American society is an aging society and often dementia, Alzheimer’s Disease, accident related injuries, mental illness, or physical impairment, prevent an individual from being able to make their own health care or financial decisions. If the appropriate estate planning is not in place a guardianship, or conservatorship, as they are sometimes call, may be necessary. If you have a loved one who is an adult (or will become an adult soon), but that loved one is unable to fully care for or make decisions for themselves, then you might need to seek court appointment as a guardian for this loved one and/or conservator for his or her estate. There are multiple reasons why an adult child (or children) may seek guardianship of an elderly parent who has become incapacitated (in whole or part). Similarly a parent may need to obtain guardianship of their severely disabled child once that child reaches adulthood.

There are two general types of guardianship in Utah: (1) a full guardianship, where all decision-making authority is removed from the protected person and transferred to the guardian to exercise; and (2) a limited guardianship, where some rights are transferred to the guardian while some are retained by the protected person. Under a full guardianship, the rights of the protected person are very similar to those of a minor child with the guardian having the right the exercise those rights in much the same way a parent would for their minor child. Utah law strongly prefers creating a limited guardianship over a full guardianship if possible. In a limited guardianship, the guardian is only given authority to make decisions for the protect person in specific, limited areas in which that person lacks sufficient capacity or understanding to make decisions.

The process for being appointed as a guardian or conservator for a disabled or cognitively impaired person is very similar to the probate process. A person with statutory priority files a petition and a hearing is held before the court. The protected person is required to have his or her own attorney to objectively represent the best interests of the protected person, or to subjectively represent the person if they have the ability to communicate and understand the process and circumstances of why the guardianship is being sought. Also, the court will typically not proceed with appointing a guardianship and/or conservatorship unless the need for the appointment is recommended by a physician who has personally examined the protected person.

The process for obtaining a guardianship and/or conservatorship can be confusing and stressful. For more than 17 years I have helped many families navigate these difficult waters and I strive to make the process as easy as possible. This includes helping families work with suitable counsel for the protected person, helping a guardian identify proper care providers or long-term care facilities. We also will help you with the accounting and asset management responsibilities that are incumbent upon a conservator of a protected person’s estate.