Guardianships after Changes to Utah Code, Section 75-5-303, A.K.A., My Morning in Probate Court

Recently, the Utah Legislature determined intellectually-incapacitated adults don’t need a lawyer when their parents request guardianship over them. This change was codified in Utah Code, Section 75-5-303(d).

Why Section 75-5-303(d) Is a Joke

This was a horrible idea for a number of reasons:

1. Almost all attorneys who help families and incapacitated adults with guardianships thought this law was poorly thought out and just bad. Same with advocacy groups who help these individuals.
2. It creates a system in which incapacitated adults have essentially no legal due process rights. Guardianship is a very serious matter. It gives one person (or multiple people) almost total control over another person. This authority extends to money, medical decisions, living conditions and locations, end-of-life decisions, etc., etc., etc. When you make a determination like this, someone with an IQ of 40 really needs some protection. This law strips away any protection from the most vulnerable population in our society. That’s not right and not good.
3. Piggybacking on #2, this change takes away any outside determination that someone who wants total control over another human being is appropriate for that role. In guardianship, you have to establish two things: (1) the person over whom guardianship is sought is actually incapacitated, and (2) the person asking for guardianship is appropriate. Without an attorney for the incapacitated person, there is no one there to ensure the parents asking for guardianship are, in fact, appropriate to act as guardians.

(Note: My understanding of the origin of this bill is a parent thought it insulting they had to pay someone to act as their child’s attorney, so the attorney could then determine if that parent was appropriate to act as guardian of their own child. It might well be insulting, but, with all respect, who cares? The parent’s emotions are not important. What’s important is the safety and protection of the intellectually impaired adult. Before I was an attorney, I worked for many years with this exact population. I have seen parents do terrible things to their intellectually-impaired children: financial exploitation (stealing Social Security Disability money was always a favorite), sexual exploitation, physical abuse, social isolation, and emotional abuse. Thankfully, it didn’t happen often — the vast majority of parents on the up and up and just want to help their kids through life — , but it happened much more often than people think.)

4. I could go on, but you get the point.

This Morning at Probate Court

Now, I didn’t write this post to rant about 75-5-303(d)’s tortured logic, although I think the change is an abomination and should be repealed ASAP. Instead, I wanted to write about my experience in probate court this morning.

I do a number of guardianships for families and have for years, usually representing these intellectually impaired adults. This morning was the first day I have been in court since the law came in to effect and parents were finalizing guardianships without attorneys representing their intellectually-impaired children.

The first family went up to the podium in front of the judge (a very good and reasonable judge) with a child that said, I believe, one word. The judge recognized there was no attorney representing the parents, so he swore them in and asked them questions. One of the questions was, “Have you spoken to [child’s name] about the guardianship and explained things to him?” They replied they had tried, but he didn’t really understand anything. Then the judge asked [child’s name] if he knew why he was there. A grunt was the response. The judge then asked if he was okay with his parents having guardianship. The intellectually-impaired child responded with a, “Yes.” The judge asked the parents why they didn’t hire an attorney. The responded with, “Because he’s obviously disabled.” There was no discussion regarding whether the parents were appropriate to act as guardians. The judge then concluded that under the statute, the parents had met their burden and no counsel was required.

The second family went through much the same process, except their child couldn’t speak at all. It was exceedingly obvious to everyone in the court (including about twenty-five attorneys) this intellectually-impaired adult had absolutely no idea what was going on. When the judge asked if they had spoken to their child about guardianship, they admitted they hadn’t even tried. “He’s disabled and doesn’t understand anything,” was the exact response. That was also the response when the judge asked why they hadn’t hired an attorney to represent their son’s interests. The judge approved the guardianship (a plenary guardianship). This person’s IQ couldn’t have been above 30.

Each of these guardianships took less than two minutes.

The whole thing was a circus show. (Not because of the judge. Let me be clear about this: the judge was just doing what the statute tells him to do. He was bound and he did his job with dignity. The problem is with the Utah legislators who thought stripping the intellectually impaired of all due process rights was a stellar idea.) I put my head in my hands as the rights of these individuals was taken away without the slightest oversight. I have never been so embarrassed to be an attorney in Utah as I was this morning.

The saddest thing is the average cost of representation for these individuals is $300 to $400. Apparently, due process for society’s most vulnerable adults is worth less than what most people spend on gas every month.