The Guardianship Process
One of our more popular requests at the DLC, is for information about guardianship. By law, once a person turns 18-years-old, they’re considered competent to make decisions about their life. These decisions include medical, financial, employment, education, housing and other choices. Sometimes, parents, siblings, spouses, etc. feel that they need to help their adult family member with a disability or aging parent with those decisions.
In order for anyone to legally make decisions for an adult, a court must appoint them to do so. There are several options, such as, a conservatorship, power of attorney, advanced health care directives, default surrogate health care decision-makers, trusts, etc. Guardianship is a more restrictive option to consider only when necessary. Sometimes it is the best fit for someone who is more incapacitated.
Maybe you have questions about the guardianship process too. As a starting point, this article provides answers to some basic questions. For the purposes of this article, “you” refers to the person wanting to become a guardian and “family member” refers to the person who might need a guardian. Of course, it is not necessary for a guardian to be related. We’re just trying to keep it simple.
Steps in the Guardianship Process
Obtain the forms you’ll submit to the court. These can be found on the Administrative Office of the Courts website (https://www.utcourts.gov/howto/family/gc/guardianship/index.html). For a simple checklist of forms you’ll submit with your petition and forms you’ll bring to court, visit http://bit.ly/1SAueYp.
Complete the forms and gather the medical information that needs to be submitted with the forms.
File a petition with the Court by submitting the completed forms and medical documentation to the Office of the Court in the county where your family member resides or is present. Pay the filing fee.
After filing, the Court will send notice to parties of interest identified in the law, such as, a current guardian, parents, spouse, etc. The Court will also send you and the interested parties a notice of an initial hearing date and time.
Attend the hearing and bring the necessary documents.
Each district court may proceed a little differently. Generally, at the hearing, the judge will find out if there are any objections to the guardianship. The judge may ask for limited evidence and testimony about your family member’s diagnosis and their ability to make decisions.
If there are no objections and sufficient documentation is provided, an order appointing you as guardian will likely be issued at the hearing, making the guardianship effective immediately.
Will I Need to Hire an Attorney?
It’s up to you whether or not you want to represent yourself or hire an attorney to file the petition and represent you at the hearing.
For your family member, the decision about whether they require legal counsel is made by a judge. The law has traditionally required that the family member you are seeking guardianship of (sometimes referred to as the “proposed ward”), be represented by counsel. However, beginning this year, judges have the authority to waive your family member’s right to counsel if (1) the proposed ward is the biological or adoptive child of the petitioner; (2) the proposed ward’s estate is not more than $20,000; (3) the proposed ward appears in court; and (4) the judge decides that representation of the proposed ward is not necessary to protect their interests.
Waiver of counsel will not likely be freely given because a guardianship takes away an individual’s important rights. Since the judge will decide at the beginning of the case whether to waive your family member’s right to counsel, it is important that you submit adequate medical/ psychological information when filing your petition. The judge will likely NOT waive your family member’s right to counsel if: 1) they understand the proceedings and they want an attorney, or; 2) they object to, or don’t like all the areas where you want to make decisions for them.
There is free or low cost representation available for your family member through the Guardianship Signature Program. More information about this in “Resources”.
How Can I Obtain Medical Documentation?
The medical documentation that you’ll submit with your petition can be a letter—written in the past year—from your family member’s treating physician, psychiatrist, psychologist, or licensed clinical social worker. It can also be a recent psychological evaluation. The documentation should identify your family member’s diagnoses, their functional limitations, and the types of decisions they are not able to make. If your family member is still in school or just graduated, there should be a recent enough psychological evaluation in their school files. Individual Education Programs (IEP’s) and other school evaluations, can also be helpful in showing what the individual can and cannot do. If your family member has received mental health treatment, there may be some evaluations or other useful reports, in their medical files. If they receive services from the Division of Services for People with Disabilities (DSPD), there should be psychological evaluations, person-centered support plans, and other useful reports in their files.
How Much Does It Cost?
Normally, the filing fee is $360, but if your family member is your natural or adoptive child then the fee is only $35. The court may also wave the filing fee if you or your family member is indigent.
Are There Different Types of Guardianship?
Yes! Guardianship should be customized to your family member’s needs. A limited guardianship, preferred by the law, specifies certain types of decisions you can make as a guardian. For example health care, residential, educational, or financial decisions.
A full (plenary) guardianship is granted only when nothing less will meet your family member’s needs. Full guardianship grants you the right to make all the decisions a parent would make for a minor child. The court should only grant a full guardianship when evidence supports the need for one.
Are There Resources to Help?
Guardianship Signature Program (GSP) – This program provides free or low-cost representation for the proposed ward. It’s the Court’s responsibility to ensure that your family member has appropriate legal representation. Therefore, if your petition does not say who’ll represent your family member, or your petition includes a request that the court appoint your family member an attorney, the court clerk will send an e-mail to lawyers in the district who are part of the GSP. The first lawyer to respond is appointed as your family member’s counsel.
Disability Law Center – We can provide basic information about the rights of people with disabilities and guardianship law. We’re happy to help you connect with local resources. However, we cannot represent a petitioner or a proposed ward in guardianship proceedings, nor can we offer specific legal advice about your guardianship situation. Please feel free to call us, or visit our website where we’ll continue to provide additional information, links, and resources about guardianship. http://disabilitylawcenter.org/newsletter-spring-2016/#guardianship
GUARDIANSHIP SIGNATURE PROGRAM:
In many District Courts a new program allows Petitioners to request that an attorney be appointed to represent the protected person. The court is accumulating names of attorneys who are willing to represent protected individuals at reduced fees. The fees for this attorney are based on the income of the protected person and in many cases this representation could be provided free of charge.
Additional Information Can Be Found
By visiting the National Guardianship Association, Inc. ~ http://www.guardianship.org/