The following questions and answers relate to adult guardianships in Utah. The answers are not intended to be complete statements of Utah law on guardianships. If you or a loved one could potentially be involved in a guardianship proceeding in Utah, contact us now for more information and advice as to your specific circumstances.

What is a guardianship in Utah?
A court-ordered guardianship creates a legal relationship which authorizes one person (the guardian) to make decisions and act on behalf of another person (the ward) who is incapacitated.

What does is required to show that a proposed ward is “incapacitated”?
A person is considered to be incapacitated, under Utah law governing guardianships, if the person lacks sufficient understanding or capacity to make or communicate responsible decisions by reason of mental deficiency, mental illness, physical illness or disability, chronic intoxication, chronic drug use, or other reasons.

What processes are involved in appointing a guardian?
The initial petition for appointment of a guardian can be filed by the incapacitated person, but is usually filed by another person interested in the incapacitated person’s welfare. In determining whether the proposed ward is in fact incapacitated, the court may require an examination by a physician appointed by the court. The court may also appoint a “visitor” who is responsible for interviewing both the allegedly incapacitated person and the person who is seeking to be appointed as. The visitor can also be required to visit the place where the incapacitated person is currently living as well as the place where it is proposed that the incapacitated person will reside once a guardian is appointed. The visitor is required to submit a written report to the court outlining the observations made, but the visitor does not act as an advocate on behalf of the proposed ward. Instead, Utah law requires that the proposed ward be represented by an attorney who is responsible for advocating on behalf of the proposed ward. If there is disagreement as to whether the person qualifies as incapacitated, the proposed ward is entitled to a jury trial. The burden of proof at trial is on the petitioner, and the allegedly incapacitated person is entitled to cross-examine witnesses presented by the petitioner, to present evidence and witnesses on his or her own behalf, and to personally testify.

Is trial always required in a Utah guardianship proceeding?
No, in most cases a guardianship can be obtained without the need for a trial. Many cases involve a parent or sibling who is seeking to be appointed as guardianship over an adult child or sibling. Often, the proposed ward is willing to have their mother, father, or sibling appointed as guardian. In some cases, the issue of incapacity may not be contested but there may be a dispute over who should be appointed. In other cases, there may be only one person seeking appointment as guardian but the proposed ward may oppose appointment on grounds that he or she has the ability to manage his or her own affairs and does need a guardian. In the majority of cases, the court can establish guardianship without the formalities of a trial. However, the important protections afforded by a trial for situations where the allegedly incapacitated person disputes the necessity of a guardianship or where appointment as guardian is sought by multiple people.

What decisions is a Utah guardian able to make on behalf of the ward?
The extent of a guardian’s authority will depend on the specific language of the court’s order establishing the guardian. Utah law provides a preference for limited guardianships when possible. In such cases, the court’s order will spell out what the guardian can do. In many cases the court will order a full guardianship, which authorizes the guardian to make nearly all decisions for the ward. But even when full guardianship is granted, the guardian is required to make decisions with the preferences, desires, and wishes of the incapacitated person in mind.

Who will be appointed as a guardian in Utah?
Most often, the guardian will be a relative of the incapacitated person. Utah law governing guardianships gives priority to a person who is nominated by the incapacitated person to serve as a guardian. These nominations are sometimes made as part of an advance health care directive or power of attorney, or as a stand-alone nomination. If no one has been nominated as guardian by the incapacitated person, then priority the Utah Code gives preference to the following individuals in the order listed: a spouse of the incapacitated person; an adult child of the incapacitated person; a parent of the incapacitated person; any relative of the incapacitated person (if the incapacitated person has lived with such relative for the six months prior to the filing of the petition); a person nominated by the person who is caring for the incapacitated person or paying benefits for him or her; or a specialized care professional.

With appropriate estate planning, can a guardianship be avoided?
Guardianships are sometimes established for individuals who have struggled their entire lives without ever being able to successfully manage their own affairs. But guardianships are also often required for people who have lived most of their lives as fully competent and capable individuals, but later find themselves unable to continue to managing their own affairs as a result of injury, accident, or the effects of advancing age. Through forward-thinking estate planning methods, the need for a guardianship for such a person can often be avoided. Using estate planning tools that may include an advance health care directive, durable power of attorney, and  revocable living trust, many of the situations that might otherwise require the appointment of a guardian can be dealt with by a person who has been previously designated as having authority to make decisions or manage another person’s affairs in case of incapacity. But these estate planning steps must be taken before the person becomes incapacitated. A person lying unconscious in a hospital bed does not have the capacity to execute a power of attorney, trust, advance health care directive, or other legal documents. Creating an estate plan that will protect you in the event of incompetence or incapacity can often be less expensive that the cost of obtaining a guardianship, and can help avoid the necessity of presenting sensitive personal information in a public courtroom.

Finding a Guardianship Attorney in Utah

We are pleased to offer estate planning and guardianship-related legal services to clients in Salt Lake, Davis, and Weber counties, and throughout Utah. If you have a loved one who would benefit by the appointment of a guardian, contact us today to see how we can help you.