A Look at the Guardianship Process for Incapacitated People

A Look at the Guardianship Process for Incapacitated People

Guardianships are important aspects of the legal system. The main purpose of this legal process is to allow a person or entity to handle important decisions for another. Usually, the subject of a guardianship proceeding is a person who can no longer care for his or herself. Thus, the guardian plays a critical role in making sure that the person receives the appropriate care. Without guardians, many disabled and incapacitated people would be left on their own.

The Necessity Behind Guardianships

When someone becomes incapacitated, or suffers from a disability, it is usually permanent. Generally, the conditions are so severe that the person's ability to function is greatly affected. This means they are unable to communicate their needs, maintain employment and live alone. Due to this, these people need a great deal of special care to meet the challenges in life.

The court may appoint a guardian to facilitate the care of a ward. In most cases, the guardian acts in a supportive role. The law prefers that the ward maintain as much independence as possible. Thus, wards have a lot of freedom in choosing how to carry out their lives. However, guardians do maintain some degree of authority over the situation.

What a Guardian Can Do

Guardians are only granted enough power to assist the ward with challenging activities. For example, guardians may have the authority to handle financial and medical decisions. They may also oversee educational opportunities for the ward. Finally, most guardians are responsible for communicating with the court regarding the ward's condition and progress.

Utah's Procedure for Guardianships

Every state sets its own requirements for a guardianship. In Utah, the process is outlined in Chapter 5 of the Utah Uniform Probate Code. Yet, prior to initiating the guardianship procedure, it must be determined that the ward is incapacitated. Utah requires three elements to meet this showing. The potential ward's functional limitations must affect:

  • The ability to receive and process information.
  • The ability to make decisions or communicate one's wishes.
  • The ability to provide basic life necessities for oneself.

To appoint a guardian, a petition must first be filed. To file this petition, it may be necessary to serve certain interested parties. This may include family members of the person, anyone with power of attorney and the Adult Protective Services department. It is also necessary to serve the person who is the subject of the petition. The service of process allows any of the parties to file an objection to the guardianship.

Next, a lawyer is appointed for the incapacitated person. However, the potential ward can also select a lawyer of his or her choosing. Although a lawyer is required by state law, there are some scenarios where the court will waive the requirement.

Following the appointment of legal counsel, the ward (or respondent) will undergo an examination. This is done by a licensed physician. In some cases, a court visitor will also be assigned to verify whether the respondent is fit to attend court.

Finally, there will be a hearing on the matter. Note, this is not a traditional type of hearing. Instead, it provides the judge with a chance to obtain more information about the case. At some point, the court will also consider what authority the guardian will have.

In the end, if all goes well, the court will generate a letter of guardianship. This is the official confirmation that a guardian has been appointed. This document will detail the type of powers that the guardian holds. It may be modified if the circumstances warrant so.

Help With Guardianships

The above is just a brief explanation of the guardianship process. The actual procedure is a lot more detailed. It is a great help to work with an experienced lawyer throughout this process.

If you need assistance with a guardianship matter, contact Spencer and Jensen PLLC. The firm can also help with custody or end of life law issues.

Tags: gaurdianship, incapacitated people

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