At Spencer Family Law, we have years of experience dealing with some of the most nuanced family legal matters. Guardianships and conservatorships can be complex and confusing to navigate, whether you have questions about your role as a guardian, the petitioning process to request guardianship or conservatorship, or want to challenge an existing guardianship. Our firm consistently takes on high-conflict and complicated cases that require a unique and creative approach.
Our focus is very much on the health and wellbeing of any children or dependent family members. As a result, you can trust that we are equipped to help you navigate your guardianship matter and do so in a way that helps you ensure the best interests of the protected person.
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Guardianship refers to the legal responsibility of an adult (“guardian”) appointed by the court to make certain decisions concerning the protected person (“ward”), such as those pertaining to healthcare, education, residence, social activities, and financial matters. Note that there is guardianship of a child and guardianship of an adult.
Guardianships can be over a child or over an adult who is mentally unable to manage their affairs by themselves. In guardianships for a child under the age of 18, the guardian is typically an adult other than the child’s parent. They must act in the best interests of the child, and they are responsible for the physical care and custody of the child. The extent and limits of the guardian’s decision-making power depend on the court order, as do the extent of the financial responsibilities of the guardian.
Guardianships for adult children or adults who are not the child of the guardian are a little different because guardianships transfer certain fundamental rights away from the ward to the guardian. There are special provisions to establish a guardianship for a child who is not yet an adult, but who has disabilities that will make them unable to manage their own affairs when the reach 18 years of age.
Conservatorships are often associated with guardianships, as a “conservator” is a court-appointed entity responsible for handling the ward’s estate. The conservator is often decided at the same time as the guardian and may even be the same person. Typically, though, if the estate is less than $10,000, the guardian will handle the estate and there will be no need to appoint a conservator. Conservators are usually needed if the ward receives an inheritance, government benefits, insurance benefits, or damages as a result of a civil lawsuit. A parent may be appointed as a conservator to handle their adult child’s financial assets.
Establishing a Guardianship
Any adult can seek a guardianship over an adult or child in Utah. The process for establishing a guardianship is similar for minor children and adults, but the legal requirements are very different.
Guardianship of a Child
Any adult person interested in a minor child’s welfare may petition for guardianship with the district court in the county where the child resides. The petitioner may request that they take on the role of guardian or appoint another person who is better suited to the child’s best interests. As with all child-related legal matters, the court will make a decision based on the child’s best interests, including their physical, mental, moral, and emotional needs. In order to get a guardianship over a child, it must be proven by clear and convincing evidence that the parents’ rights have been suspended or terminated, or the parents consent to the guardianship.
There are several ways to establish a guardianship of a minor child in Utah, such as:
- Testamentary appointment. The child's parents can nominate a guardian in their will or other written document, and the guardian must submit written acceptance with the probate court and provide notice to interested individuals.
- Appointment by a local school board.
- Appointment of a guardian in a child welfare case proceeding in juvenile court.
- District court appointment. This is the most common court proceeding to obtain guardianship of a minor, but is also the easiest to challenge.
Establishing a Guardianship For an Adult
Establishing a guardianship for an adult, whether or not they are your child, is different than establishing a guardianship for a minor child. Because an adult has a full set of constitutional rights, any order that limits those rights or transfers them to someone else to exercise on their behalf must meet strict constitutional requirements. In order to get a guardianship of an adult, or a child who will soon be an adult, you must establish that they do not have the capacity to manage their own affairs due to a medical or psychiatric condition.
A petition for guardianship must include a written evaluation by a physician or psychologist discussing:
- a specific description of the physical, psychiatric, or psychological diagnosis of the respondent;
- a comprehensive assessment listing any functional impairments of the respondent and an explanation of how and to what extent these functional impairments may prevent them from receiving or evaluating information in making decisions or communicating informed decisions;
- an analysis of the tasks of daily living the respondent is capable of performing independently or with assistance;
- a list of the medications the respondent is receiving, the dosage of the medications, and a description of the effects each medication has on their behavior;
- a prognosis for improvement in the ward’s condition and a recommendation for the most appropriate rehabilitation plan or care plan; and
- other information that the physician or psychologist considers appropriate.
Notice to Interested Parties
Certain people have a right to receive notice of any guardianship proceeding, depending on whether the guardianship is for a minor child or an adult. These people have to be notified of the guardianship after the petition is filed and given an opportunity to object or intervene in the guardianship proceeding.
For a guardianship of a minor child the following people have to be notified:
- The minor, if they are 14 or older
- The person who had the principal care and custody of the minor during the 60 days before the petition was filed
- The living parents of the minor
- Any guardian appointed by the will or other written instrument of the parent of the minor who died last
- The school district in which the petitioner resides, if the child is of school age
Any of the above individuals may object to the guardianship by filing a written objection or orally raising an objection at the hearing. However, oral objections must be followed by written objections within seven days to hold ground.
For a guardianship over an adult, there are certain priorities the court must follow in appointing a guardian, and depending on where you are in the list you may have to prove to the court that you are a better candidate to be a guardian than the others. For example, if you apply for the guardianship over your parent, and your parent’s spouse objects and applies for a competing guardianship, you will have an uphill battle to convince the court to appoint you instead of your parent’s spouse. Similarly, if you are a cousin, you will start at a lower priority than the protected person’s adult child if the adult child gets involved in the case.
Guardianships are complex matters, and the legal process to establish guardianship can be lengthy and confusing. It is best to enlist the help of an experienced guardianship lawyer to efficiently navigate every step of the process. Our attorney at Spencer Family Law can take a look at your situation to plan your guardianship procedure.
Schedule an initial consultation online or at (385) 999-2474 to get started.
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