Information about Guardianship
What is a guardian?
Guardianship is surrogate decision making for a person who is over the age of 18 and is unable to make decisions due to some level of incapacity. When a person reaches the age of 18 they receive all of the adult legal rights . If they are unable to understand these rights and exercise them due to incapacity, a judge can appoint a guardian to protect that individual and make legal decisions for them.
Types of Guardianship
Utah Statute allows for two different types of guardianship. As you seek guardianship for a family member you will seek one of these two types of guardianship. The Petitioner(s) is required to seek the least restrictive type of guardianship based on the needs of the protected person.
PLenary or full guardianship
This is the most restrictive form of guardianship. All adult rights are removed from the protected person and transferred to the guardian to exercise. The protected person remains much like a minor child.
Limited Guardianship (most common)
This is the less restrictive form of guardianship. With this type of guardianship the guardian is only able to exercise rights for the protected person in the areas specified by the court. There are 5 major types of limited guardianship. They include medical, financial, education, residential and habilitation including daily support services.
What is conservatorship?
A conservator is someone who manages a protected person's assets and estate. In the state of Utah a person who is incapacitated and has assets over $20,000 might benefit from having a Conservator. If an incapacitated person does not have an estate or assets over $20,000 a financial guardian could be appointed to protect the asset.
Protected Person Representation
Due to new 2018 legislative changes, ALL protected individual must be represented by an attorney. This is their due process right. The protected person's attorney is an independent advocate for the protected person who represents them throughout the guardianship court process. There are two options when looking at obtaining representation for thier child. Hiring an attorney, or going through the Signature Program, which is a needs based program through the Utah Court System.
The Petitioner(s) has a choice. They can hire an attorney to represent them. At GAU we call this full attorney representation meaning that both parties are being represented by an attorney. This choice is easier for the Petitioner, but costs more money. The Petitioner can also choose to represent themselves. This is called Pro Se Representation. When a Petitioner chooses to act Pro Se they act as their own attorney, preparing their own paperwork, filing their own paperwork with the court, setting up their own hearing and representing themselves during the guardianship proceeding. GAU provides Pro Se Training Classes to teach Petitioners how to act Pro Se.
Guardianship is legal decision making in behalf of a protected person. There are two types of surrogate decision making:
- Substituted Judgement: Making decisions based on the protected person's previously determined wants, needs and desires.
- Best Interest: Making decisions based on what is in the best interest of the protected person.
SURROGATE DECISION MAKING
HOW TO GET STARTED
When you decide to seek guardianship the first thing you need to do is gather the medical information that the court will require. The court prefers to see 2 different types of medical information:
A Doctor's Letter: This letter should be written by an MD, DO or PhD. The court will also accept letters from a LCSW and even a Nurse Practitioner. The letter needs to be current within the past 12 months. The letter should provide a statement of diagnosis for the protected person. The letter also needs to provide a statement of need for guardianship. This letter needs to be on the doctor's letterhead and it needs to have an original signature. This letter is MANDATORY.
Psychological Evaluation: If the protected person is in the public school system or was in the public school system then there is a psychological evaluation or summary in their school file. You can request a copy from the school. You can also use evaluations that were completed when the original diagnosis was determined. The court likes to see a psychological evaluation, but if you don't have one then you don't need to pay a lot of money to get one. You can file your case with just a doctor letter.
Frequently Asked Questions (FAQ's):
How long does the guardianship process take?
The process can take up to 2-3 months depending on the court calendar. The court calendar is booked out on average 4-6 weeks in advance.
When should I start the process of seeking guardianship?
We recommend that you start the process 2-3 months before you need the guardianship. For children turning 18 you would start the process 2-3 months prior to their 18th birthday.
Do I need to seek guardianship of my special needs child before he/she turns 18?
No. Your child is a minor child until their 18th birthday. As a parent of a minor child you do not need to seek guardianship of your own child. Also you are seeking guardianship of an incapacitated adult which means that you can not have a guardianship hearing with the court until on or after the 18th birthday.
Can a guardianship be terminated?
Yes, a guardianship can be terminated when the protected person gains or regains competency.
How many guardians can a person have?
A protected person can have up to 3 co-guardians.
Can the guardianship be amended to change a guardian or the type of guardianship?
Yes a guardianship can be amended as needed depending on the needs of the protected person.
What kind of ongoing records do I need to provide to the court?
Guardians are required to file a Yearly Status Report on the Ward. Parent guardians are exempt from this responsibility. The Yearly Status Report is due annually to the court. Conservators must file an inventory within 90 days of being appointed and then a Yearly Accounting. All conservators--even parent conservators must file an annual accounting.