A petition for appointment as guardian must be filed in the Utah probate courts before a guardianship over an adult can be established. A guardianship can be established for an adult who, for reasons relating to age, mental illness, disability, drug use, or other cause, lacks the understanding necessary to make or communicate responsible decisions. For assistance in obtaining or contesting an adult guardianship in Utah, contact us to see how the right attorney can help you.
The following questions and answers provide are intended to provide general information relating to adult guardianships in Utah. However, this information is not intended to be legal advice. If you are considering filing a petition for the appointment of a guardian, you are strongly encouraged to consult with a qualified Utah attorney.
What is a guardianship in Utah?
A formal guardianship is a legal relationship established through the Utah probate court system, which appoints and authorizes one person (the guardian) to make decisions on behalf of and to protect the interests of another person (the ward) who is incapacitated.
What does it mean for a person to be “incapacitated” for purposes of a Utah guardianship?
For a Utah court to determine that an adult is incapacitated for purposes of establishing a guardianship, the court must look at the proposed ward’s s ability to make and communicate responsible decisions. If the court determines that the person lacks the understanding and capacity to make and communicate responsible decisions, then the court may formally find the person to be “incapacitated.” This incapacity may be based on reasons of mental illness, mental deficiency, physical illness or disability, chronic drug use, chronic intoxication, or other cause.
What is the process for a Utah court to appoint a guardian?
Utah law allows the proposed ward or any person interested in that person’s welfare to file a petition for appointment of a guardian. In actual practice, such petitions are typically filed by family members of the proposed ward. Before appointing a guardian, a Utah probate court require that the proposed ward by examined by a physician appointed by the court. In cases where the proposed ward is not able or not willing to appear in court for required hearings, the court will appoint a “visitor” to interview both the proposed ward and the person seeking appointment as guardian. The visitor may also report to the court information regarding the place where the incapacitated person is currently living, as well as the place where it is proposed the incapacitated person will reside. The court will review the visitor’s written report in making its findings as to the guardianship petition. The proposed ward is entitled to be represented by an attorney in court, and may demand a jury trial if the proposed ward objects to the appointment of a guardian. At trial, the burden of proof is on the person seeking the guardianship. But the proposed ward is entitled to cross-examine any witnesses that may testify, and to present his/her own evidence.
Is a trial always necessary to establish a guardianship in Utah?
If both parties (the proposed guardian and ward) agree that a guardianship is appropriate, a trial is not necessary. But even though a formal trial is not necessary, the court is still required to hold a hearing on the matter. Such a hearing is much less complex, less formal, and shorter than a jury trial would be. But in cases where the proposed ward is opposed to the guardianship, a jury trial may be used to determine whether the guardianship should be granted. In limited circumstances, an emergency appointment of a guardian can be made without the ordinary notice and hearing requirements.
What decisions can the guardian make for the ward under Utah law?
When the court appoints a guardian, the court also determines whether the guardianship will be a “full” guardianship or a “limited” guardianship. Utah law provides a preference for limited guardianships. In a limited guardianship, the guardian only has authority to make decisions on the specific matters outlined by the court’s order. If the court orders a “full” guardianship, then the guardian is authorized to make nearly all decisions for the ward. In some cases, the court will appoint a conservator rather than a guardian. A conservator only makes decisions relating to the ward’s property or finances.
Who can be appointed as a guardian in Utah?
Under Utah law, a probate court is required to give priority to a person who has been nominated by the proposed ward to serve as a guardian. If the proposed ward has not nominated a guardian, then the Utah Code gives priority to the following classes of individuals: the spouse of the proposed ward; an adult child of the proposed ward; a parent of the proposed ward; any relative of the proposed ward with whom he has resided for at least six months prior to the filing of the petition; a person nominated by the person who is caring for the proposed ward or paying benefits for him; or a specialized care professional.
Can proper estate planning help avoid the necessity of obtaining a guardianship?
In many cases, the need for a guardianship can be avoided with the use of some fairly basic estate planning tools. Many guardianship petitions are filed by children of an aging parent who is suffering from Alzheimer’s disease, dementia, etc. An adult with advanced Alzheimer’s disease or dementia may not be able to make appropriate or responsible decisions for himself or herself. With a previously-executed living trust and durable power of attorney, a person previously designated can often step in and make and execute necessary decisions. But a living trust or durable power of attorney have to be executed by the person while he or she is still competent to execute such instruments.
Finding a Utah Estate Planning and Guardianship Attorney
Creating an estate plan to protect yourself in the event you become incapacitated can sometimes be cheaper than the cost of obtaining a guardianship. A properly executed and funded living trust can also help avoid the costs and delays associated with a probate action after your death. The peace of mind that comes from knowing that your estate is in order is priceless.
Contact us to arrange for an initial consultation regarding guardianships in Utah or to begin the process of setting up a personalized estate plan.