The circle of life is a funny thing. When we’re children, our parents seem invincible. They take care of us, teach us, and know everything. When we grow up and our parents age, however, things change. Eventually, those same parents who took care of us need taking care of. And sometimes, when parents suffer from dementia or other debilitating conditions that render them mentally and physically incapacitated, a guardianship is necessary.
Guardianship is a legal status that allows one person to make decisions for another person, even without that person’s consent. Guardians have a lot of power and authority. They can make decisions regarding money, housing, medical care, end-of-life decisions, etc. Because so much power is granted under a guardianship, courts are cautious to grant them.
To obtain a guardianship, you must prove essentially two things:
- The person over whom you are seeking guardianship is incapacitated.
- You are a proper person to act as guardian.
First, let’s discuss incapacity for a moment. Incapacity is a legal term, and is defined in Utah law:
“Incapacitated” or “incapacity” is measured by functional limitations and means a judicial determination after proof by clear and convincing evidence that an adult’s ability to do the following is impaired to the extent that the individual lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care:
||receive and evaluate information;
||make and communicate decisions; or
||provide for necessities such as food, shelter, clothing, health care, or safety.
Utah Code § 75-5-1. What this means in real life is a person is incapacitated if he or she is unable to do basic things to make rational decisions, properly care for himself or herself, or provide basic financial care.
(When it comes to children seeking guardianship of a parent, the most common situation is something like this: dad has dementia or Alzheimer’s and can no longer care for himself, nor can he handle money and pay bills. Without someone to help in this situation, dad will not be able to adequately care for himself.)
Incapacity is usually proven by obtaining a letter from a person’s doctor stating the person is incapacitated and needs a guardian. Most doctors are happy to write such a letter if their patient needs it.
The Court also prefers to receive psychological testing showing a person is suffering from a psychological disability. Sometimes, this isn’t in the cards. If it isn’t, then multiple doctor letters (or affidavits from people who can testify to incapacity) may be necessary to establish incapacity.
Second, you have to prove you are a proper person to be a guardian. Utah law (Utah Code, Section 75-5-311) specifies who has priority in these types of situations. What it says is priority starts with who the incapacitated person has already designated (in a will or living trust) to act as guardian, and then moves to the incapacitated person’s spouse, then to the person’s children. Since spouses and children request about 95% of guardianships, there really isn’t a problem proving someone is a proper person to be a guardian.
Assuming you can prove what is required to receive guardianship, there are a couple other procedural things to keep in mind.
When you request guardianship of a parent, an independent lawyer will be assigned to your parent. This attorney will review the evidence of incapacity and meet with your parent to ensure he or she is, in fact, incapacitated. This attorney will also ensure you are a proper person to act as guardian.
And when guardianship is filed, the court will schedule a hearing and send out notice to all interested parties (e.g., spouse, children, etc.). At the hearing, your parent’s attorney will give a report to the court and state whether he or she believes a guardianship is necessary and in your parent’s best interest. The court will also ask if there is anyone who disagrees with the guardianship. If everything goes well and there are no objections, the court will grant the guardianship and you will receive paperwork proving you are now the guardian.
One last thing, if you have a parent who is no longer able to care for himself or herself because of mental or physical incapacity, please, look at helping your mom or dad by obtaining guardianship. It’s never easy asking for guardianship of a parent, but in many situations it’s necessary to ensure parents can finish out their lives in dignity.