rights South Dakota
1-800-658-4782
South Dakota Parent Connection
1-800-640-4553
This document is for informational purposes only. It is not intended as legal advice. Because each situation is unique, it is recommended that you consult an attorney to discuss all options. The contents and printing were developed under a grant from the U.S. Department of Education (Project #H328M140021). However, the contents do not neccessarily represent the policies of the Department of Education, and you should not assume endorsement by the Federal Government.