Provo Wills, Trust & Estate Administration Attorneys
When your parent or loved one becomes incapacitated and in unable to manage their personal affairs, an adult guardianship may be in order.
Where to File a Guardianship:
The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.
Purpose of a Guardianship:
The purpose of an adult guardianship is to help, or to completely take over the personal affairs of an incapacitated adult. Incapacitation can occur for the following reasons:
(1). Later life onset of physical or mental illness.
(2). Mental or physical disability from birth. A congenital disability.
(3). Early life physical or mental disability caused by a personal injury or accident.
Legal Incapacity Defined:
The Utah Probate Code at Utah Code Ann. 75-1-201 (22) (2017) defines incapacity as:
“Incapacitated” or “incapacity” is measured by functional limitations and means a judicial determination after proof by clear and convincing evidence that an adult’s ability to do the following is impaired to the extent that the individual lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care:
(a) receive and evaluate information;
(b) make and communicate decisions; or
(c) provide for necessities such as food, shelter, clothing, health care, or safety.
Petition for Guardianship:
When a parent, or any interested person petitions a Utah District Court for a guardianship over the proposed protected person, the petitioner must allege the legal and factual grounds that will prove the need for an adult guardianship. A hearing will be set and parties will show up to see if the petition for adult guardianship is contested or uncontested.
Often, the petition will submit a doctor’s note indicating the disability for the Judge’s review.
Court Investigator/Guardian/Attorney Appointment for the Proposed Protected Person:
In order to protect the adult from abuse, the court will often appoint an attorney to represent the allegedly incapacitated person. This attorney or court investigator will show up in court and also independently visit with their client to ensure no one is taking advantage of the person. The attorney fees will be paid by the allegedly incapacitated person.
The alleged incapacitated person has a right to an attorney to represent them in court, to cross examine any witness and to present evidence. The alleged incapacitated person has a right to present medical testimony and has a right to be present at the hearing.
EMERGENCY GUARDIAN:
The Utah Probate Code allows for the appointment of an emergency guardian for a specific transaction that cannot wait for a full court hearing on the merits.
If an incapacitated person has no guardian and an emergency exists or if an appointed guardian is not effectively performing the guardian’s duties, and the court further finds that the welfare of the incapacitated person requires immediate action, it may, without notice, appoint an emergency guardian for the person for a specified period not to exceed 30 days pending notice and hearing.
Upon request by an interested person after the appointment of an emergency guardian, the court shall hold a hearing within 14 days.
TEMPORARY GUARDIANSHIPS:
When an emergency situation does not exist but a temporary guardian is needed to coordinate the affairs of the allegedly incapacitated person until a full hearing can be heard, the court may appoint a temporary guardian during the pendency of the guardianship litigation. An emergency guardian may be continued as the temporary guardian. A temporary guardian may not remove the allegedly incapacitated person out of the State and the temporary guardian may be removed at any time by the court.
PRIORITY OF WHO BECOMES THE GUARDIAN:
The Probate Code sets out a rough priority of who is and can be appointed guardian of the allegedly incapacitated person. Here is the order of appointment.
(1). The latest testamentary nomination by the incapacitated person. Notwithstanding this written nomination by the incapacitated person, the court can disqualify this nominated person for good cause shown. Good cause shown can be physical/mental inability to manage the incapacitated person’s affairs. Drug addiction, alcoholism, or criminality are a few that can disqualify even a previously nominated person.
(2). The incapacitated spouse.
(3). The adult children of the incapacitated person.
(4). A parent of the incapacitated person.
(5). A current caregiver.
(6). Any competent person or suitable institution.
POWERS AND DUTIES OF A GUARDIAN:
Utah law prefers limited guardianships over full guardianships unless there is no alternative. Limited guardianships are preferred because Utah law prefers not to take away a person’s liberty of movement and choices unless absolutely needed. Taking away a person’s liberty invokes constitutional protection against government intrusions into personal affairs.
The powers of a guardianship are tailored in the Letters of Guardianship and have default control over the person’s place of living, either in the State or out of State. The guardian can and shall provide the care, comfort and maintenance of the person. The guardian may consent to routine medical care but may not unreasonably restrict the family or friends of the incapacitated person from visitation.
Any extraordinary request can be first reviewed and sanctioned by the court to insulate the guardian in their care choices. A guardian must make annual reports on the incapacitated person to the court, or as requested by the court. If the incapacitated person dies, or is about to die, the guardian must notify the court.
TERMINATION OF THE GUARDIANSHIP:
An interested person may petition the court to remove the current guardian for failure to perform the duties of a guardian, or for simple substitution purposes. Additionally, an interested person, or upon the initiation of the court, the entire guardianship may be terminated for lack of a reason for it.
When terminating a guardian or the entire guardianship, the court will take preventative measures to have the incapacitated person’s voice heard and be represented and present at any court hearing.
LEGAL BURDEN OF PROOF. WHO HAS TO PROVE WHAT:
The legal burden of proof is on the person who wants the adult guardianship. That proponent of the guardianship is called the petititioner. The Petitioner has to prove that each and every ground for a guardianship exists by clear and convincing evidence. Clear and convincing evidence is a middle upper standard of legal proof, only below beyond a reasonable doubt.
CONTESTED GUARDIANSHIP:
You will need a trial lawyer on your side if a guardianship becomes contested. Your average probate attorney who drafts will not have the courtroom advocacy skills to guide you as the petitioner through the court, or defend off a guardianship if you are the alleged incapacitated person.
The Provo probate attorneys at Howard Lewis & Petersen, PC have the skills to plan your estate, administer your estate after death and provide guardianships or conservatorships. The trial lawyers at Howard Lewis & Petersen, PC can handle any litigated or contested guardianship.
