May 3, 1982

Mr. James Ellenbecker 
Secretary 
Department of Social Services 
Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 82-26

Status of Persons Adjudicated and Committed by the Subcommission for Control of the Feebleminded

Dear Mr. Ellenbecker:

You have requested an official opinion from this office in regard to the  following factual situation:

FACTS: 

Many people were committed to the supervision and control of the Subcommission for the Control of the Feebleminded.  The commitment was based on a finding of feeblemindedness or mental retardation. No finding of incompetence was made.  The Subcommission performed guardianship-like duties, although guardianship was not ordered.  It appears that the purpose of the commitment procedure was primarily to provide services to the persons adjudicated feebleminded.  The Commission was abolished during the 1975 legislative session.  The duties of the Commission were not delegated to anyone.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Was a guardian-ward relationship established by the adjudication and commitment before the Subcommission for the Control of the Mentally Retarded?  If yes, did it survive the abolition of the Commission? 

2.  Was the adjudication of mental retardation and commitment a finding of  mental incompetence?

IN RE QUESTION NO. 1:

Until repealed in 1975, SDCL 27-12 and SDCL 27-15 provided for the Commission and Subcommission for the Mentally Retarded.  SDCL 27-12-8 set forth the general duties of the Subcommission. 

Specific authority is hereby granted to such subcommission to identify, examine, commit, establish guardianships, transport and maintain the protective custody of any mentally retarded person, and shall be responsible for the supervision, and welfare of the mentally retarded in their respective counties under such rules and regulations as are provided by the state commission.

Pursuant to SDCL 27-15-4, the Commission was to make surveys to identify persons who may be mentally retarded and to refer these people to the Subcommission.  Then, according to SDCL 27-15-7, it was the duty of the Subcommission to determine whether such persons were mentally retarded.  And SDCL 27-15-11 required the Subcommission to institute proceedings to have any child committed to Redfield State Hospital and School who the Subcommission determined was retarded.

And SDCL 27-15-13 provided: 

When any person belonging to any of the classes designated in this chapter is found in any county in this state, without a legal guardian, such person may be committed to the custody of the superintendent of the Redfield state hospital and school by the county judge, on the complaint of the state's attorney, and the county shall pay the expenses of such commitment and transportation to such institution.  When a person is committed, as in this section provided, the superintendent of the Redfield state hospital and school shall have the legal custody of such person with all the rights of a guardian of the person as provided by law.

Therefore, it was the duty of the Subcommission to establish guardianships for the mentally retarded, but not its duty to become the guardian.  SDCL 27-15-13 provided for an automatic guardianship, but only for those individuals admitted to Redfield State Hospital and School who did not already have a guardian.

The next question then is whether this guardianship survived the abolition of the Commission in the 1975 legislative session.  SDCL 27-15-13 was repealed by S.L. 1975, ch. 182, §  84 and not replaced by any similar statute.  Rather, at the same time that the Legislature repealed SDCL 27-15-13, it enacted SDCL 27-12-15 (recodified at SDCL 27B-1-5).  This statute provides: 

No person shall be deemed incompetent to manage his affairs, to hold professional or occupational or vehicle operator's licenses, to marry and  obtain a divorce, to register and vote, or to make a will, solely by reason of his admission of commitment to a facility or because he was adjudicated mentally retarded.

Because this statute specifically provides that those admitted to Redfield State Hospital and School are not deemed mentally incompetent, it is my opinion that the guardianship established by SDCL 27-15-13 did not survive the abolition of the Commission.

IN RE QUESTION NO. 2:

In light of SDCL 27B-1-15, it is my opinion that the adjudication of mental retardation and commitment to Redfield State Hospital and School is not a finding of mental incompetence.

Respectfully submitted,

Mark V. Meierhenry
Attorney General