For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established by the court in a judicial proceeding for guardianship and/or conservatorship.
Guardians and Protected Persons in Utah
Guardianship is a legal arrangement that places an individual, also known as a “ward” or “protected person”, under the supervision of a guardian, or custodian. In Utah, a guardian primarily has the court-appointed power to provide for the physical well-being of a protected person and a conservator is the court-appointed individual or entity to provide for the financial well-being of the protected person.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence. In Utah, we have a statute (or law) that governs who has priority to serve as guardian or conservator for a protected person. For example, the agent named in the protected person’s Utah Advance Directive will normally have priority to serve. Lacking that nomination, a spouse or adult child may be an appropriate person to serve.
While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual. In fact, in our state, limited guardianships/conservatorships are actually preferred. A full guardianship is granted only in the case where the judge makes a specific finding that no limitations should be placed on the guardian.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
Right to Due Process in Utah
To safeguard the protected person’s right to due process, he or she is entitled to notice of, and ability to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses. If the protected person does not have legal counsel, in Utah, an attorney will be appointed to represent him or her.
Utah Guardian Responsibilities
Guardianship, unless limited by a court order in Utah, relegates the following responsibilities to the appointed guardian:
The guardian may be required to report to the court about his or her activities on an annual basis.
Utah Conservator Responsibilities
Conservatorship typically transfers the following responsibilities to the conservator:
A conservatorship may also be temporarily granted until the protected person regains capacity.
Guardianship of Minors
Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.
Kathie Brown Roberts P.C. has assisted many family members and loved ones navigate the the guardianship and conservatorship process for a decade.