In Utah, guardianships can be seen as a distinctive way of helping people with diminished capacity who cannot care for themselves or their real property and liquid assets. Unlike other care-giving arrangements, the authority of the court is involved. Courts delegate their powers and authority to guardians, which means that guardians are legally answerable to the court. The delegated powers a guardian receives from the court are accepted and honored by banks, physicians, and even the police. In Utah, only the court can appoint a guardian, supervise the guardian, or remove the guardian. If you are seeking to be appointed as a guardian of your close relative, consult with an experienced Lehi Utah family lawyer.
The subject of guardianship has long been a source of confusion and even conflict among attorneys, health and social services practitioners, judges, families, and the adults with diminished capacities and physical and/or mental impairments who find themselves the subjects of guardianships in the United States. Judges try to make cogent and measured decisions about the need for guardianship or possible alternatives to guardianship in the absence of sound and measured information from petitioners. Judges must also deal with laws that are generalized as well as the lack of adequate court staff to implement judicial safeguards both before and after a guardianship is established.
The person who is the focus of all this attention may be aware that her personal and financial affairs are slipping out of her control and she may be bewildered, distressed, and frightened. On the other hand, many adults with diminished capacity who are coming into guardianship are not aware that it is happening because their disabilities are so severe. Others are grateful that at last, someone is taking charge and will help them. Some fight it with all their financial resources despite clear and convincing evidence that they desperately need the protection that only a guardianship can provide.
An experienced Lehi Utah family lawyer can assist you with the guardianship process. In order to establish a guardianship, information must be formally filed with the court in a document stating that an individual lacks the ability to handle her personal and/or financial affairs and explaining why. This document is called a petition. The petition should include examples of dysfunctional or self-endangering behavior. There may be allegations of physical abuse, financial exploitation, or neglect by others. Usually a report by a physician is filed with the court that provides the person’s medical diagnoses. This report may be called a declaration in some states. The petition also names the person or agency that is requesting appointment as guardian. The attorney who files the petition must, by law, formally notify close blood relatives of the filing of the petition and provide copies of the petition.
After all the required documents and reports are filed, the judge has the opportunity to review them. If the judge decides that the adult is sufficiently impaired and unable to take care of herself, a guardian is appointed. This appointment usually takes place at a scheduled time in a courtroom and is called a hearing. Most judges make every effort to keep sensitive information out of the public arena. However, a court hearing is a public matter and anyone can appear and state their opinions or objections. If a guardian is appointed, he must periodically file certain required documents with the court, such as a general plan, accountings of financial dealings, and reports of the status of the person with disabilities. Court personnel and the judge review these documents for proper format and content. Although guardianships can be terminated for a number of reasons, typically a guardianship continues as long as the adult with disabilities is alive.
Supporting Documents In Family Law
In a perfect world, all petitions for guardianship would contain information related to all the criteria that have been proposed, with the exception of the global standard, of course. Legal criteria and Utah laws are imperative to the establishment of a guardianship. Seek the assistance of an experienced Lehi Utah family lawyer. They provide the bedrock baseline and the threshold for a petition for guardianship. They are, however, only one part of the complex picture of guardianship matters. Commonly accepted and standardized functional and decisional assessment tools would be part of every petition for guardianship. In addition, the petitioner would explain why a less restrictive legal alternative would not be appropriate in the situation. If a power of attorney or a trust already existed, the petitioner would explain why that legal option was no longer sufficient to protect the person with diminished capacity. The petition would contain information about the specific powers that are needed by the guardian and why. The petition would spell out the risks to the person with diminished capacity if the court denied the guardianship petition. This information would enable judges to craft specific orders that more closely match the needs of the person with diminished capacity. There would be information about the person’s living circumstances, his support network, and his ability to cope.
Physician Statements and Medical Diagnoses
Physician statements and medical diagnoses must continue to be a part of the information provided to the court for many reasons. Some observers have noted, however, that due to societal bias towards people with diminished capacity and the elderly there is always the possibility that their abilities and actual functioning will not be realistically assessed. Even without much detail, physician statements filed with the court are still neutral assessments and as such provide objective data for the court. Medical diagnoses can be helpful in determining the types of powers a guardian should be given initially and in forecasting how long a guardianship may be needed. A careful, considered diagnosis provides a baseline at the start of the guardianship and makes the course of the person’s medical condition more clear. As the person’s condition changes (or doesn’t change) over time, it can be measured against the physician’s initial statements and diagnoses. For instance, a diagnosis of delirium or severe depression means that the condition is most likely temporary and will respond to treatment, indicating that it might be possible to terminate the guardianship at some point when the person recovers. People do recover from the most unlikely conditions. Some people with the diagnosis of bipolar disorder finally realize that they must take medication for the rest of their lives, and they do it. Those with substance-abuse problems find the support they need to recover from their addiction. Some people with developmental disabilities bloom under special newly created programs and learn how to handle their own money and take public transportation. Some adults with head injuries stabilize and learn to function in ways that permit a guardianship to be terminated.
Assessments and evaluations for guardianship petitions can be viewed as a “snapshot in time” of a particular person and that person’s circumstances.
On the other hand, if the diagnosis is a dementia due to “small strokes,” Alzheimer’s disease, Parkinson’s disease, or Huntington’s chorea, the person’s medical condition can be expected to worsen, bringing more decline and dependence over time. Different judicial orders may need to be considered at various times, such as an order to grant exclusive medical decision-making powers to the guardian or court permission to sell a home in order to pay for long term care
A careful, thorough medical assessment is, in fact, a thoughtful investigation with several parts. First, the physician obtains a history of the person’s health status through an oral interview with the patient and possibly members of the family. Each of the body’s systems is reviewed for current and past symptoms. The systems include: bones and joints, heart and blood vessels, brain and nerves, digestive system, eyes, ears, nose and mouth, lungs, genital and urinary, and endocrine system. Chronic pain is also evaluated. The physician then reviews current medications, including any over-the-counter (OTCs) drugs. The savvy physician will inquire if the patient is skipping medications or borrowing someone else’s medications because of expense. After the verbal history has been taken, the physician does a physical examination and orders further studies, such as laboratory tests, x-rays, or a neuropsychological examination. A brain scan may be ordered to see if there has been a stroke or other disease activity, such as brain tumors. Brain scans can also detect untreated depression. Once all the laboratory studies are completed, a diagnosis can be made. Typically, a physician statement filed in a guardianship will contain several diagnoses, especially if the person is an elder.
Guardians must make decisions for people who can no longer make decisions for themselves. Some of the most difficult decisions include deciding where the person with diminished capacity will live and whether her home should be sold or her apartment closed. Just as difficult are healthcare decisions such as amputations, end-of-life care and life support, do not-resuscitate orders, and tube feeding. Still other decisions might involve whether to file a lawsuit when there has been egregious abuse by someone prior to the guardianship, or perhaps even working with police and prosecutors when criminal charges are pending against the alleged abuser.
Handling real property and assets can be very troublesome if the situation is complex. For instance, a guardian may be involved in managing rental property with the headaches of maintaining the property and evicting a difficult tenant. It can be frustrating to deal with stock portfolios, marshal public benefits and pensions, sort through piles of mail, and locate “stale” income checks. Some elderly people coming into guardianship have not paid their federal and state income taxes for a number of years. This means that the guardian must reconstruct those past years and file the returns for the years that were ignored. When there are contentious family relationships or even mild conflicts, the guardian must deal with the issues and personalities in the way that is in the best interest of the adult with diminished capacity. Typically, elders in guardianship will want to be in contact with all members of the family regardless of conflicts. In carrying out their duties, all guardians must consult the person in guardianship when decisions are to be made. If the person’s cognitive impairments do not permit her to participate, then the guardian must act in concert with the values of the person if those values are known. If the values are not known, then the guardian acts in the best interests of the person.
People and organizations serving as guardians include family, friends, lawyers, and other professionals who are familiar with the person who may need a guardianship. People and organizations who do not know the person with diminished capacity also may serve as guardians—including private professional guardians, profit and non-profit organizations, and Public Guardians who are governmental agencies.
Family members who are guardians of an elder struggle with the same challenges as any family caregiver. For those who are guardians of a spouse with increasing health problems and inability to perform selfcare, it means the loss of a helpmate and companion in addition to the physical work required in care giving. For adult children who serve as guardians, it means making decisions for a parent who formerly made decisions for them, as well as sorrow over the parent’s increasing impairments. For family members who are guardians for younger adults who are developmentally disabled or who have suffered a catastrophic accident or illness, it means also struggling with changes in their own life patterns, especially as they care for the impaired person over the years. And for those guardians who have family members with mental illness or substance abuse it means suffering their own sorrows even if they are not in close contact with the family member who is ill or addicted.
In addition to their own personal challenges and the concern about the person with diminished capacity and his finances, the relative who is guardian must deal with the pressure of fulfilling the legal mandate as a surrogate decision-maker. Usually the person has never served as a guardian before. He or she has little or no preparation for this very unfamiliar role. Family members will not be accustomed to the “culture of guardianship,” including its language, procedures, process, and the players. For all those reasons, family members should Seek the assistance of an experienced Lehi Utah family lawyer.
Lehi Utah Family Attorney Free Consultation
When you need legal help with divorce in Lehi Utah, or any type of family law, including real estate disputes, or elder law, guardianships, child custody, child support, estate planning and more, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506