What is a Guardianship?
A Guardianship is a court-approved arrangement in which an individual is appointed to manage the financial and personal affairs of another person who is unable to make their own decisions, either because they are a minor, or because they are medically, mentally, or otherwise incapacitated. Guardianship is a last resort, and courts prefer the use of a Durable Power of Attorney, or other less restrictive alternatives to Guardianship where possible. You’ll need to consider a lot of things before picking your estate planning attorney, It’s not something you do haphazardly.
What is the difference between a Guardian of the Person and a Guardian of the Estate?
While the Guardian of the Person and the Guardian of the Estate may, but are not required to, be the same person, the roles are different. The Guardian of the Person is responsible for all decisions relating to the healthcare and personal matters of an incapacitated person. The Guardian of the Estate, on the other hand, is responsible for all decisions relating to the management of an incapacitated individual’s financial affairs, such as paying their bills.
What type of person needs a Guardian?
The purpose of a guardianship is to protect the rights, interests, and health of those who are unable to manage their own personal and/or financial affairs, including children under the age of 18. But this doesn’t mean that guardianship is always appropriate. Just because your grandmother sometimes forgets where she left her keys doesn’t mean she needs a Guardian. Guardianship is a last resort, and other, less restrictive methods should always be considered first.
Why can’t someone with Dementia sign a Power of Attorney instead of getting a Guardian?
In order for an individual to sign over their Power of Attorney to another individual, they must be legally competent. If that individual suffers from Dimentia, or another illness affecting their mental capacity, they may not be legally competent to sign a Power of Attorney, and a Guardianship will be the only legal remedy.
What if someone needs a Guardian but doesn’t want one?
If the courts appoint a guardian, but the person in need does not want a guardian, they have the legal right to object, to hire an independent attorney of their choice, and to obtain an independent medical examination to prove their mental competence. In the case of an objection, a hearing will take place to determine whether a guardian is really necessary.
Can I become a Guardian?
If you meet the requirements established by Utah State Statute, you are eligible to be appointed as a guardian. Any interested person can ask the Court to establish a Guardianship for another person who they think is incapacitated. T
What is a Guardian ad Litem and what do they do?
A Guardian ad Litem is appointed when a request is made for a guardianship. The Guardian ad Litem investigates the request—they speak with the alledged incapacitated person (AIP) as well as the person who filed the request, obtain a medical report on the AIP, and file their findings with the court within 45 days. The Guardian ad Litem’s findings accompany a recommendation stating (1) whether the person is incapacitated and needs a Guardian, and (2) if they do need a Guardian, who should be the Guardian.
Is a Professional Guardianship service required?
No. Although there are many good Professional Guardianship services available, any eligible person may make a request for a guardian to be appointed, or request to be appointed as a guardian. However, guardianship can often be a full-time job, and in some cases, too much for family members to handle. Professional guardianship services provide expertise and can be of great benefit to an incapacitated person, and their family members.
How long will it take to get a Guardian?
The initial Guardianship process usually takes about 60 days.
How much will it cost to start a Guardianship?
Each case is different, and because the guardianship process is so involved, there is no set fee. Although establishing a guardianship does incur fees, the ultimate result will be the preservation of the incapcitated person’s personal rights and finances.
