Guardianship proceedings are commenced by the filing of a petition with the Court. The contents of the petition is set forth in Utah Mental Hygiene Law (MHL) Section 81.08. Among other items, the petition must include information regarding an alleged incapacitated person’s (AIP) functional level and his ability to take care of his activities of daily living. As a Utah contested guardianship lawyer can explain, guardianship petitions need to provide the Court with the basics of the AIP’s circumstances and the prima facie case for the appointment of a Guardian for personal needs and property management. MHL Section 81.02(b) provides that a Court needs to have clear and convincing evidence to determine that a person is incapacitated.
In many cases the need for the appointment of a Guardian is clear and without dispute. For example, a person may suffer from dementia or a serious illness or accident and be totally dependent upon his family or friends for all daily activities such as feeding and personal hygiene. In these cases there may also be no dispute as to whom should be appointed as Guardian such as an AIP’s spouse or other close family member or friend.
However, as a contested guardianship lawyer in Utah, I have represented clients where there are major disputes in the Guardianship case. These controversies have many different aspects. The following is a list of some of the most commonly contested Guardianship areas that I have encountered:
(a) Disputes Regarding Incapacity – sometimes the AIP opposes the
Petition and sets forth a position that he does not need a Guardian. The Court then would need to determine whether the person meets the statutory criteria of being incapacitated.
When a petition is filed with the Court, the Court then signs and issues an Order to Show Cause. This Order is served on various parties including the AIP. MHL 81.07 states that the AIP is entitled to be present at the hearing and to advise the Court if he does not want a Guardian appointed. The Order also must state that the AIP has the right to be represented by a Utah contested guardianship attorney. Typically, when an AIP is opposing the Guardianship appointment, the Court will appoint an attorney to represent the AIP.
(b) Available Alternatives to Guardianship: there are instances where
The AIP is clearly incapacitated and cannot handle his activities of daily living. However, before becoming incapacitated, the AIP may have signed and put into effect a Durable Power of Attorney, a Health Care Proxy or a Living Trust. When there exists alternate and advance directives so that the AIP has already established a means by which his needs can be taken care of, the Court will not appoint a Guardian. Many Guardianship contests involve the validity of these advance directives. If the AIP signed a Power of Attorney or Health Care Proxy at a time when he was already incapacitated, the Guardianship court has the power to revoke or void such papers. These Judicial powers are set forth in MHL Section 81.29.
(c) Disputes Regarding the Person to Be Appointed as Guardian:
Another area of controversy concerns disputes as to the proper person to be appointed as Guardian. In these cases there may be little question regarding the need for the Guardian. However, different family members may be competing for appointment so that they can control the personal needs and property management of the AIP.
It is not unusual for one family member to claim that a competing family member either did not adequately care for the AIP’s health and personal needs or that there was improper involvement with the AIP’s assets. In view of the myriad of complaints that one person may have against the other, the Court may be faced with very bitter tension between the competing potential family members. One standard manner by which Guardianship Courts resolve these arguments is to appoint an independent third party as the Guardian.
In Utah, “distributees” are persons who are designated by law as having the primary right to receive a decedent’s estate in the case of intestacy – i.e. where a person dies without a Will. Utah Estates, Powers and Trusts Law (“EPTL”) Section 1-2.5 defines a distributee as “a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution”. A Utah distributee lawyer can advise you on your rights and assert them for you.
When a person dies without a Will, his or her distributees (next of kin) inherit as the statutes provide. Generally, the order of priority is the spouse and children, parents and brothers and sisters. EPTL Section 4-1.1 sets forth the order of priority for persons to receive their distributive share.
The identity of distributees is also important in other types of proceedings such as probate. Utah laws and procedures require that a decedent’s distributees be provided with notice of a probate proceeding and given the opportunity to contest the decedent’s Will. In the probate proceeding, the probate petition must contain the names and address of all of the decedent’s distributees. The petition also contains an estimate of the value of the decedent’s personal property and real property interests. At the outset of the probate case, the distributees may be given the opportunity to sign a paper by which they consent to the probate of the purported Last Will. If a distributee does not consent, he will be served with a Citation which is issued by the Surrogate’s Court and is like a Summons. The Citation contains a Court date on which the served party must appear in Court and let the Court know if they want to move forward towards objecting to the Will. Objections to a Will need to prepared and filed according to various rules and procedures. For example, a distributee lawyer in Utah can help an objectant prepare and file estate litigation papers in the Queens Surrogate’s Court. The testimony of the attesting witnesses and the person who drafted the Will can be obtained even before filing Objections pursuant to Surrogate’s Court Procedure Act Section 1404.
The rules of kinship and the determination of distributees, along with the protection of distributees’ interests, can be complex. When a person fails to prepare a Will, the laws of intestacy control estate distribution. It may be necessary for family members to present evidence at a hearing on kinship to prove their right of inheritance.
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West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
A guardian is a person appointed by the court to make legal decisions for someone who is unable to make decisions for him or herself. Two of the main types of guardianship, testamentary and temporary can be confused due to their similar names, but they’re quite different. Both are explained below.
Generally, parents may, in a properly drafted will, state their preference for a guardian for a minor child or an adult child with a disability who requires supervision over his or her person, estate, or both.
If the parents pass on while the child is still a minor or remains disabled, the court will determine the availability or appropriateness of the parents’ testamentary guardianship selection. If the selected guardian is unable, unwilling, or found unfit to be a guardian, the court will appoint a different guardian. The court typically uses the same state’s legal procedure for appointing guardians as when there’s no will to indicate a preference.
If you have a minor or disabled child that you care for, you may want to consult with an experienced attorney in your area about drafting a will to state your preference of guardian for your child.
Some state statutes provide for temporary or limited guardianships. Temporary guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated.
A temporary guardianship is different from what some states call a limited guardianship, which remains until a court order ends it. This is also called a limited conservatorship in some states, such as California. In California, limited conservatorships are only for adults with developmental disabilities. This type of limited guardianship isn’t “limited” by time like other limited guardianships, but is limited by the types of decisions the guardian is legally able to make for the person who needs care.
As guardianship laws vary by state, it’s a good idea to consult a qualified attorney in your state if your loved one needs a temporary guardianship.
One form of temporary guardianship is the emergency guardianship. This guardianship is generally granted where an emergency exists and someone is needed to give approval for the person to receive immediate services. A temporary guardian is appointed by the court to serve during the emergency only.
Generally, the person being served by the temporary guardian is disabled or incapacitated in some way. The court must determine that this person is unable to make the decisions because of minor age, mental disability, addiction, debilitating disease, or some other similar limitation. The court must generally also determine that if a guardian isn’t appointed, the person is at risk of serious harm or even death. Finally, the court must determine that there’s no other person available who can make the emergency decisions for the incapacitated person.
The emergency guardianship order is generally granted for a short period, long enough to properly handle the emergency. For example, in Ohio, the emergency guardian may only act for up to 72 hours. After the emergency has ended or subsided, the temporary guardian must file a report with the court detailing the nature of the services he or she provided and describing the outcome.
Free Consultation with a Guardianship Lawyer
If you have a question about child custody question or if you need help with a guardianship, please call Ascent Law at (801) 676-5506. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506