ADULT GUARDIANSHIP AND CONSERVATORSHIP
If you have a loved one who is an adult (or is becoming an adult soon), but that loved one is unable to fully care for or make decisions for themselves, then you might need to seek Court appointment as a guardian for this loved one and/or conservator for his or her estate. Although there are multiple reasons an adult guardianship may become necessary, the most common scenarios involve an adult child (or children) seeking guardianship of an elderly parent who has become incapacitated (in whole or in part), or a parent seeking guardianship of their severely disabled child once that child reaches adulthood.
Types of Guardianships
There are two general types of guardianship: (1) a full guardianship, where all decision-making authority is removed from the protected person and transferred to the guardian to exercise; and (2) a limited guardianship, where some rights are transferred to the guardian while some are retained by the protected person. Under a full guardianship, the rights of the protected person are very similar to those of a minor child with the guardian having the right to exercise those rights in much the same way a parent would for their minor child. Utah law strongly prefers creating a limited guardianship over a full guardianship if at all possible (see Utah Code § 75-5-304). In a limited guardianship, the guardian is only given authority to make decisions for the protect person in specific, limited areas in which that person lacks sufficient capacity or understanding to make decisions.
While a guardianship is primarily concerned with decisions related to a protected person’s personal well-being (such as where she or he lives, healthcare, nutrition, education, personal care, etc.), a conservatorship is exclusively concerned with appointing someone to manage a protected persons personal assets, estate, and finances. A conservatorship might not be necessary if the protected person has limited assets. If a conservator is not appointed, then the guardian will generally be empowered to make financial decisions on behalf of the protected person (if the protected person is deemed incapable of doing so for themselves). The Court can appoint different people to act as guardian and conservator, or it can vest those powers in the same person or people.
Alternatives to Guardianships and Conservatorships
If your loved one planned ahead and created a full estate plan before her or his incapacity, then there might not be a need for the appointment of either a guardian or a conservator. If your loved one created a validly executed power of attorney (also referred to as a “financial power of attorney”), then his or her financial decisions would generally be governed as detailed in that document (see Utah Code § 75-9-101 et seq.). Similarly, if your loved one executed a medical power of attorney (also referred to as a “living will” or “advance health care directive”), then that document will generally authorize specific persons to make medical decisions on behalf of the loved one when he or she is incapacitated (see Utah Code § 75-2a-101 et seq.). Finally, your loved one may have executed a document stating her or his preference of who should serve as guardian if one becomes necessary (the standard/statutory Utah Advance Health Care Directive has a section dedicated to this, see Utah Code § 75-2a-117). If so, then that person would have priority to be appointed as guardian in the event a Court ordered guardianship becomes necessary.
What to Expect When Seeking Guardianship
If you are petitioning for guardianship or conservatorship of a loved one, the Court will require you to prove the specific incapacities your loved one has. This is generally done by submitting a current letter from a medical doctor who examined the loved one and which provides specific statements as to why and for what reasons a guardianship is necessary. If you are seeking guardianship over a person who will be turning eighteen (18) soon and was in the public-school system, then you can also obtain a psychological evaluation or summary of that evaluation from their school file.
An uncontested guardianship can take between two (2) and three (3) months to get ordered by the Court as measured from the date the petition is filed. With that in mind, it is best to file for the guardianship no later than three months from the time you need the guardianship to go in effect. So, if your disabled child turns 18 in April, it is best to file for the guardianship in January of the same year. If necessary, it is possible to appoint a guardian on an emergency basis, but as with most things in life, it is best to plan ahead when at all possible. Guardianships can be amended by further order of the Court.
You should also be aware that in most cases, the loved one who would be subject to the proposed guardianship is under most circumstances entitled to have their own attorney completely separate from the attorney representing the person seeking the guardianship (see Utah Code § 75-5-303(5)(c)). It should also be noted that if the Court determines that the petition for guardianship is without merit, the person petitioning the Court for the guardianship will be required to pay all attorney fees and court costs (see Utah Code § 75-5-303(2)(c)).
After being appointed guardian, you will be required to file with the Court an initial inventory of the protected person’s estate and yearly reports on the protected person every year thereafter (the annual report is waived if you are the parent of the protected person). You should also be aware that you owe a fiduciary duty to the protect person and are required to meet that person’s needs for care, comfort, and to budget and invest the protected person’s estate to meet her or his needs over their expected life span (for more information and additional resources see here).
Call the firm for a consultation about establishing a guardianship
With our comprehensive family law practice, the dedicated attorneys of Intermountain Legal have helped families throughout Utah confront the challenges of caring for a disabled loved one or orphaned child. Call our office today at 801-990-4200 or contact us online to schedule a 30-minute attorney consultation for $50 to discuss your family law matter.
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