The Process to Become a Guardianship of an Incapacitated Person

by Norris Law Group on February 24, 2014

holding_grandma__s_handsA guardian can be appointed by the court to make decisions for an incapacitated person’s well-being. Under Utah law, an incapacitated person is someone who has extreme difficulty receiving and comprehending information, making and communicating decisions, or providing basic life necessities to the point that he or she cannot take care of himself or herself. Whether a person is incapacitated is determined by the court.  

A guardian is appointed for the protection of the incapacitated person. As an adult, that person is entitled to make decisions whether or not anyone else agrees with them. A guardianship should be used only if no other option will benefit the adult. Essentially, a guardian takes away the decision-making rights of the adult. The adult should be able to maintain as much independence as possible, but the fundamental right to make a decision is removed.

Since the appointment of a guardian and declaration of incapacity are both determined by the court, there is an entire process to go through. The process is the same to appoint a conservator. This is not a comprehensive list, but more generalized. The following are the basics that will need to be completed to have a guardian appointed.

1.   Petition to Appoint a Guardian

The petitioner (person trying to get a guardian appointed) may request that either he or she be appointed or someone else entirely. This is done by filing a petition with the court. The petition has to be filed in the county where the respondent (adult needing a guardian) lives.

2.   Serve the Petition and Notice of Hearing

The petitioner has to give a copy of the petition and a notice of hearing to a number of people. These people include the respondent’s family, the people that take care of the respondent: guardian, conservator, caregiver, healthcare agent, power of attorney agent, custodian, any other person nominated to be a guardian, and any other interested parties. Any of these people may object to the petition. To do so, they can either write an objection before the hearing or appear at the hearing and object verbally.

3.   Prove Incapacity

To be incapacitated, an individual must have the inability to receive or comprehend information, make and communicate decisions, or provide for basic necessities. The petitioner has to show that it is highly probable or reasonably likely that the respondent is incapacitated. Any evidence of incapacity should be included with the petition, such a physician’s evaluation or witness statements.

4.   Show a Need for Authority

The petitioner has to show that a guardian is needed to care and supervise the respondent. This may be limited to certain areas, which the court can limit the guardian’s authority to. If the petitioner is trying to get full authority, then s/he has to shoe that there is no alternative and that nothing short of a full guardianship is adequate.

5.   The Hearing

A hearing is not a trial, but the judge will most likely ask questions. During the hearing, the incapacity of the respondent will be discussed. The respondent must be at the hearing, unless excused by the court. The court may even require the respondent to be examined by a physician. The judge will make sure that all the necessary paperwork has been completed. To make sure that the respondent is protected, the judge will decide if a lawyer for the respondent or a court visitor need to be appointed. A court visitor is a third party that investigates and observes the respondent’s situation for the court. The judge will determine whether the proposed guardian is willing and able to serve. If there are no objections, the guardian can be appointed at the hearing. The court would give and order and letter of guardianship, which shows the guardian’s authority to make decisions on behalf of the respondent. Depending on the guardian’s relation to the respondent, the guardian might have to take a pre-appointment test before officially being appointed. If there are objections, then the case will either go to mediation or trial.

Attorney Graham Norris and his associates at the Norris Law Group serve the residents of Utah County and throughout Utah in the area of divorce. Contact them today at 801-932-1238 or online for a free consultation. In the next installment, Coach Kim discusses how encouragement can make a big difference in your marriage.

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