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[Utah Code Table of Contents]
[TITLE 75. Table of Contents]
[CHAPTER 5. Table of Contents]
75-5-301 Appointment of guardian for incapacitated person.
(1) The parent of an incapacitated person may by will, or by written instrument as provided in Section 75-5-202.5 , appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or with whom he resides or to at least one adult relative in the nearest degree of kinship to the incapacitated person in which there is an adult, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, or where the written instrument is filed, if prior thereto both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings. A provision contained in a person's will or written instrument appointing a guardian of his minor children is not to be considered to be an appointment of a guardian of an incapacitated adult child unless it appears from the will that this was the testator's intention.
(2) The spouse of a married incapacitated person may by will or written instrument appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or with whom he resides or to at least one adult relative in the nearest degree of kinship to the incapacitated person in which there is an adult, the guardian files acceptance of appointment in the court in which the will is informally or formally probated or the written instrument is filed. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.
(3) This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.
(4) On the filing with the court in which the will was
probated or the written instrument was filed, of written
objection to the appointment by the person for whom a testamentary
or instrumental appointment of guardian has been made, the
appointment is terminated. An objection does not prevent
appointment by the court in a proper proceeding of the nominee
named by will or written instrument or any other suitable
person upon an adjudication of incapacity in proceedings
under the succeeding sections of this part.
1985
75-5-302 Venue.
The venue for guardianship proceedings for an incapacitated
person is in the place where the incapacitated person resides
or is present. If the incapacitated person is admitted to
an institution pursuant to order of a court of competent
jurisdiction, venue is also in the county in which that court
sits.
1975
75-5-303 Procedure for court appointment of a guardian of an incapacitated person.
(1) The incapacitated person or any person interested in the incapacitated person's welfare may petition for a finding of incapacity and appointment of a guardian.
(2) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity; and unless the allegedly incapacitated person has counsel of the person's own choice, it shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the person alleged to be incapacitated, unless the court determines that the petition is without merit, in which case the attorney fees and court costs shall be paid by the person filing the petition.
(3) The person alleged to be incapacitated may be examined by a physician appointed by the court who shall submit a report in writing to the court and may be interviewed by a visitor sent by the court. The visitor also may interview the person seeking appointment as guardian, visit the present place of abode of the person alleged to be incapacitated and the place it is proposed that the person will be detained or reside if the requested appointment is made, and submit a report in writing to the court.
(4) The person alleged to be incapacitated shall be present
at the hearing in person and see or hear all evidence bearing
upon the person's condition. If the person seeking the guardianship
requests a waiver of presence of the person alleged to be
incapacitated, the court shall order an investigation by
a court visitor, the costs of which shall be paid by the
person seeking the guardianship. The investigation by a court
visitor is not required if there is clear and convincing
evidence from a physician that the person alleged to be incapacitated
suffers from: (a) fourth stage Alzheimer's Disease; (b) extended
comatosis; or (c) profound mental retardation. The person
alleged to be incapacitated is entitled to be represented
by counsel, to present evidence, to cross-examine witnesses,
including the court-appointed physician and the visitor,
and to trial by jury. The issue may be determined at a closed
hearing without a jury if the person alleged to be incapacitated
or the person's counsel so requests.
1988
75-5-304 Findings - Limited guardianship preferred - Order of appointment.
(1) The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person.
(2) The court shall prefer a limited guardianship and may only grant a full guardianship if no other alternative exists. If the court does not grant a limited guardianship, a specific finding shall be made that nothing less than a full guardianship is adequate.
(3) A guardian appointed by will or written instrument,
under Section
75-5-301
, whose appointment has not been prevented or
nullified under Subsection
75-5-301
(4), has priority over any guardian who may
be appointed by the court, but the court may proceed with
an appointment upon a finding that the testamentary or instrumental
guardian has failed to accept the appointment within 30 days
after notice of the guardianship proceeding. Alternatively,
the court may dismiss the proceeding or enter any other appropriate
order.
1988
75-5-305 Acceptance of appointment - Consent to jurisdiction.
By accepting appointment, a guardian submits personally
to the jurisdiction of the court in any proceeding relating
to the guardianship that may be instituted by any interested
person or any person interested in the welfare of the ward.
Notice of any proceeding shall be delivered to the guardian
or mailed to him by ordinary mail at his address as listed
in the court records and to his address as then known to
the petitioner.
1977
75-5-306 Termination of guardianship for incapacitated person.
The authority and responsibility of a guardian for an
incapacitated person terminates upon the death of the guardian
or ward, the determination of incapacity of the guardian,
or upon removal or resignation as provided in Section
75-5-307
. Resignation of a guardian does not terminate
the guardianship until it has been approved by the court.
Testamentary appointment under an informally probated will
terminates if the will is later denied probate in a formal
proceeding. Termination does not affect his liability for
prior acts nor his obligation to account for funds and assets
of his ward.
1977
75-5-307 Removal or resignation of guardian - Termination of incapacity.
(1) On petition of the ward or any person interested in the ward's welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept the guardian's resignation and make any other order which may be appropriate.
(2) An order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in the ward's welfare may petition for an order that the ward is no longer incapacitated and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.
(3) Before removing a guardian, accepting the resignation
of a guardian, or ordering that a ward's incapacity has terminated,
the court shall follow the same procedures to safeguard the
rights of the ward as apply to a petition for appointment
of a guardian as provided under Section
75-5-303
.
1988
75-5-308 Visitor in guardianship proceeding.
A visitor is, with respect to guardianship proceedings,
a person who is trained in law, nursing, or social work and
is an officer, employee, or special appointee of the court
with no personal interest in the proceedings.
1975
75-5-309 Notices in guardianship proceedings.
(1) In a proceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following:
(a) the ward or the person alleged to be incapacitated and spouse, parents, and adult children of the ward or person;
(b) any person who is serving as guardian or conservator or who has care and custody of the ward or person;
(c) in case no other person is notified under Subsection (1)(a), at least one of the closest adult relatives, if any can be found; and
(d) any guardian appointed by the will of the parent who died later or spouse of the incapacitated person.
(2) The notice shall be in plain language and large type and the form shall have the final approval of the Judicial Council. The notice shall indicate the time and place of the hearing, the possible adverse consequences to the person receiving notice of rights, a list of rights, including the person's own or a court appointed counsel, and a copy of the petition.
(3) Notice shall be served personally on the alleged incapacitated
person and the person's spouse and parents if they can be
found within the state. Notice to the spouse and parents,
if they cannot be found within the state, and to all other
persons except the alleged incapacitated person shall be
given as provided in Section
75-1-401
. Waiver of notice by the person alleged to
be incapacitated is not effective unless the person attends
the hearing or the person's waiver of notice is confirmed
in an interview with the visitor appointed pursuant to Section
75-5-303
.
1988
75-5-310 Temporary guardians.
(1) If an incapacitated person has no guardian and an emergency exists or if an appointed guardian is not effectively performing his duties and the court further finds that the welfare of the incapacitated person requires immediate action, it may, without notice, appoint an appropriate official as temporary guardian for the person for a specified period not to exceed 30 days pending notice and hearing.
(2) The court shall, in all cases in which a temporary
guardian is appointed, hold a hearing within five days pursuant
to Section
75-5-303
. Unless the allegedly incapacitated person
has already obtained counsel, the court may appoint an appropriate
official or attorney to represent that person in the proceeding.
Until the full hearing and order of the court, the temporary
guardian shall be charged with the care and custody of the
ward and shall not permit the ward to be removed from this
state. The authority of any permanent guardian previously
appointed by the court is suspended so long as a temporary
guardian has authority. A temporary guardian may be removed
at any time, and shall obey such orders and make such reports
as the court requires.
1979
75-5-311 Who may be guardian - Priorities.
(1) As used in this section:
(a) "Specialized care professional" means a person who:
(i) has been certified or designated as a provider of guardianship services by a nationally recognized guardianship accrediting organization;
(ii) is licensed by or registered with the Division of Occupational and Professional Licensing as a health care provider including, but not limited to, a registered nurse licensed under Section 58-31b-301 , a social service worker, certified social worker, or clinical social worker licensed under Section 58-60-205 , a marriage and family therapist licensed under Section 58-60-305 , a physician licensed under Title 58, Chapter 67, or a psychologist licensed under Title 58, Chapter 61; or
(iii) has been approved by the court as one with specialized training and experience in the care of incapacitated persons.
(b) "Suitable institution" means any nonprofit or for profit corporation, partnership, sole proprietorship, or other type of business organization that is owned, operated by, or employs a specialized care professional.
(2) Any competent person or suitable institution may be appointed guardian of an incapacitated person.
(3) The court shall appoint a guardian in accordance with the incapacitated person's most recent nomination, unless that person is disqualified or the court finds other good cause why the person should not serve as guardian. That nomination shall have been made prior to the person's incapacity, shall be in writing and shall be signed by the person making the nomination. The nomination shall be in substantially the following form: Nomination of Guardian by an Adult
I, (Name), being of sound mind and not acting under duress, fraud, or other undue influence, do hereby nominate (Name, current residence, and relationship, if any, of the nominee) to serve as my guardian in the event that after the date of this instrument I become incapacitated. Executed at ____________________________ (city, state) on this ____________ day of ______________ ____________________________________ (Signature)
(4) Except as provided in Subsection (3), persons who are not disqualified have priority for appointment as guardian in the following order:
(a) a person who has been nominated by the incapacitated person, by any means other than that described in Subsection (3), if the incapacitated person was 14 years of age or older when the nomination was executed and, in the opinion of the court, that person acted with sufficient mental capacity to make the nomination;
(b) the spouse of the incapacitated person;
(c) an adult child of the incapacitated person;
(d) a parent of the incapacitated person, including a person nominated by will, written instrument, or other writing signed by a deceased parent;
(e) any relative of the incapacitated person with whom he has resided for more than six months prior to the filing of the petition;
(f) a person nominated by the person who is caring for him or paying benefits to him; or
(g) a specialized care professional, so long as the specialized care professional does not:
(i) profit financially or otherwise from or receive compensation for acting in that capacity, except for the direct costs of providing guardianship or conservatorship services; or
(ii) otherwise have a conflict of interest in providing
those services.
1998
75-5-312 General powers and duties of guardian - Penalties.
(1) A guardian of an incapacitated person has only the powers, rights, and duties respecting the ward granted in the order of appointment under Section 75-5-304 .
(2) Absent a specific limitation on the guardian's power in the order of appointment, the guardian has the same powers, rights, and duties respecting the ward that a parent has respecting the parent's unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court:
(a) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled to custody of the person of the ward and may establish the ward's place of abode within or without this state.
(b) If entitled to custody of the ward the guardian shall provide for the care, comfort, and maintenance of the ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of the ward is in need of protection.
(c) A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service.
(d) If no conservator for the estate of the ward has been appointed, the guardian may:
(i) institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform that duty; or
(ii) receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but the guardian may not use funds from the ward's estate for room and board which the guardian, the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one adult relative in the nearest degree of kinship to the ward in which there is an adult. The guardian must exercise care to conserve any excess for the ward's needs.
(e) (i) A guardian is required to report the condition of the ward and of the estate which has been subject to the guardian's possession or control, as required by the court or court rule.
(ii) The guardian shall, for all estates in excess of $50,000, excluding the residence owned by the ward, send a report with a full accounting to the court on an annual basis. For estates less than $50,000, excluding the residence owned by the ward, the guardian shall fill out an informal annual report and mail the report to the court. The report shall include the following: a statement of assets at the beginning and end of the reporting year, income received during the year, disbursements for the support of the ward, and other expenses incurred by the estate. The guardian shall also report the physical conditions of the ward, the place of residence, and a list of others living in the same household. The court may require additional information. The forms for both the informal report for estates under $50,000, excluding the residence owned by the ward, and the full accounting report for larger estates shall be approved by the Judicial Council. This annual report shall be examined and approved by the court. If the ward's income is limited to a federal or state program requiring an annual accounting report, a copy of that report may be submitted to the court in lieu of the required annual report.
(iii) Corporate fiduciaries are not required to petition the court, but shall submit their internal report annually to the court. The report shall be examined and approved by the court.
(iv) The guardian shall also render an annual accounting of the status of the person to the court which shall be included in the petition or the informal annual report as required under Subsection (2)(e). If a fee is paid for an accounting of an estate, no fee shall be charged for an accounting of the status of a person.
(v) If a guardian:
(A) makes a substantial misstatement on filings of annual reports;
(B) is guilty of gross impropriety in handling the property of the ward; or
(C) willfully fails to file the report required by this subsection, after receiving written notice from the court of the failure to file and after a grace period of two months has elapsed, the court may impose a penalty in an amount not to exceed $5,000. The court may also order restitution of funds misappropriated from the estate of a ward. The penalty shall be paid by the guardian and may not be paid by the estate.
(vi) These provisions and penalties governing annual reports do not apply if the guardian is the parent of the ward.
(f) If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this code; and the guardian must account to the conservator for funds expended.
(3) Any guardian of one for whom a conservator also has
been appointed shall control the custody and care of the
ward and is entitled to receive reasonable sums for services
and for room and board furnished to the ward as agreed upon
between the guardian and the conservator, if the amounts
agreed upon are reasonable under the circumstances. The guardian
may request the conservator to expend the ward's estate by
payment to third persons or institutions for the ward's care
and maintenance.
1992
75-5-313 Proceedings subsequent to appointment - Venue.
(1) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian or in which acceptance of an appointment by will or written instrument was filed over resignation, removal, accounting, and other proceedings relating to the guardianship.
(2) If the court located where the ward resides is not
the court in which acceptance of appointment is filed, the
court in which proceedings subsequent to appointment are
commenced shall in all appropriate cases notify the other
court, in this or another state, and after consultation with
that court determine whether to retain jurisdiction or transfer
the proceedings to the other court, whichever may be in the
best interest of the ward. A copy of any order accepting
a resignation or removing a guardian shall be sent to the
court in which acceptance of appointment is filed.
1985
75-5-314 Mentally incompetent veteran - Evidence of necessity for appointment of guardian.
Where a petition is filed for the appointment of a guardian
for a mentally incompetent ward, a certificate of the administrator
or his duly authorized representative, that such person has
been rated incompetent by the veterans administration on
examination in accordance with the laws and regulations governing
such veterans administration and that the appointment of
a guardian is a condition precedent to the payment of any
moneys due such ward by the veterans administration, shall
be prima facie evidence of the necessity for such appointment.
1975
75-5-315 Copies of public records furnished to veterans administration.
When a copy of any public record is required by the veterans
administration to be used in determining the eligibility
of any person to participate in benefits made available by
the veterans administration, the official custodian of such
public record shall without charge provide the applicant
for such benefits or any person acting on behalf of the authorized
representative of the veterans administration with a certified
copy of such record.
1975
75-5-316 Expedited guardianship proceedings.
(1) (a) With regard to persons who are residents of the Utah State Developmental Center, the expedited process provided by this section may be applied to obtain a limited guardianship.
(b) For purposes of this section:
(i) "Limited guardianship" means a guardianship solely for the purpose of granting consent for medical care and for participation in approval of the ward's individualized program plan.
(ii) "Ward" means a resident of the Utah State Developmental Center who is the subject of guardianship proceedings under this section.
(2) Any person interested in the incapacitated person's welfare may file a petition for a finding of incapacity and appointment of a guardian. That person may seek the limited guardianship pro se, using the forms described in this section. Any fee for filing a petition for a limited guardianship shall be waived if the guardian is proceeding under this section.
(3) Upon filing a petition for limited guardianship under this section, the court shall set a date for hearing.
(4) The ward has the right to be present at the hearing and to see and hear all evidence relating to his condition.
(5) At that hearing the court shall review the affidavit of the superintendent of the Utah State Developmental Center, described in Subsection (11), and determine whether notice has been given to the appropriate persons described in Subsection (6).
(6) If the proposed guardian is not a parent or relative of the ward, personal notice shall be given to the ward's spouse, parents, and any adult children of the ward. Personal notice shall also be given to other persons as the court may direct.
(7) The court may, in its discretion, appoint a guardian ad litem to represent the ward in the hearing, and may request independent evaluation by a physician appointed by the court. The physician shall submit his findings to the court in writing.
(8) The court may grant the petition for a limited guardianship and sign the Order of Appointment if the court finds that:
(a) the appropriate parties have been given notice;
(b) the ward is incapacitated, based on the affidavit of the superintendent of the Utah State Developmental Center and any affidavit or testimony of persons entitled to receive notice or requested to present evidence under this section; and
(c) it is necessary and desirable to establish the guardianship.
(9) Venue for these expedited guardianship proceedings shall be the same as that described in Section 75-5-302 .
(10) A petition for a limited guardianship shall include the following information:
(a) the interest of the petitioner;
(b) the name, age, residence, and address of the ward;
(c) verification that the ward is a resident of the Utah State Developmental Center;
(d) the name and address of the nearest relative of the ward; and
(e) the reason for appointment of guardianship.
(11) The petitioner shall also provide the court with an affidavit of the superintendent of the Utah State Developmental Center that includes the following information:
(a) that the ward is a resident of the Utah State Developmental Center;
(b) the date the ward was originally admitted to the Utah State Developmental Center;
(c) the diagnosis of the ward, including a description of the ward's disabling condition, the level of retardation, and any medical or physical conditions;
(d) that the Utah State Developmental Center is certified as an Intermediate Care Facility for the Mentally Retarded under Title XIX of the Social Security Act;
(e) that because of that certification, the Utah State Developmental Center receives financial participation from the United States Government for its operation and maintenance costs; and
(f) that federal regulations under Title XIX require the ward to have a guardian appointed for the sole purpose of giving consent for medical and dental care and of participation in and approval of the ward's individual program plan.
(12) If the court finds that, under the requirements of this section the proposed limited guardian should be appointed, it shall enter an order establishing that limited guardianship in substantially the following form:
The court finds that:
(a) appointment of a limited guardianship for (named ward) is necessary and desirable as a means of providing continuing care and supervision and to ensure his welfare;
(b) the ward is incapacitated;
(c) (named guardian) is appointed as the limited guardian of (named ward); and
(d) the guardianship is a limited guardianship solely for the purpose of:
(i) granting permission for medical and dental care on behalf of the ward; and
(ii) participation in the development and approval of the ward's individual program plan.
(13) Appointment of guardianship under this section places
no additional responsibility or liability on the guardian
with regard to the ward. The limited guardianship is solely
for consent for medical care and approval of the ward's individualized
program plan, and shall not be construed to increase or create
liability or responsibility for the guardian.
2001
