Respecting the Protected Person's Rights
Consult with the protected person
As soon as possible after your appointment, you should meet with the protected person and try to explain that you are his or her guardian or conservator and your plans for managing his or her well-being and estate. 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 and courtesy.
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 about whether to:
- make or change a will or trust;
- marry or divorce;
- 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.
The extent to which the protected person can make these decisions depends on his or her 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.
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.
- 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. It is proper to read the ballot to the protected person, to drive the protected person to the polls or to post a mail-in ballot.);
- consent to commitment of the protected person to a intellectual disability facility, 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 estate funds into your account or your funds into the estate account.);
- 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. It is proper to record your name on an account or other property as the protected person's guardian or conservator.);
- sell estate 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.