Utah law has provisions for the appointment of guardians. When a Utah court appoints a guardian, then that person (the guardian) has the right and power to take decisions – personal, property and financial on behalf of the ward – the person whose is the subject matter of the guardianship. The Judge will consider the evidence before him and decide if a guardian should be appointed and what the rights of the guardian should be. The judge may impose restrictions on the powers of the guardian. Before you apply for the appointment of a guardian for your relative, speak to an experienced American Fork Utah family lawyer.

The earliest forms of guardianship, however, developed as a way to control the property of a person with mental disabilities, rather than to provide for care or protection.

Guardianship is an ancient legal device with roots stretching back to early Greece and the Roman Empire. Once an archaic “backwater” area of probate law and mental health, adult guardianship has over the past few years been brought to public scrutiny. The concept has evolved and matured with the “graying” of the population, increased numbers of persons with mental disabilities, and the rise of the civil rights movement.

Adult guardianship is a state, rather than a federal, function. All states have a general guardianship code. These laws have undergone significant change in the past two decades, with particular emphasis on procedural protections, the determination of capacity, limited guardianship, and court oversight.

The purpose of legal guardianship is to protect adults who are unable to make reasoned decisions, and, as a result, need help managing their affairs. Adults may be judged to lack capacity to manage if they are unable to provide for their basic necessities such as food, shelter, and clothing, putting them at risk of physical and/or financial harm. Adults, who have been adjudicated by a court of law to lack capacity, generally referred to as “wards,” may also be called “conservatees” “incapacitated persons,” or “protected persons.” The ward is relegated to the legal status of a minor child by being placed under “guardianship” and appointed a legal “guardian” who is authorized to act on his or her behalf.

Always seek the assistance of an experienced American Fork Utah family lawyer if you are seeking the appointment of a guardian for your close relative. Legal guardianship is initiated when a petitioner files a formal request for guardianship with the court, setting in motion a court hearing before a judge. The decision to file a petition may be triggered by a specific event, such as a health emergency, acute mental health problem, financial mismanagement, or the need for nursing home placement. The petitioner, who in many cases becomes the guardian, may be a family member or friend, a private agency, a private professional such as an attorney or accountant, or the public guardian.

Filing the petition sets in motion a court hearing before a judge that includes the petitioner and the respondent—the person who is being evaluated for guardianship— and if requested by the respondent, an attorney.

To get a guardian appointed, you must file an application or petition in the court. Seek the assistance of an experienced American Fork Utah family lawyer. The petition must be supported by evidence. After going through the evidence, the court will decide on whether or not to appoint a guardian. There are two procedures to initiate guardianship – voluntary and involuntary. In voluntary proceedings, the person is still competent but his capacities may be declining and so he chooses to file a petition seeking appointment of a guardian for him. In the case of an involuntary guardianship, the person is not competent and others such as his relatives or the state will file a petition seeking the appointment of a guardian for him.

Courtrooms can be intimidating for many reasons. The language of the law is not familiar, the physical layout of the courtroom may be unfamiliar, and the roles of the people working in the courtroom are mysterious. Judges make life-changing decisions that may not be expected or understood. In general, people do not spend time in courtrooms unless their lives have become complicated in ways they cannot control or resolve by themselves. Emotions can run high. While television programs that feature judges and courtroom proceedings have helped the public understand courts to some extent, there is still uncertainty.

The Family Law Courtroom

The court process can be intimidating if you do not know how it functions. Always use the services of an experienced American Fork Utah family lawyer. Most guardianship hearings are held in courtrooms. In rare circumstances, a judge may go to the place where the person is living. Courtrooms and courthouses are public buildings and must comply with the Americas with Disabilities Act in providing services, policies, practices, and procedures to make services accessible.

If you have never been to a court before, make sure you speak to your American Fork Utah family lawyer and understand how the court looks and functions. The judge sits at the front of the courtroom on a massive elevated desk that is called the bench. The judge wears a black robe, which designates her as the person who conducts the hearing or trial. The robe symbolizes the solemnity and objective detachment of the judicial role. The judge listens to the attorneys and people in each case, and makes certain that people have a chance to speak without being interrupted.

A witness stand or witness box is at one corner of the bench and the court clerk sits at the other corner. The witness box is usually elevated and has a microphone so that the witness can be clearly heard.

The court clerk announces the cases to the courtroom one by one so that the parties in each case know when their case is being considered, and they can come forward. The court clerk keeps track of the court files and any documents the attorneys may want to show the judge in the courtroom. The court clerk will also assist anyone who is part of the proceedings who needs an assistive hearing device. This generally must be arranged in advance.

The court reporter sits in front of the judge, or in some courts, at the other corner of the bench. The role of the court reporter is to record all that is said and done so there will be an accurate and written record of the proceedings, word for word. The reporter uses a coded machine and transcribes the notes into English at a later time. Some courts use tape recordings and some have video screens that allow the judge and possibly the participants to see the spoken words as the court reporter takes them down. This is called “real time” reporting.

There may be a podium in the middle of the courtroom. The attorneys will stand in front of the podium when speaking to the judge. Otherwise, they sit at one of the counsel tables and so do their clients. The question of who sits at which counsel table is determined by local custom or by who gets to the table first from the spectator section of the courtroom. The only people who sit at the counsel table are the attorneys and their clients. On rare occasions, a health or social service practitioner who is involved in a case may sit at the counsel table of the side he is supporting. It is more appropriate, however, to sit in the spectator section of the courtroom and be called as a witness if needed.
The bailiff sits at the entrance of the front of the courtroom, just inside the bar railing. The bailiff calls the court to order when the judge takes the bench, at which time everyone in the courtroom is expected to stand briefly, out of respect for the role of the judge and the seriousness of the proceedings. The bailiff also keeps order in the courtroom. If people are talking or disturbing the proceedings in any way, the bailiff will ask them to be quiet. If they are actually being disruptive, the bailiff may ask them to step out of the courtroom. If they are belligerent or physically threatening, the bailiff may call backup bailiffs, and the person(s) may be escorted out of the courthouse. It is rarely necessary to make an arrest.

A railing called the bar separates the front of the courtroom from the seating provided for the attorneys and their clients who are waiting for their cases to be heard as well as for people who are spectators or who have come in support of friends or family members whose cases are being considered that day.

Family Law Judicial Decisions

The two major issues a judge must decide are if the person is capable of making decisions in keeping with his values and if not, if a guardianship or less restrictive option is appropriate to safeguard the person and his assets. If the judge decides a guardianship is appropriate, the next decision is who should serve as guardian and then, what powers should be given to the guardian. The judge in guardianship matters can be faced with highly conflicted situations in which it is difficult to determine the facts of the situation, the credibility of the parties, and the best interests of the person with diminished capacity. But in the end, it is the judge who must make these decisions. Jury trials are rare in guardianships cases in Utah.

You must provide evidence in support of the petition. Merely claiming that your relative requires a guardian will not suffice and your petition will be thrown out. Always speak to an experienced American Fork Utah family lawyer before you file the guardianship petition. The judge bases decisions on the evidence that is provided before the court hearing, the standard of proof that is required by Utah law, the statements of the parties at the time of hearing, and, ideally, the wishes of the person with diminished capacity. The same set of facts may result in different decisions by different judges, because of the vague definition of the term “clear and convincing,” the quality and quantity of the evidence that is provided by the attorney (s), the credibility of the parties, the skill of the attorneys, and the background of the judge.

Usually the judge will make the decision at the time of the hearing when the parties are present. One of the most common decisions will involve the living situation of the person with diminished capacity, specifically whether the person should be moved to a nursing home. Elders with diminished capacity commonly fight this even when they realize they need help making decisions and handling their affairs. Courts may order that the guardian consider and implement home services if possible, or that a reverse annuity mortgage or less restrictive protected placement be investigated. Judges can always order that there be no change in the living situation until there has been another court hearing to consider further information.

Guardianships are sometimes contested. If you wish to contest a guardianship, an experienced American Fork Utah family lawyer is your best friend. You can challenge a guardianship on many grounds. It may be that the person with diminished capacity does not want the guardianship or is concerned about particular actions the guardian might take. More likely, the issue is who should be the guardian. It is rare to have contesting parties acting only out of self-interest or only out of concern for the person with diminished capacity. Usually, both parties have mixed motives. When there are conflicts as to who should serve as guardian, the judge may ask each side to submit a written guardianship plan that outlines what they would do to assist the person with diminished capacity. This information can be very helpful to a judge, because the plans will reveal the intentions of the parties as well as their thoughtfulness and resourcefulness.

Always seek the assistance of an experienced American Fork Utah family lawyer when you are seeking the appointment of a guardian for your relative. It is important that you understand the process.

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