November 20, 1980

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

Official Opinion No. 80-67

Corporations as Guardians

Dear Mr. Ellenbecker:

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

FACTS: 

There are about 11,000 developmentally disabled citizens in South Dakota.  Many of these citizens are in need of a guardian and have no relatives either willing or able to become the guardian. 

The South Dakota Advocacy Project plans to develop the South Dakota Guardianship Program as a private non-profit corporation that will assume the guardianship of individuals who need a guardian. This project is being developed in coordination with the Department of Social Services as an alternative to the state assuming guardianship of these individuals.

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

QUESTION: 

May a corporation be appointed the guardian of the person and/or of the estate of an individual?

SDCL 30-26-1 provides: 

A guardian is a person appointed to take care of the person or property of another. 

The person over whom or over whose property a guardian is appointed is  called a ward. 

A general guardian is the guardian of the person, or of the property of the ward within this state, or of both.  Every other guardian is a special guardian.

SDCL 2-14-2 provides: 

Terms used throughout the code of laws enacted by § 2-16-3, unless the context otherwise plainly requires, shall mean: 

     . . . 

(16)  'Person' includes natural persons, partnerships, associations, and corporations.

Guardianships are found in SDCL chapters 30-26 through 30-32. Nowhere in these chapters is the term 'person' defined.  Nor does it appear from the context of that chapter that the term 'person' is to be limited to only natural persons.

In answer to your question, therefore, it is my opinion that corporations may be guardians of the person and/or of the estate of an incompetent individual.

Respectfully submitted,

Mark V. Meierhenry
Attorney General