Guardianship Necessary For Incapacitated Adult Without a Power Of Attorney


When a loved one becomes incapacitated, it can be a very difficult and emotional experience.  It can also be very stressful and confusing.  For the spouse or next of kin, incapacitation can mean a tremendous amount of responsibility and a lot of work. In Utah, and most other states, where the incapacitated individual does not have a power of attorney in place, the law requires a court guardianship and/or conservatorship proceeding before another person can step in and manage that person’s affairs.  More specifically, a guardianship is required in order to provide for the physical care of the incapacitated individual, and a conservatorship is required in order to manage the incapacitated person’s assets.

People often look at guardianship and conservatorship proceedings as needless obstacles preventing or delaying them from assisting a loved one. Remember, however, that if there is no power of attorney, there is no proof that the incapacitated individual ever consented to any specific person having authority to handle their personal care and financial affairs. In the United States, we have this thing called “due process.” That means, before we take away a person’s individual liberties and appoint someone to have power and authority over them, the law wants to make certain that such action is in the best interests of the alleged incapacitated person. That is why we have guardianship and conservatorship proceedings.

In a guardianship proceeding, the individual seeking to be appointed as the guardian of the incapacitated individual, usually with the help of an attorney, files a petition of guardianship with the court, as well as some other accompanying documents.  The law requires that the incapacitated person also has an attorney representing them.  The incapacitated person must be personally served notice of the guardianship proceeding.  Additionally, interested parties, which may include a spouse, adult children, and/or siblings of the incapacitated, must also be given notice of the proceeding.  Basically, the law wants to make sure that anyone interested in the welfare of the incapacitated individual, in addition to the incapacitated individual himself, has a chance to know about and object to the appointment of a guardian or conservator.

After a petition is filed, the court will set a hearing date.  At the hearing, the petitioner, usually through his or her attorney, will explain to the judge why a guardianship and/or a conservatorship is necessary.  The attorney for the incapacitated individual will either affirm or dispute the appointment.  Additionally, if any other parties interested in the welfare of the allegedly incapacitated individual are present, they are given an opportunity to make their case for or against the appointment.

If the judge is satisfied that a guardianship and/or conservatorship is necessary, the court will issue letters of guardianship / conservatorship.  This document provides the guardian/conservator with the proof of authority they need in order to act on behalf of the incapacitated individual.

A lot of people mistakenly assume that if they become incapacitated, their spouse or one of their kids will automatically be able to step in and make decisions on their behalf regarding medical care, personal care and financial decisions pertaining to their assets.  But that is not true.  Unless you have a power of attorney in place, your family will have to go to court and file for a guardianship and/or a conservatorship.

If you find yourself in a situation requiring appointment as a guardian, a conservator, or both, you should speak with an attorney experienced with guardianships and conservatorships.  An experienced attorney will make the process much more manageable than if you were to try and navigate the court process on your own.

Tags: , , , , , ,

No comments yet.

Leave a Reply

Name (required)

Email (will not be published) (required)

Website