Guardianship is a complex instance of court involvement in which the court grants an individual the ability to make decisions for someone else that may or may not be directly related to them. These types of issues are very nuanced and require great consideration from all parties involved. The laws for determining guardianship and other related legal elements do vary by state, which is why you can benefit from working with a lawyer to determine the best possible resolution for the case. In this post, we discuss how guardianship works in Utah, as well as the different iterations and considerations when it comes to assuming guardianship over minors or adults.
What is guardianship?
A guardianship or conservatorship allows someone to make decisions for someone else. Guardianship is similar to a parent/child relationship, but it does not hold the guardian legally responsible for the child’s actions. This is appropriate in situations where a parent is not capable of making decisions for their child or if an adult is incapable of making decisions.
Conservatorship is significantly different than guardianship, as a conservator may only make financial decisions for that person — not personal decisions such as where they will live. Our family law firm can help you to understand if guardianship is appropriate for you or a loved one depending on the circumstances of your situation.
Guardianship can only be determined by a judge. However, a judge will consider factors such as a medical diagnosis for one’s physical or mental health, as well as the person’s ability to provide for themselves, make a living, and complete daily tasks. If guardianship is being considered for an adult, the court will appoint them an attorney to ensure that their interests are protected. If it is for a child, a lawyer may be appointed if it’s in their best interest. Guardianships for minors end when they turn 18. It also ends if either party dies.
Guardianship in adult cases
Determining guardianship for an adult is a different process than for a child. It must show that the adult is incapacitated, meaning:
- They are not able to receive or evaluate information.
- They cannot make or communicate decisions.
- They cannot provide for their necessities, such as food, clothing, shelter, or healthcare-related needs.
The petitioner must provide clear and convincing evidence of incapacity before a hearing. Even if the person for whom guardianship has been filed does not object, the judge will need proof concerning their inability to care for themselves.
An exception to the usual terms of guardianship takes place when a parent seeks to become the guardian of their adult child. In most cases, permission is granted. It does not require a pre-appointment test, while other forms of guardianship will require it.
Any person served with a petition for guardianship has the right to object. A written objection must be received within a week of petitioning or else the case will not move forward in court. If a written objection is given, there will be attempts to mediate before moving forward with guardianship. It is up to the judge’s determination if guardianship is necessary.
What are the terms of guardianship in the state of Utah?
A guardian must accept their role in court. A guardian must also file forms to enter guardianship. This also applies to the end of guardianship. If a petitioner is seeking full guardianship, they must prove that no alternative exists. In cases where full authority is not necessary, a petitioner will have limited decision-making power. A letter will be given confirming the appointment of the guardian. It should be provided to third parties such as healthcare providers, school officials, and other people or organizations involved in the well-being of the individual.
There are many different types of guardianship, including:
In most cases, a guardian will not have total control over a protected person’s decisions and lifestyle. A limited guardian may make decisions regarding:
- Health or other professional and personal care
- Custody and residence
- Comfort and maintenance
- Training and education
- Clothing, furniture, vehicles, and other personal property
Full authority guardianship
Full authority in guardianship is determined by the judge and gives the guardian the right to make decisions as if they were the person’s parent. A full guardian is made responsible for reporting their adult dependent’s financial statements, location, and rights to the estate. Full authority does not mean that a protected person should stop working or doing fulfilling activities. Their guardian should be making decisions in their best interest but allow them the freedom to personal expression in friendships, romantic relationships, religion, appearance, education, and more.
In many cases where guardianship for an adult is necessary, it is with concern to the adult’s wellbeing. It is imperative that the appointed guardian properly cares for and reports on the person under their authority. The guardian must file a report on the protected person each year and notify the court of any changes.
At Ascent Law, we have the years of expertise needed to assist you in navigating your guardianship case successfully. Whether you’re seeking to become a guardian or a person who could become protected under guardianship, we are here to ensure that your interests are legally protected. Contact us today to book your free intro call at (801) 432-8682.