Guardianships in Utah

As a Utah guardianship attorney can explain, the law is the statute that provides the procedure for the appointment of a Guardian to handle a person’s financial affairs or personal needs.

Along with guidelines for the Court procedure, Articles set forth the factors a Court will consider in deciding whether to appoint a Guardian and the powers that can be given to a Guardian to assist the incapacitated person.  The statute also has provisions covering Guardianship procedure.

The Utah Guardianship Law was revised in 1993.  The revisions to the law provided that the Court could appoint a Guardian for property management and a Guardian for personal needs.  Prior to the revision of the law, the proceedings were identified as involving the appointment of a conservator or a committee.

Another important aspect of the change in the law is that the Court’s focus is now on the alleged incapacitated person’s ability to function.  Also, the new law allows the Court to craft the relief it grants such as the powers of the Guardian to accommodate the incapacitated person’s actual needs.  There is now a recognition that a standard cookie cutter type of approach to each case is not in the best interest of the person being subjected to Guardianship control. Guardianship attorneys are familiar with the procedures under the current law.  Guardianship lawyers recognize that a Court will try to find the least restrictive form of control over the incapacitated person.  During the Court proceedings the Court will receive written evidence and witness testimony that will help the Court determine the extent to which an alleged incapacitated person needs assistance handling his affairs.

Guardianship proceedings under Article 81 can be litigious, with friends or relatives contesting the need for a Guardian or who should be appointed as a Guardian or the powers the Guardian is to receive.  The alleged incapacitated person himself or herself has the right to, and many times does, oppose these proceedings.  If the alleged incapacitated person does not want a Guardian, the Court will appoint an attorney to represent him in the proceedings.

Sometimes, a Guardianship may be needed when a person who is incapacitated is victimized or manipulated by others.  In emergency situations a Court can appoint a Temporary Guardian and can immediately restrain or freeze an incapacitated person’s bank accounts or other assets to preserve them until the Court can fully review the matter.

The Court Evaluator In Utah Guardianship Cases

When a petition is filed with the Guardianship Court to commence a Guardianship proceeding, the Court will sign an Order to Show Cause. The form of this Order is set forth in Utah Mental Hygiene Law (MHL) Section 81.07. Among the many items of information that are contained in the Order such as the time and place of the Guardianship Hearing, the Court will also typically appoint and name a Court Evaluator. As stated in MHL Section 81.07 part of the language in the Order advises the Alleged Incapacitated Person (“AIP”) that the “Court has appointed a court evaluator to explain this proceeding to you and investigate the claims made in the application.” A Utah guardianship lawyer can further discuss the role of a Court Evaluator.

MHL Section 81.09 provides the details regarding the appointment of a Court Evaluator. The role of the Evaluator is sometimes misunderstood by people in Utah and elsewhere in the State of Utah. The Evaluator does not represent any party in the manner an attorney would although the Court Evaluator is very often an attorney. The Evaluator is a Court appointee whose task is to investigate and review the different aspects and details regarding the Guardianship application and then make a written report along with recommendations to the Court. MHL 81.09(c) sets forth nine (9) areas or items that are the duties that the Evaluator must fulfill. Among other things the Evaluator will meet with the AIP as well as all other necessary persons in the case and attend all of the Court proceedings.

The role of the Court Evaluator is very important because he actually serves as the eyes and ears of the Court regarding a thorough review of the details in the case. While the Guardianship Judge is not bound by the recommendations of the Evaluator, most Courts give great consideration to the Court Evaluator’s suggestions. This is so because the Evaluator has typically taken a close look at the circumstances of the case. Sometimes the Evaluator may report that the AIP is not incapacitated and does not need a Guardian. In other situations, the Evaluator may recommend that someone other than the petitioner be appointed as Personal Needs or Property Management Guardian.

MHL 81.09 also provides that the Court may direct the Court Evaluator be paid a fee for their services. Typically, this fee is paid from the AIP’s funds. However, when the Court does not appoint a Guardian, the Judge may direct that the fee be paid by the petitioner.

Another important function of the Evaluator is to determine whether the AIP wants to have attorney representation. MHL Section 81.09 makes reference to MHL Section 81.10 which provides additional guidance regarding the appointment of legal counsel for the AIP. Under this section the Court must appoint an attorney to represent the AIP if the AIP requests such representation or if the AIP opposes the appointment of a Guardian or other type of relief.

Free Initial Consultation with a Guardianship Lawyer

When you need a guardianship lawyer, call Ascent Law for your free consultation (801) 676-5506. We want to help you.