Frequently Asked Questions
Guardianship & Conservatorship
- What is the difference between a guardian and a conservator?[+]A guardian is an individual who is appointed by the court and is responsible for managing the personal affairs of a minor or protected person. A conservator is an individual who is appointed by the court and is responsible for managing the estate and financial affairs of a minor or protected person. See SDCL 29A-5-102.
- Who can become a Guardian or Conservator?[+]Nearly all adult individuals may act as a guardian, conservator, or both, if that adult individual is capable of providing an active and suitable program of guardianship or conservatorship, and that adult individual is not employed by any public agency, entity, or facility that is providing substantial services or financial assistance to the minor or protected person. Public agencies, banks, trust companies, and nonprofit corporations may also serve as a guardian, conservator, or both, if they satisfy certain requirements. See SDCL 29A-5-110.
If there is no adult individual, nonprofit corporation, bank, trust company, or other public agency qualified and willing to serve as guardian or conservator, then the Department of Human Services or the Department of Social Services may be appointed as guardian, conservator, or both, for individuals under that department's care or to whom that department is providing services or financial assistance. See SDCL 29A-5-110.
- When is a guardianship appropriate?[+]A court can only appoint a guardian for an individual who requires the assistance or protection of a guardian. This assistance or protection can be due to an individual whose ability to respond to people, events, and environments is impaired to such an extent that the individual lacks the capacity to meet the essential requirement for his health, care, safety, habilitation, or therapeutic needs. See SDCL 29A-5-302.
If the individual you are concerned about is described above, they may qualify for being in need of a guardian.
- When is a conservatorship appropriate?[+]A court can only appoint a conservator for an individual who requires the assistance or protection of a conservator. This assistance or protection can be due to an impaired ability to respond to people, events and environments. It can also be due to a lack of capacity to manage property or financial affairs or provide for his/her own support or the support of legal dependents. See SDCL 29A-5-303.
If the individual you are concerned about is described above, they may qualify for being in need of a conservator.
- When do I need to have an Initial Consultation?[+]If you are unsure about what needs to be done in order to protect your rights, then you should call and setup an initial consultation. Our initial consultations are always free of charge. Please be aware, that our office only schedules initial consultations for cases that we intend to take.
- How much time do I have before I have to start a lawsuit?[+]The South Dakota Legislature and the United States Congress have created many "Statutes of Limitations" (SOL) that define the time periods that a lawsuit must be commenced within, or the claim will be barred. These time periods vary with the type of claim, the people involved, and the jurisdiction whose law applies.
For example, if you are in an automobile collision in South Dakota and the person who injured you is not working at the time of the collision, then the statute of limitations is likely three years from the date of the collision. However, if that individual was working for a state governmental entity, in addition to the SOL, there is a notice that must be given within as little as six months or the claim is barred. If the individual works for the federal government, then there is a special notice that must be given to the federal government within two years of the collision.
The above is just an example to demonstrate how a single incident can result in several different SOL based on the people involved. This example should not be used to gauge what your statute of limitations is. During our free initial consultation we discuss the facts of your case so we can advise you on what the SOL governing your case will be.
- How long will my case take?[+]The length of your case will depend on many factors. First and foremost, how long it takes for you to achieve Maximum Medical Improvement (MMI). For some people, MMI means that their body is in the condition it was in before they were injured (i.e. they fully healed). For others, it means that their doctor cannot prescribe any further treatment with the hope of improving the patient's current state. This may require further treatment to sustain the patient's current condition, but the doctor does not believe the patient will get any better than they currently are.
Once you have reached MMI, the next step is to assemble all the evidence that is going to be necessary in order to prove what your case is worth. This means that we have to speak with the people who have known you both before and after you were injured. These people are crucial in helping to prove the amount of disruption an injury has had on your life (both physically and emotionally). This also means that we have to speak with doctors who have managed your case and determine what they believe they can scientifically prove was the cause of your injury. Depending on your case, there may also be experts from other fields that are necessary to prove your case (such as bio-mechanic engineer or an accident deconstructionist). In addition to the time it takes for us to acquire this information, the person or company that injured you then gets a chance to speak with them about the case.
At the end of the discovery phase, there is generally the negotiation period where each side evaluates the value of a case and makes an offer to settle the claim before going to trial (most cases end this way). If you agree with an offer that you are presented with, then you can settle the claim and it ends there. If you do not agree with the amount of an offer, or you do not receive an offer, then we take all the evidence we collected during the "Discovery" phase and proceed to a jury trial. It is possible after a jury trial, that the losing party may decide to appeal the case to the South Dakota Supreme Court because of an error that occurred at trial. The Supreme Court will then decide whether the case is over or whether it needs to be re-tried to a jury.
While each case is different, the general rule is that the more complex your case, the longer it is going to take. In South Dakota you only get one chance to present your case, so you have to make sure you get it right the first time.
- If I start a lawsuit, does that mean there will be a trial?[+]No, a lawsuit can be settled at any time. Starting a lawsuit means that you have begun the path towards a trial. We estimate that about 95 % of our cases settle prior to the trial. However, we prepare all of our cases as if there will be a trial. This allows us to demonstrate, with evidence, to the opposing party what the value of our client's claims are. This not only means that we will be ready for a trial, but it also substantially increases the likelihood that our clients will receive a settlement offer they are willing to accept.
- What is Probate?[+]Probate refers to the legal process of administrating the estate of a deceased individual. This administration includes determining estate liabilities, paying estate debts, and ultimately distributing the estate assets to the individuals entitled to receive the property.
- There is no will, is a probate still necessary?[+]A will does not affect whether an estate needs to go through probate. The role of a will is to prescribe how the estate is administered and to whom the property is distributed to. If there is no will, the State of South Dakota has a default set of rules that will decide how the estate is administered and who receives title to the estate property.
If the estate of the deceased individual has property within it, it likely will have to go through probate unless it is a small estate.
- How long does a probate take?[+]A probate should take the amount of time necessary to identify the debts of the estate, pay the debts of the estate, and then distribute the remaining property to the individuals entitled to receive it. Identifying debts of the estate can be a time-consuming task since not all debts may be known by the survivors, and some debts may be disputed. Paying the valid debts of an estate can also be time-consuming because it may require the liquidation of property into money in order to satisfy the debt. This can sometimes lead to arguments about which property should be liquidated. While the liquidation concerns can carry over into the distribution phase of a probate, the distribution phase can also lead to disputes over how much and to whom property should be distributed.
Generally, people that plan their estates make the probate phase a much faster (and sometimes unnecessary) process for the individuals they are leaving property to.
- Do I need a will?[+]When a South Dakotan dies without a will (which is called dying 'intestate'), South Dakota provides for a default set rules ('intestate succession') that will determine how and to whom the deceased individual's estate is administered and distributed. You need a will (or other Estate Planning device) if you wish to define how your estate is administered, or to deviate from South Dakota's default rules of property distribution.
- What do I need to do before my initial consultation?[+]Prior to the initial consultation we would like to have a list of all your assets and debts, and copies of important property documents (deed to home, title to: vehicles, life insurance policies, bank accounts, retirement accounts, etc …). If you can get us this information before hand, we can spend the initial consultation advising you on how to best plan your estate, rather than trying to figure out what is in your estate.
- My will was executed before I got married, do I need a new will?[+]It is recommended that you update a will that does not account for important life or property changes so there are no ambiguities regarding the disposition of your estate. However, despite a will predating a marriage, South Dakota law does allow for the possibility that the surviving spouse could receive whatever share he/she would have received had the will never have been created, unless: (1) The will was created in contemplation of marriage to the surviving spouse; (2) The will expressed the intention to be effective notwithstanding subsequent marriages; or (3) There was a transfer outside the will intended to be a transfer in lieu of being included within the will. See SDCL 29A-2-301.
- I have a will, now what?[+]The most common misperception about a will is that it automatically distributes your property upon your death. However, a will is more akin to a set of instructions than it is a distribution mechanism. It is the probate court (or a power given by the probate court) that actually changes title of property from you to whomever you prescribed in your will. The probate proceeding itself, by law, takes a minimum of four months to complete and it can get expensive depending on the complexity of your estate, or if someone challenges the distribution of property.
Fortunately, there are estate planning mechanisms that allow you to potentially by-pass probate all together. These mechanisms can range from simply altering title to your existing property, to setting up extensive trusts. If you are interested in putting together a more complex estate plan, please call us for more information.
- Do I need to report my injury?[+]Yes, SDCL 62-7-10 requires a written notice of the injury shall be provided to the employer no later than three business days after its occurrence. The notice need not be in any particular form, but must advise the employer of when, where, and how the injury occurred. Failure to provide this notice prohibits the claim for compensation unless the employee can show:
- The employer, or the employer's managerial or supervisory representative, had actual knowledge of the injury and its worked related nature; or
- The employer was given written notice after the date of the injury and the employee had good cause for failing to gives written notice within the three business-day period, which determination shall be liberally construed in favor of the employee.
- Does Quitting my job affect my claim?[+]Quitting your job can have an effect on your worker's compensation claim. The effect it has on your claim depends on the benefit your seeking. For example, some benefits are intended to replace temporary or permanent loss of wages from your inability to work. These benefits may be terminated if you refuse to work for your employer if your employer has work for you within your medical restrictions. However, there are other types of benefits, such as medical benefits, that might not be affected by your decision to work for your employer. However, the answer to this question can be quite complicated, if you don't know the answer, you may want to request an initial consultation.
- Can my employer fire me for turning in a Claim?[+]You may already be aware that it is wrong to firing someone because of their age, race, creed and/or disability. Similarly, being fired for turning in a lawful worker's compensation notice of claim is unlawful and can give rise to a separate lawsuit called "retaliatory discharge" and, can even result in punitive damages. However, not every termination of an injured employee is wrongful. Some employees who can no longer do their jobs and who cannot be accommodated by their employer may lawfully be "let go".
This can be a complicated and confusing area of the law so when you are not certain where you stand, it would be a good idea to ask us.
- What if I can no longer do my former job due to my work injury?[+]This is precisely the kind of case Nasser Law specializes in. This type of case is called a Permanent Total Disability (PTD) Claim or sometimes, an Odd Lot Disability Claim. It involves an employee who has been seriously injured and even after achieving his/her maximum medical improvement cannot sustain "suitable, substantial, and gainful employment (SSGE)".
[Now we need to answer the question about what this person should know to go forward].
- Can I apply for social security disability (SSDI)?[+]Yes, if worker's compensation injuries have you off work, your worker's compensation insurer is not paying you wages that you need to support you and your family, and your disability will last one year or more, then you can apply for SSDI. However, applying for and receiving SSDI is not a reason to "withdraw from the job market" if you are able to look for work. It is important to your claim that there is no confusion about your motivation to work.
- My doctor says I can't work; the company doctor says I can, now what?[+]It is very common for an "Independent Medical Evaluator" (IME) to be hired by an insurance company in a worker's compensation claim. It is not uncommon for these IMEs to disagree with treating doctors, adopt a position that will defeat your claim, and/or recommend a treatment approach that will be cheaper for the insurance company. Ultimately, the South Dakota Department of Labor must resolve disputes between medical witnesses.
If you find yourself in the situation where medical experts disagree with one another, it is a good idea to call for a consultation so we can help explain your rights and what to expect from this process.
204 S. Main Avenue, Sioux Falls, SD 57104