8833 South Redwood Road
Suite C
West Jordan, UT 84088

Call For Free Consultation

(801) 676-5506


Call Us

Mental Capacity for Wills and Trusts

The law operates on the assumption that adult individuals have capacity, meaning that they are capable of making decisions concerning their financial and personal needs and so are best situated to make decisions on their own behalf. Mental incapacity definition is important, as a Utah
probate lawyer can explain.

Mental Capacity for Wills and Trusts

In Utah, in the 1990’s, the state revisited its Guardianship statutes; including reviewing the definition of mental incapacity, instituting procedural safeguards for the alleged incapacitated person, and imposing greater judicial scrutiny of the acts of Guardians. The result has been the creation of a new form of Guardianship, and a greater judicial sensitivity to the need to balance the protection of individuals with diminished capacity against their right to autonomy and self-determination.   The appointment of a Guardian is a very serious matter.  In a very significant way, the appointment deprives a person of the freedom to make his own decisions regarding healthcare and financial matters.  However, it may be very necessary when, due to diminished capacity, a person would suffer harm without assistance.

In determining whether to appoint a Guardian for a person’s personal needs or financial management, a Court will examine a person’s functional ability and any harm that may result from a person’s functional limitations.  In situations where a Guardian is needed, the Court will shape the appointment to a person’s needs and limit the Guardian’s powers so the Guardianship will be as limited as possible.   An alleged incapacitated person has the right to oppose the appointment of a Guardian.  The Court will appoint an attorney to represent the alleged incapacitated person in Court.  The name of the attorney is provided in the Order to Show Cause or in a separate court order.

Article 81 of the Mental Hygiene Law (“MHL”) contains dozens of separate provisions concerning a Guardianship case.  Section 81.01 of the MHL is entitled “Legislative Findings and purpose”.  This section is important since it sets forth the purpose of the law as being focused on the needs of each individual person who is subjected to a Guardianship petition.  The statute emphasizes that the needs of the person must be examined in each instance and that restrictions on the person’s rights will be imposed only as needed.  The law seeks to maintain the independence of the incapacitated person as much as possible.

Wills and Probate

If you die without a will, State law provides a default will. Typically your spouse and children will take the property. If there is no spouse and no children, your parents may take the property, followed by any siblings, grandparents, and descendents of the grandparents. If no relations can be found, the property will eventually belong to the state.  While this is orderly, it may be not what you wish or be in the best interest of those you love. A Utah wills and probate lawyer can advise you on your options.

When a person dies without estate planning, or at least doing a Last Will and Testament he is deemed to have died intestate.  Instead of a probate proceeding where a Will is filed and processed for validity, the Surrogate’s Court proceeding is entitled Administration.  In the case of a Will a testator can choose the person who will act as Executor.  In an Administration Proceeding, the Utah Statutes determine who can be appointed as the estate Administrator.  Estates, Powers and Trusts Law Section 1001 provides the order of priority of a decedent’s heirs at law for appointment.  When there is no Will naming an Executor, a person whom the decedent did not want as an estate beneficiary or estate representative may very well be appointed as Administrator and inherit the estate assets.  The appointment of an Administrator may require that the person appointed obtain a bond.  A bond is essentially an insurance policy issued by a surety company which insures that the Administrator does not mishandle the estate funds.  The surety companies usually require that the person receiving the bond has a good credit rating.  If the closest relative entitled to the appointment as Administrator does not have a good rating, they may not be able to be appointed as the fiduciary since they cannot qualify for the bond.

Sometimes it is very difficult to determine a decedent’s distributees (“heirs at law”) after death, particularly where the closest relatives are cousins.  A wills and probate lawyer in Utah can guide you through this process. It may be necessary for the estate to be administered by a governmental official called a Public Administrator.  Also, the distributees may need to prove their inheritance rights through a Kinship Hearing.  A hearing on kinship requires the presentation of proof in the form of documents such as birth and death records and census reports that can demonstrate that the persons’ claiming as the heirs are the only possible recipients.  This type of proof may be difficult to obtain especially if the records needed are decades old and possibly located in other states or counties.

Free Consultation with a Utah Estate Planning Attorney

When you need help to plan an estate, liquidate an estate, administer an estate or for probate, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506