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Adult Guardianship in Utah

The following are brief answers to some common questions regarding adult guardianships in Utah.  These answers are not intended to be a complete statement of Utah law regarding guardianships.  If you are involved or could potentially be involved in a Utah guardianship proceeding, please contact us for advice regarding your specific circumstances.

What is a guardianship?
Guardianship is a legal relationship which authorizes one person (the guardian) to make decisions on behalf of another person (the ward) who is incapacitated.

What does it mean for a person to be "incapacitated"?
For purposes of Utah law governing guardianships, a person is considered to be incapacitated if the person lacks sufficient understanding or capacity to make or communicate responsible decisions by reason of mental illness, mental deficiency, physical illness or disability, chronic drug use, chronic intoxication, or other cause.

What is the process for court appointment of a guardian?
A petition for appointment of a guardian may be filed with the court by the incapacitated person or by any person interested in the incapacitated person's welfare.  The court may require an examination by a physician appointed by the court.  The court may also appoint a "visitor" to interview both the allegedly incapacitated person and the person seeking appointment as guardian, to visit the place where the incapacitated person is currently living, and to visit the place where it is proposed the incapacitated person will reside.  The visitor will submit a written report to the court.  The person who is alleged to be incapacitated is entitled to be represented by an attorney and to a trial by jury.  At trial, the allegedly incapacitated person is entitled to present evidence and to cross-examine any witnesses that may testify.

Is a trial always necessary?
No, if both the proposed guardian and ward agree that guardianship is appropriate, the court may enter an order of guardianship without all of the formal proceedings involved in a trial.  However, these protections are available to the allegedly incapacitated person if that person disputes the necessity of a guardianship.

What decisions can the guardian make for the ward?
This depends on whether the court has ordered a limited guardianship or a full guardianship.  Utah law creates a preference for limited guardianships, which provide the guardian only with the authority to make specific decisions authorized by the court.  If the court determines that full guardianship is appropriate, the guardian is authorized to make nearly all decisions for the ward.

Who will be appointed as a guardian?
Utah law gives priority to a person who has been nominated by the incapacitated person to serve as a guardian.  If no person has been nominated, the courts give priority in the following order: spouse of the incapacitated person; adult child of the incapacitated person; parent of the incapacitated person; any relative of the incapacitated person with whom he has resided for six months prior to the filing of the petition; a person nominated by the person who is caring for him or paying benefits for him; or a specialized care professional.

Can a guardianship be avoided with appropriate estate planning?
Yes, the need for a guardianship can often be avoided through forward-thinking estate planning methods.  Using estate planning tools that may a durable power of attorney, advance health care directive, and a revocable living trust, a person may designate another person who will have the authority to make decisions or manage the persons affairs in case of incapacity.  But these estate planning steps must be taken before the person becomes incapacitated.  Creating an estate plan that will protect you in the event of incompetence or incapacity will typically be much less expensive than the cost of obtaining a guardianship.  It also avoids the necessity of presenting sensitive personal information in a public courtroom setting.

Contact us to learn more about adult guardianships in Utah or for assistance with other estate planning needs.

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