A legal guardianship is a departure from the norm and is only granted in certain circumstances. For example, adults are only given guardians if they are determined to be incapacitated.
In other words, an adult must be determined to be incapacitated in order for a guardian to be appointed over them. Incapacity is determined by a judge, measured by the respondent’s (the adult in question) ability to:
receive and evaluate information; or
make and communicate decisions; or
provide for necessities (i.e. food, clothing, shelter, safety, etc.)
If a judge determines that the respondent is unable meet the essential requirements for financial protection, physical health, safety, or self-care, then the respondent will be declared incapacitated, and a guardian will be appointed.
Petition, Notice, and Objection
The appointment of a guardian begins with the filing of a petition. Any adult may file the petition and request that s/he or someone else be appointed as guardian. The petition must be filed in the court where the respondent resides or is present.
The petitioner must serve the petition and notice of hearing on:
the respondent's spouse, parents, and adult children;
the respondent's closest adult relative if respondent's spouse, parents, and adult children cannot be found;
the respondent's guardian, conservator, caregiver and custodian;
the person nominated as guardian by the respondent or by the respondent's parent, spouse, or caregiver;
the respondent's healthcare decision making agent;
the respondent's agent under a power of attorney;
Adult Protective Services if APS has received a referral concerning the welfare of the respondent, or of the guardian or proposed guardian; and
any other interested person.
Proof of service must be filed with the court. Any person served with notice of a guardianship petition can object, either by filing a written objection before the guardianship hearing, or orally at the hearing. However, an oral objection must be followed with a written objection within 7 days.
Lawyer for Respondent
Utah law requires that any respondent be represented by a lawyer, and that the respondent’s lawyer represent the respondent in the traditional sense: as an advocate. There are limited exceptions to this requirement.
The respondent may choose their own lawyer, but, in the event that they don’t the court will do so.
Once the petition is filed, the court will set a date for a hearing. The hearing isn’t a trial with testimonies from witnesses, though the judge may ask questions. The judge will consider:
whether the petitioner has the necessary claims and proof;
whether proper notice of the petition and hearing has been given;
whether the respondent is present or has been excused from attending the hearing;
whether there is a need to appoint a court visitor;
whether there is a need to appoint a lawyer to represent the respondent;
whether the necessary documents have been filed;
whether the proposed guardian is willing to serve;
whether the proposed guardian is required to take the guardianship test and file the declaration of completion of testing; and
whether there are any objections.
Unless an objection is raised, the judge will appoint the guardian at the hearing. However, if someone does object, the case will either be referred to mediation, or will be set for trial. The petitioner will then have to prove the claims they made in their petition.
Evidence of Incapacity
The petitioner must prove that the respondent is incapacitated by clear and convincing evidence. Again, that means that the petitioner must have enough evidence to leave no serious doubt that the respondent’s ability to receive and evaluate information, make and communicate decisions, or provide for their own necessities is impaired. They must be able to prove that the respondent is not able to meet the essential requirements of providing for their safety, self-care, physical health, or financial protection.
Evidence for Need of Authority
The petitioner must also give evidence of what authority the guardian should be given. There are two types of guardianships: limited or full. To read an in-depth post about these types of guardianship, follow this link to our blog post on the subject. https://www.skvlegal.com/post/types-of-guardianship
In short, full guardianship is given only when the court finds that the protected person is unable to care for themselves at all, rather like a child. Thus, the guardian is given the same responsibility as a parent would have for their own minor child. If the petitioner is seeking plenary or full authority, the petitioner must prove that no alternative exists and that nothing less than a full guardianship is adequate.
Limited guardianships are favored by Utah courts. They give the guardian some authority over five main areas: medical/ healthcare, custody and residence, education, personal effects, and personal care. The amount of authority the guardian is given in each area is decided by the respondent’s capacity.
Pre-Appointment Test, Order and Letter of Guardianship
Before the petitioner can be appointed guardian, they must take a test about their responsibilities and authorities. They must also file a Certificate of Completion with the court.
If the petitioner passes the test, and the court is satisfied that the respondent is incapacitated and the appointment necessary, the court will appoint the petitioner as guardian. Again, the guardian’s authority will be limited unless it was found that nothing less than a full guardianship is adequate. The order will include the parameters of the guardian’s authority. The court’s letter shows the guardian’s authority to make decisions for the protected person, and the guardian will need to provide a copy of it for interest persons (i.e. healthcare providers).
If you have a loved one who would benefit from a guardianship, let us help you through the procedure. Contact us today.