Many adults – due to advanced age, a catastrophic accident or illness, or a psychological disorder – no longer have the ability to care for themselves. If this describes someone you love, speak at once with an elder law attorney about additional legal protection for your loved one.
Sometimes a child will also need some type of special legal protection. If a parent cannot provide shelter for his or her child, has no regular income, suffers from an illness, severe injury, or addiction, or has been incarcerated, a Utah court will consider a petition for guardianship.
And when an adult can no longer manage his or her own healthcare and finances, what are the family’s legal options? What is a guardianship, what is a conservatorship, and what is the difference? How will an attorney help you care for a beloved adult or child family member?
If you’ll keep reading, those questions will be answered in this brief discussion of guardianships and conservatorships. You’ll learn what legal help is available to families in Utah, and you’ll also learn when and how to establish a guardianship or a conservatorship for a family member.
How Are Guardianships and Conservatorships Defined?
A guardianship places someone (called by the law a “protected person” or “ward”) under legal supervision by a guardian or a custodian. In Utah, when a guardian is appointed by the court, that person has legal power to take actions to ensure the physical well-being of the protected person.
A conservator, on the other hand, is a person or institution appointed by the court to manage a protected person’s financial affairs and to ensure that person’s financial well-being when that person is a minor or is an adult who is no longer capable of making sound financial decisions.
Usually, a court-appointed guardian will be the protected person’s close friend or family member. If an adult has created a Utah Advance Directive and has named an agent in that document, that agent will typically be named as the guardian in a guardianship proceeding.
What Are the Obligations of Guardians and Conservators?
Full guardianship may impair an adult’s legal rights, so a limited guardianship for an adult is the preference of Utah’s courts. When full guardianship is established, the guardian has the right to determine the protected person’s place of residence and to make other key personal decisions.
While a guardian oversees a protected person’s daily care and personal needs, a conservator handles all of the protected person’s property, assets, and financial affairs. A conservator is obligated to use the assets wisely to provide for the protected person’s care and maintenance.
Although one individual may serve both as someone’s guardian and conservator, different parties are usually named. While a family member is usually named a guardian, the conservator may be an attorney or a financial advisor, especially if the protected person’s finances are complicated.
What Happens in a Guardianship Proceeding?
In guardianship proceedings, a Utah court first appoints a guardian ad litem to investigate the guardianship petition and to make a recommendation to the court. The court may also order a physical and/or mental health exam of the individual who purportedly needs legal protection.
To establish an adult guardianship, a Utah court must have clear and convincing evidence that the person who may need legal protection:
- lacks the capacity to make or convey informed decisions
- needs a guardian appointed to provide necessary personal supervision and care
What is Required to Set Up a Conservatorship?
A conservatorship proceeding for an adult is comparable. The court names a guardian ad litem to investigate a conservatorship petition. To establish the conservatorship, the court must determine that the individual in question cannot competently manage his or her financial affairs due to:
- a mental or physical illness, deficiency, or disability
- the abuse of alcohol and/or drugs
- confinement in a nursing, mental health, or other facility or institution
- any other reason sufficient to establish a conservatorship for an adult
A Utah court also must determine that the adult in question has assets that may be mismanaged without a conservator’s oversight. In some cases, a conservatorship is established temporarily until the protected person regains the capacity to again manage his or her financial affairs.
When is a Guardianship or Conservatorship Established for a Child?
Guardianships also protect the rights of minor children. When a parent cannot act on behalf of his or her child, a Utah court may designate a guardian. The guardian is typically a relative of the minor child.
Unlike an adoption proceeding, when a court names a guardian for a child, the parents may retain responsibility for the child’s financial support, and they do not necessarily lose their legal parental rights. The law in Utah also allows a court to designate a conservator for a minor if:
- the minor owns assets and/or property that needs management or protection that cannot be provided otherwise
- the minor’s assets and/or property may be at risk
- a conservator is needed to manage funds for the child’s financial support and education
How Will the Right Attorney Help Your Family?
In Utah, anyone over age 18 who is concerned about the well-being of a child or adult may file a petition to establish a guardianship or a conservatorship for that child or adult. The petition must be filed in the county where the person who may need protection resides.
Before you take any legal steps to establish a guardianship or a conservatorship, discuss your concerns about your loved one with a Utah estate planning attorney who routinely works on behalf of Utah families to set up guardianships, conservatorships, and special needs trusts.
Your attorney will answer your questions, address your concerns, and explain your legal alternatives for protecting a child or an adult. If a conservatorship or guardianship is appropriate, your attorney will file the petition on your behalf and guide you through the legal process.
Should You Set Up a Special Needs Trust?
A Utah elder law attorney or estate planning lawyer can also help you establish a special needs trust for a child or an elderly family member. A special needs trust is important if you have a disabled or incapable loved one you wish to provide for when you’re gone.
Our loved ones deserve the best that we can provide for them. To learn more, to file a guardianship or conservatorship petition, or to set up a special needs trust, contact a Utah estate planning lawyer promptly.