Nonlawyer Guardians Cannot Perfect Appeals in South Dakota: Notices of Appeal Filed on Behalf of Wards Are Ineffective to Invoke Appellate Jurisdiction

Introduction

In Danielson v. LifeScape, 2025 S.D. 56, the Supreme Court of South Dakota dismissed an appeal because it was initiated by a nonlawyer guardian who attempted to represent his protected sister in court. The decision squarely addresses whether a guardian may file a notice of appeal and litigate on behalf of a protected person without being a licensed attorney. The Court held that South Dakota law does not permit such representation and that a notice of appeal filed by a nonlawyer guardian on another’s behalf is ineffective to invoke the Supreme Court’s appellate jurisdiction.

The dispute began when LifeScape, a provider of services to adults with developmental disabilities, terminated services for Terese Lynn Danielson following documented episodes of aggression. Terese’s brother and court-appointed guardian, Bruce Danielson, pursued administrative and judicial review of the termination. After the Department of Human Services adopted the Office of Hearing Examiner’s proposed decision upholding LifeScape’s action, Bruce appealed to the circuit court and later to the Supreme Court—both times acting without an attorney. The circuit court gave Bruce thirty days to obtain counsel, and when he did not, it dismissed the appeal. Bruce then filed a notice of appeal in the Supreme Court, again without counsel. The Supreme Court dismissed the appeal for lack of a valid, attorney-filed notice of appeal.

The case presents two interrelated issues: (1) the boundary between a guardian’s authority to decide to sue or defend on behalf of a protected person and the prohibition on the unauthorized practice of law; and (2) whether a notice of appeal filed by a nonlawyer on behalf of another is a nullity that fails to invoke appellate jurisdiction. Although the Court dismisses on jurisdictional grounds, a special concurrence highlights an alternative approach used in other jurisdictions that sometimes allows a timely nonlawyer-filed notice of appeal to be cured by obtaining counsel.

Summary of the Opinion

Justice Myren, writing for the Court, holds that:

South Dakota’s guardianship rule (SDCL 15-6-17(c)) authorizes a guardian or conservator to make litigation decisions—such as whether to sue or defend—on behalf of a protected person, but it does not authorize a guardian to engage in the practice of law.
South Dakota’s licensing statute (SDCL 16-16-1) prohibits the practice of law without a license. A nonlawyer may not represent another person in court.
Because Bruce Danielson is not a lawyer, his filing of the notice of appeal on Terese’s behalf was ineffective to invoke the Supreme Court’s appellate jurisdiction. The Court cites the long-standing rule that proceedings initiated by persons not entitled to practice law are a nullity (Stevens v. Jas. A. Smith Lumber Co., 54 S.D. 170, 222 N.W. 665, 666 (1929)).
Accordingly, the appeal is dismissed.

Justice Salter concurs. Justice Kern, joined by Justice DeVaney, concurs specially to acknowledge an alternative, curable-defect approach in other jurisdictions, which treats a nonlawyer-filed notice of appeal as a defect that may be cured if counsel promptly appears, rather than a jurisdictional nullity. Chief Justice Jensen did not participate.

Analysis

Precedents and Authorities Cited

SDCL 15-6-17(c): “Whenever a minor or incompetent person has a guardian or conservator, such guardian or conservator may sue or defend on behalf of the minor or incompetent person.” The Court reads this provision as conferring decision-making capacity to initiate or defend litigation, not as an exemption from attorney-licensing requirements. In other words, Rule 17(c)-type provisions address who has capacity to sue or be sued, not who may practice law.
SDCL 16-16-1: Prohibits the practice of law in any court of record without a license from the South Dakota Supreme Court and active State Bar membership. Violation is a Class 1 misdemeanor. This statute provides the backbone for the prohibition on nonlawyer representation.
Stevens v. Jas. A. Smith Lumber Co., 54 S.D. 170, 222 N.W. 665 (1929): The Court quotes Stevens for the proposition that “proceedings in a suit by a person not entitled to practice are a nullity.” While Stevens involved an answer filed by an out-of-state, unlicensed attorney, the majority applies its nullity principle to a notice of appeal filed by a nonlawyer on behalf of another.
Smith v. Rustic Home Builders, LLC, 2013 S.D. 9, 826 N.W.2d 357: The Court previously dismissed an appeal filed by a nonlawyer on behalf of a corporation. Justice Kern notes that Rustic Home did not explicitly label the filing a jurisdictional nullity, but it signals the Court’s long-standing insistence on attorney representation for entities or persons who cannot appear pro se.
SDCL 15-26A-4: South Dakota’s rule governing notices of appeal. The special concurrence observes that this rule does not expressly state that a notice of appeal filed by a nonlawyer is a jurisdictional nullity. This gap is central to the concurrence’s discussion of an alternative, curable-defect approach.
ARSD 46:11:08:05: The administrative rule governing provider-initiated termination of services for persons with developmental disabilities. The administrative hearing addressed whether LifeScape complied with this rule. The merits of that determination ultimately become unreviewable in the Supreme Court due to the defective notice of appeal.
Alternative approaches in other jurisdictions:
- Boydston v. Strole Dev. Co., 969 P.2d 653 (Ariz. 1998): Treats a nonlawyer-filed notice of appeal as a defect subject to cure by prompt appearance of counsel, rather than a per se nullity.
- Alexander & Baldwin, LLC v. Armitage, 508 P.3d 832 (Haw. 2022): Emphasizes case-specific factors such as the nonlawyer’s knowledge of impropriety, diligence in correcting the mistake, extent of participation, and prejudice to the opposing party.
- Downtown Disposal Servs., Inc. v. City of Chicago, 979 N.E.2d 50 (Ill. 2012): Rejects a per se nullity rule and allows defects to be cured in appropriate circumstances.
- Instituto de Educacion Universal Corp. v. U.S. Dep’t of Educ., 209 F.3d 18 (1st Cir. 2000): Characterizes the filing of a notice of appeal as “essentially ministerial,” suggesting flexibility when counsel appears promptly thereafter.
Guardianship funding and access-to-counsel cases:
- In re Guardianship of Sedelmeier, 491 N.W.2d 86 (S.D. 1992): Courts may appoint counsel for protected persons in guardianship actions, but the estate bears the cost; no statute authorizes shifting that cost to the county.
- Pfuhl v. Pfuhl, 2014 S.D. 25, 846 N.W.2d 778: Circuit courts lack statutory authority to appoint counsel for children in certain civil matters at county expense—reinforcing the limited statutory framework for publicly funded counsel outside criminal contexts.

Legal Reasoning

The Court’s reasoning proceeds in three principal steps:

Capacity versus representation: The Court distinguishes between a guardian’s capacity to make litigation decisions for a protected person (authorized by SDCL 15-6-17(c)) and the separate, licensing-based requirement that only attorneys may represent others in court (SDCL 16-16-1). A guardian may choose to sue or defend but must retain counsel to prosecute or defend the case in court.
Unauthorized practice of law and nullity: Relying on Stevens, the Court applies the “nullity” principle to filings made by nonlawyers on behalf of others. While Stevens involved a pleading (an answer) filed by an unlicensed lawyer, the Court treats that principle as applicable to the notice of appeal in this case.
Appellate jurisdiction and perfecting an appeal: Because a valid notice of appeal is the jurisdictional trigger for the Supreme Court’s review, a notice filed by a nonlawyer on behalf of another is “ineffective to invoke this Court’s appellate jurisdiction.” As a result, the Supreme Court cannot reach the merits and must dismiss.

The circuit court’s approach—granting a 30-day window to obtain counsel—resembles the curative framework embraced elsewhere. But at the Supreme Court stage, because no lawyer appeared and the notice of appeal itself was filed by a nonlawyer, the majority concludes jurisdiction never attached.

Justice Kern’s special concurrence provides a detailed comparative analysis. It notes that some courts treat a nonlawyer-filed notice of appeal as a non-jurisdictional, curable defect, given the “ministerial” nature of filing. Those courts weigh factors such as the filer’s knowledge of impropriety, diligence in obtaining counsel, and prejudice to the opposing party. The concurrence also distinguishes Stevens as involving an answer, not a notice of appeal, and observes that Rustic Home Builders did not explicitly characterize a nonlawyer-filed notice as a jurisdictional nullity. Nonetheless, because Bruce had already been given time to obtain counsel and could not do so, Justice Kern agrees dismissal is the correct result on these facts.

Impact

The Court’s decision has several significant implications for South Dakota practice:

Guardians and conservators: The ruling clarifies that while guardians may decide to sue or defend for wards, they cannot represent those wards in court unless they are licensed attorneys. This includes the crucial step of perfecting an appeal by filing a notice of appeal. Guardians should assume that any notice of appeal must be filed by a licensed attorney or, if the ward is competent and proceeding pro se, by the ward personally.
Appellate practice: The decision reinforces that a notice of appeal filed by a nonlawyer on another’s behalf is ineffective to invoke appellate jurisdiction in South Dakota. Filing deadlines are strict; late involvement of counsel will not salvage a notice that never invoked jurisdiction under the majority’s approach.
Administrative and disability services litigation: Many disputes involving services for protected persons proceed from administrative tribunals to judicial review. This decision means that, absent a valid attorney-filed notice of appeal, judicial review can be foreclosed. Providers and agencies may see fewer appeals reach merits review where counsel is difficult to obtain promptly.
Access to justice: The concurrence underscores the potential harshness of a strict nullity rule, particularly for indigent or cognitively impaired litigants who rely on guardians for decision-making and who may face difficulties retaining counsel promptly. The concurrence highlights a gap in statutory authority for publicly funded counsel in many civil contexts, noting that appointment of counsel in guardianship matters typically burdens the ward’s estate.
Future directions: Although the majority applies the nullity rule to notices of appeal, the special concurrence invites consideration of a curable-defect approach in an appropriate future case, particularly where a nonlawyer’s involvement is minimal and counsel steps in without delay. This could occur through case law, court rulemaking, or legislative action clarifying the status of a nonlawyer-filed notice of appeal.

Complex Concepts Simplified

Unauthorized practice of law (UPL): Only licensed attorneys may represent another person in court. Acting for someone else in a legal proceeding—drafting, signing, and filing pleadings or notices on their behalf—is practicing law. Nonlawyers may represent only themselves (pro se); they may not represent others.
Guardian’s authority versus attorney’s role: A guardian or conservator may decide whether a protected person will sue or defend, but that decision does not authorize the guardian to appear in court, sign pleadings, or file a notice of appeal as if they were an attorney. The guardian must retain a licensed attorney to act in court.
Notice of appeal and “perfecting” an appeal: The notice of appeal is the document that invokes an appellate court’s jurisdiction. If the notice is defective because it was filed by a nonlawyer on behalf of someone else, the appellate court may lack jurisdiction and must dismiss. Under Danielson, a nonlawyer guardian’s filing is ineffective to invoke jurisdiction.
Nullity rule versus curable defect:
- Nullity rule: Filings by nonlawyers on behalf of others are void. They do not count for jurisdictional purposes, even if filed on time. This is the approach applied by the Danielson majority to notices of appeal.
- Curable-defect approach: Some courts treat a nonlawyer-filed notice of appeal as a procedural defect that can be cured if counsel promptly appears, especially where the filing is ministerial, the filer acted in good faith, and no prejudice results. The Danielson special concurrence describes this approach but the Court did not adopt it here.
Power of attorney versus attorney at law: A power of attorney authorizes someone to make decisions for another; it does not license the holder to practice law. The circuit court emphasized this distinction, and the Supreme Court’s analysis aligns with it.
Subject-matter versus appellate jurisdiction: The circuit court dismissed after Bruce failed to secure counsel. At the Supreme Court level, the focus was on appellate jurisdiction—whether a valid notice of appeal invoked the Court’s power to hear the case. Because the notice was filed by a nonlawyer on behalf of another, it was ineffective to invoke jurisdiction.

Conclusion

Danielson v. LifeScape clarifies and reinforces a bright-line rule in South Dakota: a guardian’s authority to make litigation decisions does not include the authority to practice law, and a notice of appeal filed by a nonlawyer on behalf of a protected person is ineffective to invoke the Supreme Court’s jurisdiction. The appeal was therefore dismissed without reaching the merits of the administrative termination of services.

While the Court’s holding provides clear guidance to litigants and courts, the special concurrence flags a competing curable-defect framework used in other jurisdictions, especially where the nonlawyer’s role is limited to the ministerial act of filing and counsel is promptly obtained. The concurrence’s access-to-justice concerns are particularly salient in cases involving indigent and cognitively impaired litigants, for whom obtaining immediate counsel can be difficult and costly.

The key takeaways are:

Guardians and conservators cannot represent protected persons in court unless licensed to practice law; this prohibition extends to filing notices of appeal.
A notice of appeal filed by a nonlawyer on behalf of another is a nullity under current South Dakota law and does not confer appellate jurisdiction.
Courts may afford time to obtain counsel in the trial court, but at the appellate level a defective notice cannot invoke jurisdiction; timely, attorney-filed notices are essential.
Policy debates over curability and access to justice remain open for future development via case law, rulemaking, or legislation.

Danielson thus marks an important, clarifying precedent at the intersection of guardianship law, unauthorized practice, and appellate procedure, signaling the need for prompt attorney involvement whenever a protected person seeks judicial review.