Elder Law - Guardianship

A guardianship may become necessary when a person is incapacitated.

As defined by the Utah Probate Code, an "incapacitated person" means any person Signing Document who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions."

In addition, the Utah Supreme Court held In re Boyer, 636 P.2d 1085, 1089 (Utah 1982) that if the ward is unable to make "responsible decisions" , it means that the ward's decision-making process is so impaired that he/she is unable to care for his/her personal safety or unable to attend to and provide for such necessities as food, shelter, clothing, and medical care, without which physical injury or illness may occur.

To establish a guardianship, a Petition is filed with the Court and notice must be given to all interested persons. Interested persons would include a spouse and the children of the alleged incapacitated person. Also, an attorney must be appointed to represent the alleged incapacitated person. Upon clear and convincing evidence, the Court may then appoint a guardian for the incapacitated person, although the appointment may be limited in some way to allow the person to have as much freedom of choice as is reasonably possible.

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