Understanding the Importance and Implications of Guardianships and Conservatorships

Often in estate planning, attorneys present the idea of guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some people, these "perfect world" conditions do exist. However, for many others, they do not.

Increasingly, attorneys run into the following situations:

1. Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the necessary delegation documents in place to empower these helpers as their agents.

2. Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.

3. The people who the senior trusted and anticipated would be appropriate have become exploitive and abusive to them.

4. Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.

When is a Guardianship Over an Adult Appropriate?

Courtroom and U.S. FlagA "guardianship" establishes the legal right of one individual to make decisions regarding the physical care of another who is no longer able to make such decisions for themselves.  A "conservatorship" is similar to a guardianship, however the decision-making power granted is limited to the financial affairs of the individual over whom the conservatorship is established (the "ward").  These powers can only be granted by a court of law where jurisdiction is proper (e.g., where the ward lives).  The laws that govern these situations can be found in Title 75, Chapter 5 of the Utah Code.

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