When is a Guardianship Over an Adult Appropriate?

A "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.

It should first be acknowledged that any infringement upon the right of an individual to make decisions for him or herself is a very serious matter and should be undertaken only with extreme care.  After all, many men and women have died to provide the freedoms of self-determination that we all enjoy as citizens of this great nation.  Nevertheless, there comes a point in many people's lives where the ability to make decisions for oneself becomes severely limited by reason of disease or injury.  For many individuals, diseases such as Alzheimer's, Dementia, and Parkinson's (among others) can eventually lead to an inability to make sound financial or health care decisions.  In other cases, a debilitating stroke or accident-related injury can have similar effects on one's decision-making capacity.  In such situations, where there is objective proof that allowing an individual to continue to make such decisions for themselves is likely to cause real physical or financial harm to them, seeking to establish a guardian or conservator over that person is not only appropriate, but desirable.

Nevertheless, before one seeks to establish a guardianship over another, it is important to determine, to the extent possible, what the wishes of the potential ward are with respect to that decision.  In many cases, certain estate planning documents executed by an incapacitated person will indicate what that person's preference is concerning whom should be appointed guardian or conservator in the event that one is needed.

It is also possible that, with the proper execution of appropriate powers of attorney, a guardianship or conservatorship will not be necessary at all.  Many institutions will accept the acts of an agent named in a power of attorney, on behalf of the principal, as valid.  However, some institutions will not honor even valid powers of attorney - nor does the law require them to.  In those cases, it will still be necessary to establish a guardianship or conservatorship if such transactions are necessary during the lifetime of the incapacitated person.

To determine if a guardianship is appropriate for the circumstances that you may be dealing with, contact an elder law attorney in your area, or click here for more information provided by the Disability Law Center, a Utah non-profit advocacy group.  In future posts, I will explain the basic steps for establishing a guardianship over an incapacitated person in more detail so that you can know what to expect when the need arises.