The Protected Person's Rights

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Introduction

This page has information for:

 

If you have a case filed against you that says you are incapacitated and need a guardian

You can find information about:

If someone files a case against you saying you are incapacitated (unable to care for yourself) and asking the court to order a guardian for you, you have the right to:

  • be represented by a lawyer before the court orders a guardian for you, and have the lawyer represent you during the guardianship case;
  • receive copies of all documents filed in the case;
  • have a relative, a physician, or any interested person speak about or raise any issue of concern on your behalf during the case;
  • receive information about guardianships from the court; and
  • be treated with respect and dignity.

Utah Code 75-5-301.5

If you have a guardian appointed by the court, you have the right to:

  • have an attorney represent you at any time after the guardian is appointed;
  • have a relative, a physician, or any interested person speak about or raise any issue of concern on your behalf in any court hearing about the guardianship;
  • receive a copy of all documents filed in court regarding the guardianship;
  • receive information about guardianships from the court;
  • ask questions and express concerns or complaints about a guardian and the actions of a guardian to the court;
  • participate in developing an individualized plan for your care, including: managing your assets and property; determining your residence; and determining the services you will receive;
  • be given consideration in regards to your current and previously stated desires, preferences for health care and medical treatment, and religious and moral beliefs;
  • remain as independent as possible, including having the guardian consider your wishes as to where you live and your standard of living;
  • be granted the greatest degree of freedom possible that is consistent with the reasons for the guardianship;
  • be able to exercise control over all aspects of your life that are not granted to the guardian;
  • engage in any activity that the court has not expressly reserved for the guardian, including marriage or domestic partnership, traveling, working, or having a driver license;
  • be treated with respect and dignity;
  • be treated fairly by the guardian;
  • maintain privacy and confidentiality in personal matters;
  • receive telephone calls and personal mail and associate with relatives and acquaintances unless the guardian and the court determine that the association should be restricted or prohibited underUtah Code 75-5-312.5;
  • receive timely, effective, and appropriate health care and medical treatment that does not violate your rights;
  • have all services provided by a guardian at a reasonable rate of compensation;
  • have a court review any request for payment by a guardian to avoid excessive or unnecessary fees or duplicative billing;
  • receive prudent financial management of your property;
  • receive a copy of every accounting report regarding your property that the guardian or conservator, if you have one, files with the court;
  • receive and control your salary;
  • maintain a bank account and manage your personal money; and
  • ask the court to: review the management activity of a guardian if a dispute cannot be resolved regarding the guardian's management; continue to review the need for a guardianship or to modify or terminate (end) the guardianship; and enter an order ending the guardianship at the earliest possible time if you are no longer incapacitaded.

Utah Code 75-5-301.5

You keep any decision making authority not given to your guardian or conservator. This includes decisions about your religion, friends, whether to consume legal substances, whether to marry or divorce, and other decisions. Even if you are under a full guardianship or conservatorship, you still have the right to make decisions about whether to:

  • make or change a will or trust;
  • marry or divorce;
  • vote;
  • practice religion;
  • send and receive mail, email and telephone calls;
  • keep personal relationships with family and friends;
  • be represented by a lawyer;
  • control personal spending money;
  • consume legal substances;
  • ask the court to end the guardianship or conservatorship; and
  • ask the court to change the guardian or conservator or to change their authority.

A question that could come up is whether or not you have legal capacity to make these decisions. Any will must reflect your wishes for distribution of your property, must be signed voluntarily, and must follow the requirements for making a will.

If you think your guardian is violating your rights you can:

  • Ask for a court visitor. A court visitor is someone appointed by the court to look into your situation. You can read more and find a form to request a court visitor on theCourt Visitor Program page.
  • Ask the court to review the decisions of the guardian, terminate the guardianship, or remove the guardian. You can simply write a letter to the court. If you want to use court forms and learn more, see our Motion to Review, Terminate, or Remove Guardian page.
  • File a motion to enforce the guardianship order or to ask for penalties against the guardian or conservator. This could be used if the guardian violates your rights to associate with other people. See our page onMotion to Enforce Order for forms and information.

Get legal help. See our page onFinding Legal Help for more information.

 

If you have guardianship or conservatorship over someone else

This information provides a general overview of your rights, responsibilities, and limitations as a guardian or conservator. Please visit our Guardian and Conservatorship information page for adults and click "Requirements of a Guardian or Conservator" and "Serving as a Guardian or Conservator" for more information.

 

Consult with the protected person

As soon as possible after your appointment, you should meet with the protected person to explain that you are his or her guardian or conservator and your plans for managing his or her well-being and property. You should respect as much as possible the protected person's independence. You should limit what you do for the protected person to what the protected person cannot do for himself or herself. You should be guided in your decisions by what the protected person would do, unless that would cause harm.

A guardian and conservator may need to make decisions for the protected person, but the protected person should, to the extent possible, be consulted, participate in the decision making process, make suggestions, and express concerns, wishes, values and preferences. This approach recognizes the protected person's independence and dignity and encourages the protected person's maximum self-reliance. You should treat the protected person with honesty, respect, dignity and courtesy.

 

Protected person's retained decision-making authority

The protected person retains decision-making authority not given to the guardian or conservator, including decisions about his or her religion, friends, whether to consume legal substances, whether to marry or divorce, and other decisions. Depending on what areas of authority are granted to the guardian and conservator, the protected person might continue to run a business, hire advisers and caregivers, make healthcare decisions or choose where to live.

Even while under a full guardianship or conservatorship, the protected person still has decision-making authority. Scoll up on this page and click "Your rights if someone is appointed by the court to be your guardian" to see the rights a protected person retains. In addition to those rights, the protected persion also retains powers to: 

  • make or change a will or trust;
  • divorce;
  • vote;
  • practice religion;
  • send and receive personal email;
  • keep personal relationships with family and friends;
  • control personal spending money;
  • consume legal substances.

The extent to which the protected person can make these decisions depends on her or his capacity. For example, the protected person may be able to make a will or revise an earlier will if the protected person is aware of his or her property and close relatives and friends and that the document being prepared is a will. As with any will, the protected person's will must reflect his or her wishes for distribution of the property, must be signed voluntarily, and must follow the procedural formalities required for making a will. A protected person's will signed while under guardianship might be challenged upon the death of the person on the basis of lack of capacity or undue influence. It will be up to the judge in the probate proceeding to determine whether the will is valid.

 

Confidentiality

You should honor the protected person's privacy. You will learn a lot about the protected person, including information about his or her behavior and financial and medical information. You should not discuss what you know about the protected person with others, unless that is what the protected person would do.

For example, you would discuss a medical condition with the protected person's caregiver. Perhaps the protected person would normally discuss his or her financial or health circumstances with a spouse, but not extended family. You must decide how much you can tell others about the protected person: enough to keep them involved, but not the details that the protected person would want kept private.

 

A guardian or conservator may not:

  • restrict the protected person's physical liberty, communications or social activities more than reasonably necessary to protect the protected person or others from harm. For example, you may not prohibit the protected person from seeing whom s/he wants, and you may not restrict the protected person's incoming or outgoing mail, email, other electronic communications, and telephone calls, unless the court has specifically ordered a restriction on the protected person's association with a relative, friend or clergy. Utah Code Section 75-5-312.5. If a guardian does this, the protected person, their relative, or a qualified acquaintance of the protected person may file an ex parte motion to enforce the guardianship order or to obtain sanctions. See our Motion to Enforce Order page for more information.
  • punish the protected person physically, mentally or emotionally;
  • leave the protected person unattended if s/he needs care;
  • neglect healthcare for the protected person;
  • abandon or fail to provide care for the protected person because the protected person has run out of money;
  • decide the protected person's religious or political preference;
  • cast the protected person's ballot in an election (For example, you may not mark a ballot for the protected person or tell the protected person how to vote. You can read the ballot to the protected person, drive the protected person to the polls or post a mail-in ballot.);
  • consent to commitment of the protected person to an intermediate facility for people with an intellectual disability intellectual disability, but must petition the court for an order under Utah Code Section 62A-5-312;
  • consent to commitment of the protected person to an intellectual disability facility, but must petition the court for an order under Utah Code Section 62A-15-628;
  • consent to sterilization of the protected person, but must petition the court for an order under Title 62A, Chapter 6, Sterilization of Handicapped Person;
  • consent to termination of the parental rights in the protected person or of the protected person's parental rights in another, but must petition the juvenile court for an order to terminate parental rights under Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act;
  • borrow money or property from the protected person's estate;
  • mix your (or anyone else's) personal or business money and property with those of the protected person (For example, do not deposit their property into your account or your funds into the an account containing their property.);
  • pay personal expenses from the estate (For example, do not use the protected person's money to pay your personal or business expenses.);
  • record your name on the protected person's property as though you own the property (For example, do not record your name on the protected person's bank account as if you owned the account. You can record your name on an account or other property as the protected person's guardian or conservator.);
  • sell their property for less than fair market value (For example, do not sell the property to family members at reduced prices.); or
  • write a will for the protected person or change a previous will.
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