Presentation on theme: "GUARDIANSHIP IN UTAH Legal Terms and Procedures. HOW DO I KNOW IF MY FAMILY MEMBER NEEDS GUARDIANSHIP? These questions are directly from the Utah Protective."— Presentation transcript:
HOW DO I KNOW IF MY FAMILY MEMBER NEEDS GUARDIANSHIP? These questions are directly from the Utah Protective Proceedings Act (Guardianship Statute) 75-5-101 Can my family member effectively discuss issues with medical personnel and other professionals? Is my family member unable to provide for their own support and residential environment? Is my family member being financially exploited? Is my family member being abused or neglected including self-injurious behavior or self-neglect?
QUESTIONS CONTINUE Can my family member manage the activities of daily living, education, support services, mental and physical health care, medication, therapy or other therapeutic devices? Can my family member give informed consent to alternative and less restrictive decisions? Does my family member understand the consequences of their decisions?
TWO PARTIES IN A GUARDIANSHIP WARD – The incapacitated person who needs to be protected and assisted. GUARDIAN – The surrogate decision maker who will be giving informed consent for a ward. – There can be up to 3 co-guardians for one Ward.
WHO CAN BE A GUARDIAN? The ward’s spouse The ward’s adult child The ward’s parent An adult with whom the ward has resided for more than 6 months An adult who has shown special care and concern for the ward
WHAT HAPPENS IF DIFFERENT PARTIES DESIRE GUARDIANSHIP? If two or more people have equal priority and can not agree to be co-guardian, the court must select the one most qualified. The court would base this decision on what is in the best interest of the ward. The court will evaluate who has been the primary care giver for the ward.
SURROGATE DECISION MAKING Guardianship is legal surrogate decision making. Guardianship allows a guardian to make decisions for a ward. Substituted Judgment: Making decisions based on what the Ward’s previously determined wants, needs, values and desires. Best Interest: Making decision based on what is in the best interest of the Ward.
TYPES OF GUARDIANSHIP Plenary or Full Guardianship – Transfers ALL rights from a ward to a guardian. The ward remains with the same rights of a minor child. Limited Guardianship – Limits decision making to specific areas of a ward’s life. The protected person retains all rights not expressly granted to the guardian by the court order. By statute the court MUST enter the least restrictive order consistent with the needs of the protected person.
LIMITS OF GUARDIANSHIP Medical Habilitation Education Residential Financial
MEDICAL Guardian makes decisions and gives informed consent for medical procedures, medications, hospitalizations, medical treatment plans, dental procedures and end of life decisions. If it the decision has to do with a ward’s body it falls within the this limit of guardianship.
HABILITATION Guardian makes decisions about the training programs a ward may be involved in. This includes any type of therapy, day program, job skill development or any training the ward is involved in to improve a their independence and quality of life.
EDUCATIONAL Guardian makes decisions regarding a ward’s education including school programs and education settings. This is important for wards during the age 18-22 when a ward transitions from school to adult programs.
RESIDENTIAL Guardian makes decisions about where a ward lives and with whom the ward lives. This limit is extremely important if the ward is living or will ever be living in any type of facility, group home, supervised apartment or any residential setting that is administered through a provider.
FINANCIAL Guardian makes decisions that pertain to a ward’s finances. This might include decisions about how Social Security benefits are used, establishing checking accounts and signing any leases or other financial agreements for the ward. A Conservator is needed if the ward has assets of $50,000 or more.
CONSERVATORSHIP A conservator is required if a person has assets over $50,000 that have not been protected in a Special Needs Trust. A conservator manages a protected person’s money only. Conservators must file yearly accounting to the court to indicate how a ward’s assets have been utilized during the year.
DUTIES OF A GUARDIAN Exhibits the utmost trustworthiness, loyalty and fidelity to the protected person Remains personally involved with the protected person Makes decisions using the concepts of substituted judgment or best interest Provides informed consent Notifies the court when the ward moves Encourages the ward to participate in decisions to best of their ability Submits required paperwork to the court
WHEN TO START THE PROCESS You DO NOT need to obtain guardianship until a person is 18 years old. You are NOT seeking guardianship of a minor child, but an incapacitated adult. We advise that you start the process 2-3 months prior to the protected person turning 18.
HOW TO GET STARTED Psychological Evaluation/Summary – The school usually performs this evaluation every 3-5 years. – You can utilize evaluations that were done in the past – Can be a copy Doctor’s letter – Doctor needs to identify the ward’s disability or diagnosis. – Doctor needs to state that a guardianship is needed due to the ward’s disability/diagnosis. – Needs to be an ORIGINAL—not a copy
LEGAL REPRESENTATION A Ward must always be represented by an attorney. These are the Ward’s Due Process Rights and can not be waived. Petitioners/Guardians have two options: – Legal Representation from an attorney – Pro Se Representation (represent yourself)
WARD’S LEGAL REPRESENTATION Needs to be appointed by Judge, if the Ward does not have capacity to choose. Ward’s counsel should be an independent and zealous advocate for the Ward. Reads through all pertinent medical information. Visits with the ward prior to the hearing Represents the Ward and the Ward’s needs during the actual hearing
ATTORNEY REPRESENTATION Attorney prepares all paperwork Attorney files all paperwork Attorney represents petitioner/guardian during the Guardianship court hearing Attorney deals directly with the ward’s attorney This option is more costly but requires less work for the petitioner/guardian
PRO SE REPRESENTATION Petitioner/guardian prepares their own paperwork Petitioner/guardian files their own paperwork Petitioner/guardian represents themselves during court hearing Petitioner/guardian works directly with the ward’s attorney This option is less costly, but is more work for the petitioner/guardian
INTERESTED PARTIES All interested parties in a guardianship or conservator proceeding need to receive Notice of Hearing from the court. Who is considered interested parties: – Spouse of the Ward – All living parents of the Ward – Children of the Ward – Siblings of the Ward who are over the age of 18
PRO SE TRAINING Petitioners/guardians can receive training to act Pro Se from the following agencies: – Utah Legal Center – District Court – Guardianship Associates of Utah
DOCUMENTS FILED FOR GUARDIANSHIP/CONSERVATOR HEARING Petition for Guardianship and/or Conservator Acceptance of Appointment Appointment of Counsel for the Ward Findings of Fact and Conclusions of Law Order of Appointment of Guardianship and/or Conservator Letters of Guardianship and/or Conservator
ONGOING REPORTING RESPONSIBILITIES Guardian: – Guardianship Management Plan (parent guardians exempt if Ward is developmentally disabled) – Yearly Status Report on the Ward (parent guardians exempt if Ward is developmentally disabled) – Petition to Terminate Guardianship within 30 days of the protected person’s death Conservator: – Inventory of Assets – Yearly accounting
CAN A GUARDIANSHIP/CONSERVATOR BE CHANGED? A guardianship can be modified to: Add or delete a guardian Add or delete limits of guardian Change a guardianship from limited to plenary (full) guardianship
SUCCESSOR GUARDIANS There are two ways to designate a successor guardian: – Successor guardians can be named in the original guardianship paperwork – Guardian(s) can specify in their Will or Trust who will succeed them as guardian In both cases the successor guardian will still need to sign and file an Acceptance of Appointment and receive new Letters of Guardianship
GUARDIANSHIP ASSOCIATES OF UTAH Assisted Family Guardianship Program that provides two options to families seeking guardianship. – Full Legal Representation for both ward and guardian. – Pro Se training for petitioner/guardian and legal representation for the ward. Pro Se training held the third Thursday of each month. www.guardianshiputah.org
GUARDIANSHIP ASSOCIATES OF UTAH 320 W. 200 S. #140B SLC, UT 84101 801-533-0203 guardianshiputah.org