Steve Novak: Tooele Utah Family Attorney

In Utah, the guardianship process usually starts when someone becomes concerned that another adult is making decisions that are not in keeping with his values or is failing to make decisions at all. Or, it may begin when someone is worried that a trustee or an agent under a durable power of attorney is not making appropriate decisions for the person with diminished capacity. The person who thinks “something needs to be done” may be a family member, friend, neighbor, physician, adult protective services worker, hospital discharge planner, neighbor, advocate for adults with disabilities, the police, psychologist, attorney, or public health nurse. The subject of guardianship is raised as a way for decision making to be placed in the hands of someone other than the person with apparently diminished decision-making capacity.

Before you file a petition for guardianship it is always a good thing to speak to an experienced Tooele Utah family lawyer. A petition for guardianship may be appropriate when all the following basic criteria are met:

1. The criteria for guardianship as defined in the Utah guardianship law apply.

2. The person in question has diminished capacity to make decisions.

3. Alternatives to guardianship have been seriously considered, evaluated, and rejected as to their suitability to the person and the situation. They are not appropriate to the situation, are not available, or have been used to abuse the person with diminished capacity.

4. Objective evidence such as physician statements, functional evaluations, or cognitive evaluations is available that the person and the people around her cannot provide the support needed for adequate food, clothing, shelter, medical care, and the handling of financial resources.

5. There is risk of personal or financial injury or damage that only a guardianship can prevent.

6. Court authority is needed to stop abuse, protect the victim, and seek restitution, or it is needed to file some type of legal action, such as: settle a lawsuit, represent the person in an existing divorce proceeding, file a civil lawsuit for personal injury or fraud, interference with an expected inheritance, false imprisonment or negligence, intentional or reckless infliction of emotional distress or institutional abuse, professional malpractice, or civil rights violations due to disability or age.

Family Law Due Process

The Fourteenth Amendment to the United States Constitution requires that due-process protections be afforded to anyone who is threatened with the loss of liberty or property due to state action. People in guardianship retain ownership of their assets but they lose control of them. And while they may not be imprisoned, they lose the control over where they will live and the freedom to choose the services that will be provided to them.

Because the removal of civil rights in guardianship is so serious and can end up being permanent, there need to be thoughtful procedures that are fundamentally fair, strictly defined and adhered to, and are taken step by step. The procedural protection steps in guardianship are:

1. The person is given written notice of the pending proceeding in a way that maximizes the chance that she will understand it.

2. There is sufficient time for the person to respond and prepare a defense, if desired.

3. The person is furnished with the evidence that supports the guardianship petition.

4. The person is informed of the right to attend the hearing.

5. An attorney is appointed, if the person wants one, or if the court thinks one is appropriate and necessary.

6. The person is informed of basic rights, such as the right to object to the guardianship proceeding or the proposed guardian up to and including a trial by jury. In jurisdictions where jury trials are used, it is critical that an attorney be appointed to represent the person with diminished capacity.

Other protections for the person with diminished capacity alleged to need a guardian include meaningful access to multidisciplinary assessment resources, trained investigators or their equivalent in order to ensure full and fair delivery of the due process rights advisement, development of the evidence, the right to have a neutral decision-maker, a chance to confront and cross examine adverse witnesses, specific guidelines for tailoring the guardianship to the person, effective training and monitoring of guardians, a written record of the proceedings, and the right to be informed of all the foregoing rights

Stages of Guardianship Process

The complex process of guardianship unfolds in a predictable fashion: pre-petition, petition, court hearing, ongoing guardianship, and termination of the guardianship.

Pre-Petition Family Law

In the beginning stages of the guardianship process, families and professionals determine who will serve as the petitioner for the guardianship and who the proposed guardian will be. The need for an attorney for the petitioner, if one is not already involved, is also considered.

Guardianship Law In Utah

When a petition for guardianship is filed with the court, someone serves as the petitioner and someone is listed as the proposed guardian. Frequently, it is the same person. The person with diminished capacity may have nominated a person to serve as guardian prior to losing capacity. Most state laws would give preference to appointing that person as guardian unless the court finds that the appointment is not in the best interests of the person with diminished capacity or that the nomination was done when the person lacked capacity or was unduly influenced. The next preferred persons in order are spouse, adult child, parent, and sibling. If one of the people in a preferred category wishes to nominate someone else, it is taken into account by the judge who appoints the guardian. Judges have discretion as to whom they will appoint to serve as guardian, although usually family members are thought to be most appropriate. The judge is guided by what appears to be in the best interests of the person with diminished capacity. Family members may decide among themselves who would be best able to serve as guardian. Hopefully they take into account the wishes and desires of the person with diminished capacity.

If family members are scattered around the country, they may select the person who lives closest to the person with diminished capacity. They may serve as co-guardians of both person and estate or one may serve as guardian of person and another as the guardian of estate. Families may also decide to have a private professional guardian step in, if there is too much conflict in the family, there is too much work to be done, or they fear the person with diminished capacity will blame them for unpopular decisions. If no one is willing and able to serve as guardian, the task may fall to a professional guardian such as a non-profit organization, a private professional guardian, or the Public Guardian. Sometimes family members are willing but not able to serve due to their own health problems, because they live too far away, or the person with diminished capacity does not want them to be involved.

An experienced Tooele, Utah family lawyer can be particularly helpful, even necessary, if problems arise during the guardianship proceedings. Attorneys who petition the court for the appointment of a guardian come from many circumstances. The attorney may be a long-time attorney for the person with diminished capacity, who previously prepared a nomination for guardian for that person. By filing a petition for guardianship, the long-time attorney carries out her client’s wishes.

If you are planning to appoint a guardian for your elderly relative,

1. Always consider guardianship as the last resort.

2. Always seek the “minimalist” option.

3. Establish the basis before filing the case.

4. Be conservative and compassionate.

5. Strive for simplicity.

6. Instruct guardians on responsibilities.

7. Consider that the needs and rights of the person in guardianship come first if there is conflict in a guardianship.

8. Ensure compliance with all reporting requirements.

9. Independently monitor the ward’s (person in guardianship’s) progress.

10. When in doubt, seek the assistance of an experienced Utah family law attorney.

Petition and Pre-Appointment Court Activities

The first formal step in the guardianship process is the filing of the petition for guardianship with the court. It is usually filed in the county where the person with diminished capacity lives or has real property. he more complete the petition is, the better the judge will be able to understand the situation and the more carefully the guardian’s powers can hopefully be tailored to meet the needs of the individual.

The typical petition requires the following information:

• The name, date of birth, address, and phone number of the person thought to be in need of a guardianship

• The name, address, and phone number of the person, also known as the petitioner, who is asking the court to appoint a guardian

• The name, address, and phone number of the person who is seeking to be appointed the guardian

• The relationship between the proposed guardian and the person with diminished capacity

• A statement of the reasons why a guardianship is needed. For instance, what behavior indicates that the person with diminished capacity cannot make her decisions in her best interests.

• The nomination of guardian, if the person with diminished capacity has executed a nomination

• The powers the proposed guardian is requesting, such as guardianship of person, guardianship of estate, exclusive medical decision-making powers, providing an allowance or control of a bank account for the person who is thought to need a guardianship, changing living arrangements, selling real property or personal property

• The estimated size and nature of the estate, if a guardianship of estate is being requested

• The names of all persons who are related within the second degree to the person who is thought to need a guardian. This would include a spouse, children, parents, grandparents, grandchildren, and siblings.

• The names and addresses of any representative of the person with diminished capacity, i.e., attorney, agent under power of attorney, trustee, representative payee

At the time the petition is filed with the court, a date will be set for a hearing. The hearing is the time when the judge formally listens to comments from the person who is thought to need a guardianship and his counsel, to the petitioner and to the proposed guardian. Other people concerned about the case may also request to speak at the hearing. Hearings are generally public matters and anyone can attend

Temporary or Emergency Guardianship

There are two general situations where guardianship powers are needed immediately: the person with diminished capacity is in imminent physical danger or assets are actively being dissipated or wasted. For example:

• Someone is trying to move the person with diminished capacity to an undisclosed location.

• The person needs an emergency medical procedure and there is concern that the person is incapable of giving informed consent.

• Court permission is needed to move the person, who is wandering, to a secure facility.

• Authorization is needed for emergency plumbing, electrical, or other urgent repairs to a house.

• Assets are being drained from the person’s bank account and the accounts need to be frozen until the general guardianship hearing date.

• The person’s house has been put up for sale and escrow is closing.
Courts are generally cautious about granting emergency or temporary guardianships, because the notice to all the parties is significantly shorter, there may not be an attorney for the person with diminished capacity, and there is not enough time for a court investigation. For the same reasons, fewer powers may be granted to a temporary guardian than in a general guardianship.

Generally, the only two people who are required to attend the hearing are the attorney for the proposed guardianship and the proposed guardian. Anyone who wants to oppose the petition for guardianship or the proposed guardian should also plan to be present to explain his or her opposition. Since people with alleged diminished capacity have a right to attend their guardianship hearing, it is the responsibility of the petitioner and/or the proposed guardian to make certain that the person gets to the hearing, as long as the physician believes it will not be physically harmful and the person wants to attend. This is a basic part of due process. The opportunity to speak directly to the judge is invaluable. Judges can and do ask questions and seek the opinions of the person with diminished capacity. If the person makes requests such as not to be moved from the home, to have access to a bank account, or to visit a relative, the judge will take that into account when making orders.

Family Lawyer in Tooele Utah Free Consultation

When you need legal help with a family matter in Tooele Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Custody. Conservatorships. Guardianships. Adoptions. Child Support. Prenups. Postnups. Real Estate. Estate Planning. Asset Protection. And Much More. We want to help you.