Adult Guardianship in Davis and Weber Counties
Do you have a senior loved one or family member who is losing their ability to care for themselves? Do you worry about the decisions they are making, but are limited in your ability or authority to help? You may want to consider guardianship as a solution.
What is Guardianship?
You have probably heard the word “guardianship” thrown around, but what does that really mean, when is it necessary, and how do you get it put in place? Anyone over the age of 18 is considered an adult and legally entitled to make their own decisions. But what happens when someone is no longer able to make sound decisions or needs assistance in handling their affairs? Perhaps they are uncooperative or combative, or maybe you need to help them, but some institution or other person is refusing to work with you. In such cases, guardianship may be the answer. For a court to appoint a guardian, it must find that the person is incapacitated. Utah law determines incapacity by looking at the person's functional limitations and will find it if the person's ability to receive and evaluate information, make and communicate decisions, or provide for necessities such as food, shelter, clothing, health care, or safety is impaired to the extent that they lack the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care. Guardianships can be limited to meet the specific needs of the incapacitated person or can be full where necessary. A full guardianship gives you all the same authority over the incapacitated person that a parent has for their minor child.
Who can be a guardian?
If you’ve concluded that a guardian is necessary for your loved one, you may be curious about who can assume this responsibility. Any capable individual can act as a guardian, however, a judge will adhere to a priority list as per Utah Code, unless there’s a compelling reason to deviate from it. Here is that priority list:
• A person nominated by the respondent
• The respondent's spouse
• The respondent's adult child
• The respondent's parent
• A person nominated by the respondent's deceased spouse
• A person nominated by the respondent's deceased parent
• Any relative with whom the respondent has resided for more than six months before the petition is filed
• A person nominated by the person who is caring for or paying benefits to the respondent
• A specialized care professional
If more than one person is seeking guardianship of an individual, the judge will decide who has priority, and then who is better suited to the role. If there are no family members or friends who are willing or able to fulfill this role, a professional or public guardian may be appointed. The ideal guardian is someone who cares about the individual, lives reasonably near by to offer assistance, and has the time to fulfill the role.
How is a Guardian Appointed?
Only a judge can appoint a guardian. The person looking to appoint a guardian petitions the court in the county in which the incapacitated individual (the “respondent”) lives. The respondent and their close family members must be served a proper notice of the guardianship petition and hearing. During these proceedings, the respondent must have their own attorney appointed (in most cases) to look after their interests. At the hearing, the court will hear evidence regarding the mental capacity of the respondent, and only if they are deemed incapacitated will a guardian be appointed. The judge will assess whether proper notices have been given, whether all necessary processes have been followed, whether the appropriate parties are present, and whether there are any objections to the guardianship. If everything is in order, the judge will appoint a guardian at the hearing. Once appointed, the court will issue "Letters of Guardianship" that the guardian can use to show third parties that they have the right to information and decision making for the respondent.
What Does a Guardian Do?
A guardian’s role can be multifaceted and will vary on a case by case basis. A guardian may be given full or limited authority depending on the needs of the incapacitated person. After a guardian is appointed, they should notify the respondent’s parents, spouse, and children, their healthcare providers, and any administrators of facilities where they live of their appointment. A guardian should also notify relevant governmental agencies, insurance agents, banks, stockbrokers, credit card companies, and any other relevant persons or entities of their appointment. Where necessary, copies of the Letters of Guardianship should be provided. Depending on the extent of your guardianship (limited or full), you may be making decisions regarding the following:
• Health or professional care
• Counseling, treatment, or service
• Housing, care, and comfort
• Training or education
• Clothing, furniture, vehicles, and personal property
If you have full guardianship, you will have the same responsibility for the protected person as a parent has for their minor children, with the exception that you do not need to use your own money to support them and you should not be consenting to the protected person's marriage or adoption. Unless otherwise ordered by a court, a guardian is not paid, but can be reimbursed for expenses.
What is the Difference Between a Guardian and a Conservator?
The terms guardian and conservator are often used interchangeably and can be confused with each other. However, in Utah they refer to two different roles. An easy way to think about this is that a guardian guards and a conservator conserves. Guardians have the legal authority to make decisions for another person, and ensure that their personal needs are tended to. A conservator manages the money and property of another person and handles investments, financial decisions, bill paying, dealing with creditors and debt, and selling property. While a guardian can handle smaller amounts of money, if larger sums are involved, a conservatorship would be needed. In many cases, one person will be appointed as both guardian and conservator, but if you prefer not to handle finances or want to divide up responsibilities for other reasons, a separate conservator should be appointed. Both guardians and conservators need to be appointed by the court which usually happens in the same process and proceedings.
What are the Alternatives to Guardianship?
Guardianship and conservatorship are typically considered only after all other alternatives have been exhausted. This is due to the fact that these processes can infringe on an individual’s liberty, are expensive, and can be inflexible. However, sometimes they are simply unavoidable.
The most common reason guardianship and conservatorship is required is the lack of proper planning before a person becomes incapacitated. In most cases, the need for guardianship and conservatorship can be circumvented through the use of durable powers of attorney, healthcare directives, and trusts. For example, assets could be placed in a trust where a trusted family member can manage them. A durable power of attorney is often the most important legal document you can have because it can solve almost any other problem. However, once someone is no longer competent, the opportunity for these planning vehicles has passed and guardianship and conservatorship may be unavoidable.
Other alternatives to guardianship and conservatorship include being appointed as the person's representative with the Social Security Administration, the Veterans Administration, the Railroad Retirement Board, or other state and federal benefit sources. It can be confusing to navigate the different ways in which you can act on behalf of your loved ones, and this is where a skilled elder law attorney comes in.
I have an emergency situation, how fast can this get done?
You have suddently discovered a loved one is at risk. Perhaps they are being abused or financially exploited, or maybe they are ill and making poor decisions that put themselves or others at risk. You need to move quickly. An experienced elder law attorney knows the legal processes for getting emergency guardianship and conservatorship and can do this for you in a matter of days as opposed to weeks and months. This can be an extremely trying time, and having the right tools and advocates can make this process much smoother. For family members and friends of someone who cannot care for themselves, guardianship allows them the peace of mind that they can provide the decision making needed to protect their loved one. When the need for sudden guardianship arises, having a skilled elder law attorney by your side can make all the difference.
Can I do a guardianship without an attorney?
When you petition for guardianship, you have a choice to either hire an attorney to represent you or to represent yourself. Representing yourself is called Pro Se Representation. You can do it, but like every big undertaking, it is always good to count the cost before you start. To do this yourself you must prepare your own paperwork (about 8 documents), file them with the court, set up your hearing, find an attorney to represent your loved one, make sure proper notices are given to all the right people, obtain proper medical documentation of incapacity, and conduct the court hearing. For many people this is overwhelming on top of the responsibilities they are already taking may already have for their loved one.
This is where a skilled elder law attorney can help. When you choose The ElderCare Law Firm, you get an experienced Utah attorney that can walk you through the process and make sure you are informed and understand your responsibilities as a guardian. The ElderCare Law Firm specializes in senior issues, and we know the challenges that surround seeking guardianship for an adult loved one. We will also help you plan around other relevant issues such as Medicaid or VA Pension eligibility, family dynamics, and care options. If you think you want help with all these issues, please reach out. We are here to help and serve.