About Guardianship

Summary

Section Summary: This section will help parents of children with disabilities understand more about legal guardianship, why it is an important consideration, what the process is, and how it will impact both the parents and the child. **Population: Age 18 or older (but planning should begin before age 18)**

Introduction

Guardianship is a consideration for people with disabilities who are emancipated or of majority (age 18) or older. However, parents need to be aware of the possible need for guardianship of their child with disabilities sooner rather than later so that they can make the necessary preparations, including: evaluating over a period of time the need for their child to have guardianship, understanding why a parent may need to become the guardian of his own child, learning the implications and process of guardianship, and setting aside funds to pay for it.

Importance

In Utah, the age of majority (when someone legally becomes an adult) is 18. At age 18 a person is emancipated and receives full adult rights (rights he doesn?t have as a child) the most important of which is the right to self-determination. The term ?legal age? pertains equally to all who have reached 18, including those who lack mental capacity. Guardianship may be an important consideration for an adult who is legally of age, has the right to full self-determination, yet who lacks the mental capacity to exercise that right. A person?s lack of ability to exercise the right of self-determination which includes choices about where he works or lives, medical treatments, and how his money is spent, may create a need for a substitute decision maker (someone else to make or assist in making those choices) and might create the need to establish legal guardianship. Because all adults have the right to due process and equal protection under the law, it is necessary for parents to complete the court process of legal guardianship in order to continue making decisions for their family member with disabilities who is over the age of 18.

Legal Guardianship in General Terms

Legal guardianship is a court process. The goal of the process is to provide someone to help an adult with disabilities to make appropriate life decisions. Adult guardianship should not be filed before a child has reached age 18. To begin the process, a petition asking for guardianship must be prepared and filed in the district probate court of the county where the proposed ward (person under guardianship) lives. Both the person filing the petition (the prospective guardian) and the person going under guardianship (the prospective ward) must have attorneys representing them, and there must be a court hearing. Documentation of the prospective ward?s incapacity must be provided, and fees must be paid for both attorneys and the court filing fee. Other documents, in addition to the petition, include the acceptance (showing that the guardian agrees to be under court jurisdiction), a court order of appointment (signed by the court agreeing to the guardianship) and letters of guardianship (issued by the court which gives the guardian the legal ability to act for his ward).

Legal Guardianship in Utah

Limited guardianship is preferred in Utah. Limited guardianship allows the guardian to make only the types of decisions named in the petition and allowed by the court in the court order. A typical limited guardianship may include medical, habilitation, residential and financial guardianship, because these are the types of decisions a person who lacks functional capacity most typically needs. A limited guardianship allows for decision-making within the areas agreed to by the court. A limited guardian may not make other kinds of decisions. This is because it is important for a person under guardianship to retain all of his other adult rights.

Full, or plenary, guardianship is another, more far reaching form of guardianship and should be employed only when there is no other option.

Incorporating this Information

Guardianship is not something that should be taken lightly. It is a court process that awards some rights held by one person to someone else. It essentially places an adult in the position of a child within the boundaries of the guardianship. It requires honesty, integrity and objectivity on the part of the guardian to support the ward in his wishes while at the same time acting in his best interests. Guardianship is not needed by every person who has disabilities and is over 18. Many individuals are capable of making appropriate decisions with little or no assistance. Careful consideration should be given to the individual needs of every person with disabilities before entering into legal guardianship.

Resources

  • Get detailed information from probate attorneys who have experience with guardianship of adults with disabilities.
  • The Office of Public Guardian (801)538-8255
  • Guardianship Associates of Utah (801)533-0203
  • National Guardianship Association: (520) 881-6561 "http://www.guardianship.org": http://www.guardianship.org
  • -The Resource Foundation for Children with Challenges: http://www.specialchild.com/archives/ia-025.html
  • Disability Law Center: A fact sheet on guardianship http://www.disabilitylawcenter.org/publications/Fact%20sheet%20-%20Guardianship.pdf

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