Guardianship of a Minor

This page is for the appointment by the district court of an individual to serve as guardian of a minor child. Its primary focus is on procedures when everyone is agreeing and cooperating. This page does not include information or forms for litigating the appointment of a guardian.

For information about child protection by the juvenile court, see theChild Protective Orders andChild Welfare pages.

 

Definitions

Guardianship of a minor child means that a responsible adult other than the child's parent has been appointed by the court to have legal authority to make decisions concerning the minor child's life.

Aguardian is an adult, a person 18 or older, and someone other than the child's parent, who has been determined by the court to be a responsible person and who is acting in the best interests of the minor child. Once appointed by the court, a guardian is responsible for the physical care and custody of the child and for virtually all decision making, including health care, education, residence, social and other activities, and financial matters. A court order may limit the guardian's decision making authority.

Aminor child is a child under 18 who is not emancipated. Emancipation occurs by court order, marriage, or enlistment in armed forces.

Ward is a term sometimes used to describe the person who is found by the court to need the protection of a guardian. Another term used isprotected person.

Aconservator is a court-appointed person, or agency, who has the legal authority to handle the minor's estate. Very often, the court appoints at the same time a guardian and conservator for the minor. The same person may serve as both guardian and conservator. In general, if the amount of the minor's estate is $10,000 or less, then the guardian is able to handle the estate without appointment as conservator. Sometimes the court appoints only a conservator for the minor child if the child needs someone to handle financial assets for the child. A child's parent can be appointed to serve as the child's conservator if the child has financial assets that need management.

Arepresentative payee is an adult appointed through an administrative process with the Social Security Administration. Some minors receive Social Security benefits. In most cases, a court-appointed guardian or conservator must also become the minor's representative payee to handle the minor's Social Security benefits.

 

Alternatives to Guardianship

There are other possible court orders or legal methods for caring for a minor child if the parents do not have custody of the child.

Power of Attorney

Sometimes, a child may need to be in the temporary custody of someone other than their parents. A parent, or even a court-appointed guardian, may delegate their legal decision-making authority to another adult for up to six months by executing a power of attorney. This type of power of attorney is described on the Power of Attorney: Delegating a Parent's or Guardian's Powers to an Attorney-in-Fact page.

Conservatorship of a Minor Child

Utah Code section 75-5-401 permits the district court to appoint a conservator for a minor if:

  • the minor owns property that requires management or protection which cannot otherwise be provided;
  • the minor's business affairs may be jeopardized; or
  • a conservator is needed to obtain or provide funds for the minor's support and education.

Often a conservator is needed if the minor is about to receive an inheritance, government benefits, insurance or annuity benefits or damages as a result of a civil lawsuit. Sometimes a parent may need to be appointed their child's conservator. For information and forms, see our web page on conservatorship of a minor.

Juvenile Court Orders

In achild welfare proceeding, the Juvenile Court has jurisdiction to enter orders of temporary or permanent custody, guardianship, and termination of parental rights. Otherwise, custody disputes between a child's parents are heard in divorce or parentage cases in district court. See our web page on child custody.

School-Based Guardianship

A local school board may adopt a policy permitting it to designate a responsible adult residing in the school district as legal guardian of a child whose custodial parent does not reside within the state as long, as it meets the requirements according toUtah Code section 53G-6-303. If you are interested in seeking guardianship through the local school board, contact your local school district for more information.

Adoption

Sometimes the parental rights of a child's legal parents are terminated by the court or by the parents' consent to an adoption of the child. Adoption occurs only by court order and is a different proceeding than guardianship. Adoptions may occur in juvenile or district court. Sometimes a stepparent adopts a spouse's child if the child's other parent either consents to the adoption of that parent's rights are terminated. See our web page onstepparent adoption.

 

Ways to Establish Guardianship

There are several ways to establish guardianship of a minor under Utah law. These include:

  • Acceptance by the guardian of atestamentary appointment. The child's parents can nominate a guardian in their will or other written document. The guardian must submit written acceptance with the probate court and provide notice to interested persons according to law.
  • Appointment by alocal school board.
  • Appointment of a guardian in a child welfare proceeding injuvenile court.
  • District court appointment. This is the most common court proceeding to obtain a guardianship of a minor. The laws governing guardians of minors in the district court areUtah Code sections 75-5-201 through 212.

 

Nomination

The parent of a minor child can nominate a guardian or conservator for the child. To be effective, nomination of a guardian or conservator must be in a will or other signed writing. For further information and forms for this type of nomination, see theNominating a Guardian and Conservator web page.

 

Asking the Court to Establish Guardianship in District Court

Any adult interested in the minor child's welfare may file a petition in the district court in the county in Utah where the minor child resides or is present.

The petitioner is usually the person who wants to be the guardian, but the petitioner may request the appointment of some other qualified adult. The court may appoint as guardian any person (other than the child's parents) whose appointment would be in the best interests of the minor. In determining the minor's best interests, the court may consider the minor's physical, mental, moral, and emotional health needs.

A guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship of the minor child. The guardian must provide the court with a current mailing address and contact information.

To create the petition and other required forms, use OCAP (the Online Court Assistance Program).

 

Obtaining Adult Guardianship over a Minor

The process for asking to be appointed guardian of an adult (or soon-to-be adult) child is generally the same as above, with a few exceptions.

Report Required by Physician or Psychologist

A petition for guardianship must include a written report of an evaluation of the minor by a physician or psychologist acting within her or his scope of practice. The report must include:

  • a specific description of the physical, psychiatric, or psychological diagnosis of the respondent;
  • a comprehensive assessment listing any functional impairments of the respondent and an explanation of how and to what extent these functional impairments may prevent them from receiving or evaluating information in making decisions or in communicating informed decisions, with or without assistance;
  • an analysis of the tasks of daily living the respondent is capable of performing independently or with assistance;
  • a list of the medications the respondent is receiving, the dosage of the medications, and a description of the effects each medication has on their behavior;
  • a prognosis for improvement in the respondent's condition and a recommendation for the most appropriate rehabilitation plan or care plan; and
  • other information the physician or psychologist considers appropriate.

When to file

Anyone asking to be guardian of a respondent who will soon be an adult can do so if the respondent is at least 17 years and 6 months old. If the court grants the guardianship, it becomes effective on the day the respondent turns 18. Utah Code 75-5-317(2).

 

Fees

The required documents are filed at the district court. At the time of filling, the petitioner must pay the filing fee. If they cannot pay the filing fees, they may file a motion asking the court to waive the fees.

  • If the motion is granted, then they can proceed with the case.
  • If the motion is denied, they must first pay the fees before the case can proceed.

See the Fees and Fee Waiver page for more information and forms.

 

Notice - Interested Parties

Once the documents are filed, the court will typically schedule a hearing. Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor must be given to:

  • The minor if they are 14 or older;
  • The person who has had the principal care and custody of the minor during the 60 days before the petition was filed;
  • Any living parent of the minor;
  • Any guardian appointed by the will or written instrument of the parent of the minor who died last;
  • The school district in which petitioner resides, if the child is of school age. A representative of the school district may participate in the hearing.

Utah Code Section 75-1-401 governs notice in this type of court proceeding.

The court provides notice of the hearing to the parties, but the petitioner must provide the names and addresses of the interested parties to the court in the petition.

If a petitioner does not have the addresses for the interested parties who must receive notice, the petitioner may ask the court to allow for alternative service of the notice. For information and forms, see the Motion for Alternative Service page. In addition, the judge may make other orders about notice to interested parties.

 

Objecting to the petition

Any person served with notice of a guardianship petition may object. This can be done by filing a written objection before the hearing, or raising the objection at the hearing orally.  An oral objection must be followed up with a written objection within 7 days.

If an oral objection is made but there is no written objection within 7 days the petitioner can ask the court to proceed with the original petition by filing a Request to Submit for Decision.

If a party files an objection in a guardianship, conservatorship or other probate case, the parties must attend mediation to try to resolve the issues before the case can move forward. Code of Judicial Administration Rule 6-506. See the Alternative Dispute Resolution in Probate Cases web page for more information.

If an objection is filed in a guardianship, conservatorship or other probate case, the parties must share certain information with each other. See the Initial Disclosures web page for more information about the requirements.

 

Other Documents to File

If any of the following are required in a specific guardianship proceeding, the petitioner should try to file the documents along with the petition. Otherwise, the documents should be filed before the scheduled hearing. If they are not filed before the hearing, the hearing may be rescheduled or the court may not be able to appoint the guardian.

  • If the minor is 14 or older, the court shall appoint a person nominated by the minor, unless the court finds the appointment contrary to the minor's best interests. The petitioner should file the minor's written nomination or consent with the petition.
  • If the minor child's legal parents are alive and consent to the guardianship, then the petitioner should try to get the written consents from both parents.
  • If a legal parent is dead, then the petitioner should file a copy of that parent's death certificate.
  • If a legal parent's parental rights have been terminated by court order, then the petitioner should file a copy of that court order.
  • If there is some other court order that affects the custodial rights of the legal parent, then the petitioner should file a copy of that court order.
  • If the legal parent's parental rights have otherwise been suspended and the petitioner is unable to get that parent's written consent to the guardianship, then the petitioner should file a written statement or affidavit explaining the parent's circumstances to the court and attach any written evidence about the parent's circumstances.
  • If the minor is older than 11, the petitioner must obtain and file with the court a certificate from the local police authority in the jurisdiction where minor has lived during past 2 years stating that there have been no criminal charges filed against the minor and the minor is not the subject of a criminal investigation in that jurisdiction. A copy of the certificate should also be given to the superintendent of the school district in which the minor would attend school in Utah.
  • If the minor is older than 11, the petitioner should provide a release by or on behalf of the minor to the superintendent of the school district in which the minor would attend school in Utah within a reasonable time prior to the hearing allowing the superintendent full access to all criminal records of the minor in those jurisdictions outside the state where minor has resided for past 2 years.

 

Pre-appointment test

Utah Rule of Judicial Administration 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 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 the Guardianship and Conservatorship Pre-appointment Tests page.

 

Hearing

Typically, 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 petitioner, proposed guardian (if different from the petitioner), and the minor child should attend the scheduled hearing. At the hearing, the court determines whether:

  • A qualified person seeks appointment as guardian;
  • The person seeking guardianship has completed, if necessary, the test and filed certification of completion;
  • Venue is proper because the case is in the county in Utah where the minor resides or is present;
  • Required notices have been sent or waived;
  • Parental rights of custody have been terminated or suspended by circumstances or prior court order;
  • The appointment of a guardian is in the best interests of the minor child;
  • If minor is 14 or older, the minor has consented to or nominated the guardian;
  • The required school certifications (for children older than 11) have been filed; and
  • Whether there are any objections to the guardianship.

Unless someone objects to the petition, the judge will appoint the guardian at the hearing. If there is an objection, the case may be referred to mediation or set for trial at which the petitioner will have to prove the claims made in the petition.

The court also has the authority to:

  • dismiss proceedings and make any other disposition of the matter that best serves the interests of the minor;
  • appoint a temporary guardian whose authority may not last longer than 6 months; or
  • appoint an attorney to represent the minor.

The court could deny the appointment of a guardian for a minor 11 or older if:

  • after consideration of relevant evidence, the minor's behavior indicates an ongoing unwillingness to abide by applicable law or school rules; or
  • the school district proves that the main reason for the request to appoint a guardian is to avoid paying the tuition the school district may assess against a non-resident. The court may award the petitioner's attorney fees and costs if the court finds that the school district's arguments lack a reasonable basis in law or fact.

For more information about how to represent yourself at the hearing, see our page on Going to Court.

 

Attorney for the Minor

The judge may appoint an attorney to represent the minor if at any time s/he determines that the interests of the minor child are, or may be, inadequately represented. In such proceedings, the court may give consideration to the preference of the minor if the minor is 14 or older.

 

Order and Letter of Guardianship

If the judge finds that the welfare and best interests of the minor will be served by the guardianship, s/he will sign a court order appointing a guardian. The court's order will describe the guardian's authority and any limitations.

The court will also issue a letter of guardianship, which shows the guardian's authority to make decisions for the minor. The guardian will need to provide a copy of the letter to third parties, such as the minor's school or 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.

 

Private Information Record

Within seven days after the court enters the order of appointment, the guardian must file a Required Private Information Record form with the court. It is best to file the Required Private Information Record at the time of the hearing on the petition. The form asks for contact and other information about the guardian and the minor, contact information for the guardian's next of kin, and school information for the minor.

The guardian must make sure the court always has the guardian's current contact information. The guardian may call the court that handled the guardianship case to notify it about any changes, or may file an updated Private Information Record with the court.

The form is available in the Forms section

 

Responsibilities of the Guardian

A guardian has the following duties and responsibilities, unless they are limited by court order:

  • All powers of a parent, including the authority to facilitate education, social, other activities and authorize medical or other professional care, treatment, or advice;
  • Provide for the care, comfort, and maintenance of the minor;
  • Consent to marriage if court authorized to do so;
  • Consent to adoption, but only if specifically authorized by the court to give this consent and the parents' rights have not been terminated. Otherwise, if a parent consents to the adoption of the minor child, the guardian must receive notice and has the ability to intervene in the adoption; and
  • Handle financial and legal matters for the benefit of the minor.

A guardian is not liable for the minor's finances and may not use the minor's money for compensation unless the court approves.

The guardianship status continues until the guardianship is terminated or the guardian isremoved or resigns.

 

Reporting Requirements

Inventory

A newly-appointed guardian must file with the court an inventory report with the court within 90 days of being appointed. This report must be served on allinterested parties.

Annual Status Report and Financial Accounting Report

Each year on the anniversary of being appointed guardian, the guardian must file with the court an annual report on the condition of the minor (annual status report) and the minor's finances (financial accounting report). These reports must be filed within 60 days of the anniversary of appointment and must be served on all interested parties.

Final Accounting Report

If the guardianship is terminated, the guardian must file with the court a final accounting report.

Deadlines

The deadlines for the reports are:

Document

Due Date

Inventory

Within 90 days of the appointment.

Annual Status Report and Financial Accounting Report

Within 60 days of each anniversary of the appointment.

Objection to Annual Status Report and/or Financial Accounting Report

Within 30 days after reports and notice of right to object are served.

Final Accounting Report

Upon resignation or removal of the guardianship or upon termination of the guardianship.

The documents must be filed with the court that made the appointment unless there has been a change of venue. The guardian must serve a copy of the inventory and accounting, along with a notice of right to object, on:

  • the minor (if s/he is of an appropriate age and mental capacity to understand the proceedings);
  • the minor's conservator (if the court has appointed one other than the guardian);
  • anyone requesting notice under Utah CodeSection 75-5-406.
  • all interested parties including the minor's parents.

Code of Judicial AdministrationRule 6-501.

The guardian may serve the documents by mail, email or hand delivery. If anyone objects to the filing or if the judge has further questions, court staff will schedule a hearing and notify all parties. Code of Judicial AdministrationRule 6-501.

Changing the content, or reporting period or the frequency of the annual reports

The guardian may ask the court to change the information included in the annual reports and/or the frequency of the reports, including changing reporting period, such as to a calendar year or any other 12-month period that is more convenient. If a request to change the reporting period is granted, the year in which the change is made the guardian will report for a shorter period of time. For example, if the guardian is appointed on August 17, and s/he has received the court's permission to report on a calendar year basis, the next report would cover the period from August 17 to the end of the calendar year. Subsequent reports would cover the calendar year.

Use the Motion to Change Accounting Report Requirements in theForms section to ask to change the reporting requirements.

 

Rights and Responsibilities of Parents

The appointment of a guardian does not terminate a parent's rights. The legal parents of the minor retain some rights and responsibilities even if the court has ordered someone else to be the child's guardian.

  • Parents remain responsible for the support of their child
  • Parents retain the right to consent to adoption
  • Parent retain the right to determine the child's religious affiliation
  • Parents retain the right to reasonable parent-time unless restricted by the court.

"Residual parental rights and duties" as used in this context is defined inUtah Code section 78A-6-105.

 

Ending a Guardianship

A guardianship can be ended in several ways, including:

  • The minor turns 18
  • The minor is adopted
  • The minor marries
  • The minor has been emancipated by the court
  • The minor dies
  • The guardian resigns, with approval of the court
  • The guardian dies
    If the guardian dies while the child is still a minor, a new guardian must be appointed. The proposed new guardian should follow the procedure described in the
  • Asking the Court to Establish Guardianship in District Court section of this page.
  • A parent asks to terminate the guardianship as explained below

Regardless of the reason a guardianship has ended, the guardian (or someone else, if the guardian has died) must file therequired final report with the court.

Forms are on the Motion to Review or Terminate (End) the Guardianship or Conservatorship or to Remove the Guardianship or Conservator page.

 

Request to Remove a Guardian

The court may remove a guardian upon a request by:

  • a parent, unless parental rights were terminated or some other court order prohibits restoration of custody to parent.
    • The Utah Court of Appeals has found that a parent's consent to the appointment of a guardian for that parent's minor child is only a suspension of the parent's custody by circumstances.
    • If the parent later petitions for termination of the guardianship, the court must grant the petition unless there has been a final factual determination depriving the parent of custody or termination of parental rights by a court with proper jurisdiction. In Re V.K.S., 63 P.3d 1284, 2003 UT App 13 (2003).
    • A parent can use the Motion to Terminate forms below to ask the court to remove a guardian.
  • some other person interested in the minor child's welfare
    • Anyone interested in the child's welfare may file a motion asking the court to remove the guardian. The court may order the removal and appoint a successor guardian if it is in the child's best interests to do so. There are no approved forms for this particular motion. Information and general motion forms are available on the Motions web page.

If a guardian has been removed by the court, the guardian must file the required final report with the court.

Forms are on the Motion to Review or Terminate (End) the Guardianship or Conservatorship or to Remove the Guardianship or Conservator page.

 

Forms

Asking to Appoint a Guardian for a Minor

Forms to object to the petition

  • 1205GU

Going to trial

  • 1251GE
  • 1260GE

Inventory report

or

  • Checklist for Inventory Forms - PDF | Word
  • 1172XX
  • Schedule A - PDF | Word
  • Schedule B - PDF | Word
  • Schedule C - PDF | Word
  • Schedule D - PDF | Word
  • Schedule E - PDF | Word
  • Schedule F - PDF | Word
  • 1175XX
  • 1200XX
    (Required if there are interested persons who must be served with a copy of the Inventory)
  • 1800.9GU

Annual status report

  • Annual Status Report (using OCAP) (select Prepare Annual Report underGuardian and Conservatorships)

or

  • 1201XX
  • 1199XX
    (Required if there are interested persons who must be served with a copy of the Status Report)
  • 1200XX
    (Required if there are interested persons who must be served with a copy of the Status Report)
  • 1800.9GU

Financial accounting report

Motion to terminate the guardianship or remove guardian

Forms are on the Motion to Review or Terminate (End) the Guardianship or Conservatorship or to Remove the Guardianship or Conservator page.

Motion to change reporting period

  • Motion to Change Accounting Report Requirements - PDF | Word
  • Notice of Right to Object to Motion to Change Accounting Report Requirements - PDF | Word
  • Findings of Fact, Conclusions of Law, and Order on Motion to Change Accounting Report Requirements - PDF | Word
  • 1167XX

 

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