Procedure for Appointing a Guardian for an Adult
Talk to an attorney
You are not required to hire an attorney, but guardianships are complicated. Consider talking to an attorney to go over your options. One way to talk to an attorney is to visit a free legal clinic. Clinics provide general legal information and give brief legal advice. You might also hire an attorney for just part of your case or to do one particular thing, rather than represent you for the whole case. For more information, see our page on Finding Legal Help.
Return to TopDifference between a guardian, conservator and representative payee
Generally speaking, a guardian is responsible for decisions about the protected person's personal well-being: residence, healthcare, nutrition, education, personal care, etc. Generally speaking, a conservator is responsible for making decisions about the protected person's estate: money, property, investments, business, contracts, etc. Depending on the circumstances, the court might appoint one, or the other, or both. The guardian and the conservator might be two different people, or they might be the same person. Both offices are also known as "fiduciaries," and, upon appointment, both submit to the authority of the court.
There are many things to consider when making the decision about whether the protected person needs a guardian or conservator. An attorney experienced in this area may be able to help sort through them.
A representative payee is a person appointed by a government agency, such as the Social Security Administration, Department of Veterans Affairs or Railroad Retirement Board, to handle the monetary benefits paid by that agency. A guardian or conservator is not automatically a representative payee; they must apply with the agency for appointment as a representative payee.
Summary of guardianship
Adults have the right to make decisions about their lives. An adult who loses the capacity to make decisions may need special protection. There are several ways to help a person who has diminished capacity. One option is for a guardian to make decisions on behalf of the protected person. A guardian is a position of high trust, with responsibilities for the protected person and duties to the court. But there are other options that are less restrictive than a guardianship.
A guardian is a person appointed by a court to make decisions about the care of another, who is called a "protected person." (During the guardianship proceedings, the protected person is referred to as the "respondent.") If a guardian is appointed for the protected person, the protected person loses the legal ability to make decisions for themselves. Depriving a person of this right is a serious matter that must be carefully considered.
If the protected person needs help in some but not all areas of decision making, the court will order a limited guardianship. Under Utah law, a limited guardianship is preferred, and the court will grant a full guardianship only if no alternative exists. A limited guardian has only those powers and duties listed in the court order.
A guardian is subject to the court's authority and must follow all court orders.
A guardianship is a protective measure that helps to keep a person with diminished capacity from harm and helps them to be as independent as possible. Yet, at the same time, guardianship removes the fundamental right of the protected person to make their own decisions. The decision to seek a guardianship should be a last resort, after all other, less intrusive means have been examined first. A decision to seek a guardianship should not be based on stereotypical notions of old age, mental illness, or disability.
Being a guardian is a demanding role. A guardian has a high level of responsibility to the protected person and to the court. A guardian must provide for the protected person's care and welfare, manage their funds prudently, and, with the protected person's values in mind, make medical treatment decisions—sometimes including end-of-life decisions. Often a guardian must decide where the protected person will live and must advocate for effective services. A guardian must make regular reports to the court.
In making decisions for the protected person, the guardian should make the decision that the protected person would have made, unless that decision would harm the protected person. If the guardian does not know what the protected person would have decided because, for example, the protected person never had decision making capacity, then the guardian should make a decision based on the best interests of the protected person. The guardian therefore should remain personally involved with the protected person and maintain sufficient contact to know of the protected person's preferences, values, capabilities, limitations, needs, opportunities, and physical and mental health. The guardian should encourage, within the limits of the protected person's incapacity, the protected person's fullest self-actualization.
Definition of incapacity
Incapacity is a judge's decision, not a doctor's decision, although medical information is important to help the judge decide whether a person is legally incapacitated. Incapacity is measured by the respondent's functional limitations and it means that the respondent's ability to:
- receive and evaluate information; or
- make and communicate decisions; or
- provide for necessities such as food, shelter, clothing, health care, or safety
is impaired to the extent that s/he lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care.
To prove that the respondent is incapacitated, the petitioner must prove these things by clear and convincing evidence.
Who can serve as guardian?
Only a person appointed by a judge can serve as guardian. The judge can appoint any competent person, but Utah Code Section 75-5-311 creates a priority list, and the judge will appoint in the following order unless there is a good reason not to:
- a person nominated by the respondent;
- the respondent's spouse;
- the respondent's adult child;
- the respondent's parent;
- a person nominated by the respondent's deceased spouse;
- a person nominated by the respondent's deceased parent;
- any relative with whom the respondent has resided for more than six months before the petition is filed;
- a person nominated by the person who is caring for or paying benefits to the respondent;
- a specialized care professional.
Nominating a guardian
For oneself. Almost anyone can nominate a guardian for oneself in the event of one's future incapacity. The court will appoint the nominee unless there are good reasons not to. There are two ways to nominate a guardian for oneself. The first way is by a signed writing. This might include an appointment in an advance healthcare directive or a power of attorney. The nomination form found in the Forms section also is sufficient.
The second way to nominate a guardian for oneself is to make the nomination known in almost any way: in writing or orally to another person. However, if the nomination is made in this second way, the court will have to find that the person making the nomination was at least 14 years old and had sufficient mental capacity to make the nomination.
For another. Certain people can nominate a guardian for someone else. The person for whom the guardian is nominated might already be incapacitated or might be found to be incapacitated in the future. The spouse or parent of a person can nominate a guardian for that person. Also, someone who is caring for or paying benefits to a person can nominate a guardian for that person. The court will appoint these nominees unless there is someone with a higher priority or there are good reasons not to.
To be effective, nomination of a guardian for someone else must be in a will or other signed writing. The requirements for a will are beyond the scope of this page. A signed writing that conforms substantially to the nomination form found in the section on Forms is sufficient.
Guardian's authority
The guardian might have authority to make decisions about certain things, called a limited guardianship. Or the guardian might have authority to make decisions about all aspects of the protected person's life, called a plenary or full guardianship. Utah law prefers limited guardianships so that the protected person retains as much independence as possible. The court can give the guardian full authority only if nothing less than a full guardianship is adequate.
Limited authority
Utah law prefers a guardian with limited authority. The guardian's authority should be tailored to the protected person's needs and abilities, and the challenge will be to describe that authority specifically enough to be clear and generally enough to be flexible. Depending on the protected person's needs and abilities, the guardian may need authority to make decisions about:
- medical or other professional care, counsel, treatment, or service;
- custody and residence;
- care, comfort, and maintenance;
- training and education; and
- clothing, furniture, vehicles, and other personal effects.
If no conservator has been appointed, the guardian may need authority to make decisions about:
- proceedings to safeguard the protected person's property;
- proceedings to compel a person to support the protected person; and
- receiving money and property for the protected person and applying the money and property for the protected person's support, care, and education.
If the petitioner believes that other authority is needed, the petitioner should describe and request that authority in the petition and present evidence of the need at the hearing. The order and letter of guardianship must clearly describe the authority.
Plenary authority
If the court finds that nothing less than a full guardianship is adequate, the guardian has the same powers, rights, and duties respecting the protected person that a parent has for a minor child.
Utah law is unclear about whether the guardian has authority to make decisions about the protected person's religion, friends and sexual activity; whether the protected person can marry or divorce, drive, or consume legal substances. If the petitioner believes that authority is needed for these matters, the petitioner should describe and request that authority in the petition, present evidence of the need at the hearing, and include the authority in the order and letter of guardianship.
The right to vote cannot be assigned to the guardian in any event. The petitioner should consider whether to include in the petition and order whether the protected person retains the right to vote.
Procedure for appointing a guardian
This is a general description of the most common procedures, but some procedures may vary from court to court. And the judge may require procedures not described here based on the circumstances of a case.
Petition to appoint a guardian
Any adult may file the petition. The petitioner may request that s/he or someone else be appointed guardian. The petitioner must file the petition in the county in which the respondent resides or is present. There is a filing fee, but the fee can be waived. For more information, see our pages on Filing Procedures, Fees, and Fee Waiver.
Service of the petition and notice of hearing
Who must be served and how they must be served are governed by Utah Code Section 75-5-309 and Section 75-1-401. The petitioner must serve the petition and notice of the hearing on:
- the respondent;
- the respondent's spouse, parents, and adult children;
- the respondent's closest adult relative if respondent's spouse, parents, and adult children cannot be found;
- the respondent's guardian, conservator, caregiver and custodian;
- the person nominated as guardian by the respondent or by the respondent's parent, spouse, or caregiver;
- the respondent's heathcare decision making agent;
- the respondent's agent under a power of attorney; and
- any other interested person.
The respondent must be personally served in a manner permitted by URCP 4. The respondent's spouse and parents must be personally served in a manner permitted by URCP 4 if they can be found within the state. The others listed may be served by first class mail or other method permitted by URCP 5. Proof of service must be filed with the court. For more information and forms, see our page on Serving Papers.
If the person to be served cannot be found, they can be served by alternative means. For more information and forms, see our page on Alternative Service.
Objecting to the petition
Usually a party "answers" a petition, but in a guardianship, any person served with notice may "object" to the petition. The person may file a written objection before the hearing or appear at the hearing to raise the objection verbally.
Lawyer for the respondent
Utah law requires that the respondent be represented by a lawyer. The respondent may choose a lawyer, or the petitioner may ask the court to appoint one. The court may need to continue the hearing until the respondent has a lawyer. The respondent will usually have to pay for the lawyer unless the petition is without merit. There are some programs for free or reduced-cost legal services, but they are very limited. For more information, see our page on Finding Legal Help.
The respondent's lawyer represents the respondent in the traditional sense as an advocate, not as a guardian ad litem. The judge may also appoint a guardian ad litem, who will represent the respondent's best interests.
Examination of the respondent
The court may direct that the respondent be examined by a physician. The petitioner, respondent or any interested person may request that the respondent be examined.
Court visitor
Utah law requires the respondent to attend the hearing. If it is proposed that the respondent be excused from attending the hearing, the court must appoint a court visitor to investigate the ability of the respondent to appear unless there is clear and convincing evidence from a physician that the respondent has fourth stage Alzheimer's disease, extended coma, or an intellectual disability with an intelligence quotient score under 25.
A visitor is a special appointee of the court with no personal interest in the proceedings. The petitioner, respondent or any interested person may request that a visitor be appointed. The court may appoint a visitor on its own initiative.
For more information about court visitors and volunteering to serve as a court visitor, see our page on Volunteer Court Visitors.
Mediation
If someone objects, the court might require the parties to mediate their dispute before proceeding to trial. For more information, see our page on Alternative Dispute Resolution In Probate.
Hearing
The court will set a date for a hearing when the petition is filed. This hearing is not a trial with testimony by witnesses, although the judge may ask questions. The judge will consider:
- whether the petitioner has the necessary claims and proof;
- whether proper notice of the petition and hearing has been given;
- whether the respondent is present or has been excused from attending the hearing;
- whether there is a need to appoint a court visitor;
- whether there is a need to appoint a lawyer to represent the respondent;
- whether the necessary documents have been filed;
- whether the proposed guardian is willing to serve;
- whether the proposed guardian is required to take the guardianship test and file the declaration of completion of testing; and
- whether there are any objections.
Unless someone objects to the petition, the judge will appoint the guardian at the hearing. If there is an objection, the case will be referred to mediation or set for trial at which the petitioner will have to prove the claims made in the petition.
For more information about how to present yourself at the hearing, see our page on Going to Court.
Evidence of incapacity
The petitioner must prove that the respondent is incapacitated by clear and convincing evidence. That means the evidence must leave no serious doubt that the respondent's ability to:
- receive and evaluate information; or
- make and communicate decisions; or
- provide for necessities such as food, shelter, clothing, health care, or safety
is impaired to the extent that s/he lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care.
Even if no one objects to the appointment of the guardian, the petitioner must prove incapacity by clear and convincing evidence. The petitioner should include with the petition (or file before the hearing) affidavits or statements showing clear and convincing evidence of incapacity. Examples include statements of any witnesses who are familiar with the respondent and/or evaluations by respondent's physician.
The judge may ask the petitioner to proffer clear and convincing evidence that the respondent is incapacitated. Proffering evidence means that the party can tell the judge in narrative form the facts showing incapacity. If someone objects and the case goes to trial, the petitioner will have to present testimony or other clear and convincing evidence of incapacity.
Evidence of need for authority
The petitioner must also present evidence about what authority the guardian should have. For a description of what authority the guardian might need, see the section on Guardian's authority. The petitioner must present evidence that the guardian's authority to make decisions in specific areas is necessary or desirable as a means of providing continuing care and supervision for the respondent. The court's order will limit the guardian's authority to these areas.
If the petitioner is seeking plenary or full authority, the petitioner must prove that no alternative exists and that nothing less than a full guardianship is adequate.
Pre-appointment test
Rule 6-501 requires that, before a person can be appointed as guardian, the person must take a test about their authority and responsibilities and file a Certificate of Completion with the court. The law does not require a test for a professional guardian or a parent appointed as guardian of their adult child.
The test is not meant to screen anyone out of their role as guardian; it is meant to reinforce some of the responsibilities of the office. It is permitted to complete the test before appointment and file the form with the petition.
For more information and forms, see our page on Guardianship and Conservatorship Pre-appointment Tests.
Order and letter of guardianship
If the court is satisfied that the respondent is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the respondent, the court will appoint a guardian. The guardian's authority will be limited unless nothing less than a full guardianship is adequate. The court's order will include the guardian's authority, and the letter of guardianship will conform to the order.
The letter shows the guardian's authority to make decisions for the protected person. The guardian will need to provide a copy of the letter to third parties, for example, the protected person's healthcare provider. The guardian should have the court certify at least one copy of the letter. Additional certified copies are available upon request and payment of the required fee.
Temporary guardian
The court may appoint a temporary guardian if:
- an emergency exists; and
- the respondent's welfare requires immediate action; and
- the respondent has no guardian or the guardian is not effectively performing their duties.
The appointment of a temporary guardian is not a determination of the respondent's incapacity. The appointment of a temporary guardian can be without notice to anyone. The order will designate a period of days (not to exceed 30 days) during which the temporary guardian has authority to make decisions on the respondent's behalf. The order might limit the areas in which the temporary guardian can make decisions.
Within 5 days after the order, the court must hold a hearing and begin the process to determine the respondent's incapacity. For a description of the regular procedures for appointing a guardian, see the section on Procedure for appointing a guardian.
The temporary guardian is responsible for the respondent's care and custody and must not permit the respondent to be removed from Utah. The authority of any previously appointed guardian is suspended so long as a temporary guardian has authority.
Protected person's rights
The protected person retains any rights not granted to the guardian. For more information, see our page on Guidelines for Guardians and Conservators.
Guidelines for guardians and conservators
For more information about the guardian's liability and responsibility, see our page on Guidelines for Guardians and Conservators.
Forms
Some forms may not apply in all cases.
Forms to appoint a guardian for an adult
- Checklist -
PDF |
Word - Coversheet -
PDF |
Word
- Petition to Appoint a Guardian for an Adult -
PDF |
Word
- Schedule A - people who must be served with the petition and notice of hearing -
PDF |
Word
- Notice of Hearing, Rights and Adverse Consequences of a Guardianship (Notice to the Respondent) -
PDF |
Word
- Notice of Hearing, Rights and Adverse Consequences of a Guardianship (Notice to Interested Persons) -
PDF |
Word
- Proof of Service
- Witness Affidavit -
PDF |
Word
- Report on Clinical Evaluation -
PDF |
Word
- Physician's Statement Supporting Request to Excuse Respondent from the Hearing -
PDF |
Word
- Proposed Findings of Fact and Conclusions of Law -
PDF |
Word
- Proposed Order Appointing Guardian for an Adult -
PDF |
Word
- Notice of Order -
PDF |
Word
- Forms for Guardianship and Conservatorship Pre-appointment Test
- Acceptance of Appointment -
PDF |
Word
- Letter of Limited Guardianship -
PDF |
Word
- Letter of Full Guardianship -
PDF |
Word
Forms to appoint an attorney to represent the respondent
- Checklist -
PDF |
Word
- Request to Appoint an Attorney to Represent the Respondent -
PDF |
Word
- Order Appointing an Attorney to Represent the Respondent -
PDF |
Word
Forms to assign a court visitor
- Checklist -
PDF |
Word
- Request to Assign a Court Visitor -
PDF |
Word
- Order Assigning Court Visitor to Report on Request to Excuse Respondent from the Hearing-
PDF |
Word
- Order Assigning Court Visitor to Report on the Well Being-
PDF |
Word
- Order Assigning Court Visitor to Report on an Audit of Court Records-
PDF |
Word
- Order Assigning Court Visitor to Report on the Guardian's and Protected Person's Whereabouts-
PDF |
Word
Forms to appoint an examiner
- Checklist -
PDF |
Word
- Request for Order to Examine Respondent -
PDF |
Word
- Order Appointing Physician to Examine the Respondent -
PDF |
Word
- Report on Clinical Evaluation -
PDF |
Word
Forms to object to the petition
Form to nominate a guardian or conservator
Forms to appoint a temporary guardian for an adult
- Checklist -
PDF |
Word
- Coversheet -
PDF |
Word
- Petition to Appoint a Temporary Guardian for an Adult -
PDF |
Word
- Proposed Findings of Fact and Conclusions of Law -
PDF |
Word
- Proposed Order Appointing a Temporary Guardian for an Adult -
PDF |
Word
- Acceptance of Appointment -
PDF |
Word
- Letter of Temporary Guardianship -
PDF |
Word
- Notice of Hearing -
PDF |
Word
Court Visitor Report Forms
- Report on Request to Excuse Respondent from the Hearing under Section 75-5-303 -
PDF |
Word
- Report on the Protected Person's Well-being -
PDF |
Word
- Report on Auditing Court Records -
PDF |
Word
- Report on Guardian's and Protected Person's Whereabouts -
PDF |
Word
Related Information
- Dictionary of Legal and Medical Terms
- Fees
- Fee Waiver
- Filing Procedures
- Finding Legal Help
- Free Legal Clinics
- Going to Court
- Guardianship and Conservatorship Directory
- Mediation
- Rule 6-501
- Rules of Civil Procedure
- Serving Papers
- Guardianship of a minor
- Statutes
- Making Medical Decisions for Someone Else: A How-to Guide (americanbar.org)
- Volunteer Court Visitor