BjbjqPqP Guardianship of an Adult Basics Tutorial Transcription TantaLisa Clayton What I m going to talk about, first of all, are just terms, because there s so many different terms floating out there in the air and what different things and basically, for a long time, kind of talk about why a guardianship should be something that you do as a last resort and then we ll talk about how you go about obtaining a guardianship and how that all works. But before that, to just kind of talk about some alternatives and why you want to sort of pursue those alternatives.
Before you actually try to obtain a guardianship. A guardian is a person or institution appointed by a court to make decisions about the care of another. And that person is called a ward. If a guardianship is appointed, the person that you are guardian over is called the ward. Okay A conservator is a person or an institution appointed by the court to manage the property and financial affairs of a ward. So the guardian is kind of over the person, the conservator is over the finances. And there s all sorts of permutations in between. You know, one.
Person can be both the guardian and conservator, you can have a different person or organization as a guardian andor conservator, and just a conservator can be appointed, you know, or a guardian and a conservator, just depends on what the person needs. If a full guardianship is granted, it s a very serious thing not to be taken lightly. Basically, it s society s most extreme intervention. The person, the ward, the incapacitated person, basically all their rights have been taken away. So it s a serious deprivation of their personal.
Guardianship of an Adult Basics
Freedoms and rights. It restricts their selfdetermination, it restricts the freedom to choose, the freedom to risk, so it should always be used as a last resort and there are many other kinds of things that we re going to talk about today that you can do before, you know, you need a guardian, if you ever do need a guardian. And there may be many circumstances where you can do things in advance where you may never need a guardian. So it s a very serious thing and people s rights are taken away and, you know, it s not something to be taken lightly.
If someone s trying to get a guardianship or conservatorship over you, you know, you want to know that they have to do a lot and you have a lot of protections before that can happen and we ll talk about those. So it s kind of this, I guess, a doubleedged sword of you re trying to protect this person that may need protection, that may have some disabilities or issues versus really what we all want. I always look at it as what if it were me, what would I want, you know, people to do for me or the courts to do for me, versus.
Autonomy your ability to live, you know, your life the way you want to live it and so the rights that you have, you know, as an individual right now. To vote, to decide where you live, to decide, you know, what you want to eat versus, you know, needs that you may have based on various disabilities, you know, that you have. So, once again, a guardianship, it can, I m just going to give you the real negative aspects of it, worst, you know, first. It can be, going through the process and we ll try to make this less intimidating, but.
It can be intimidating and confusing. It is a court process so you are going through the courts and that kind of can be confusing too. And sometimes there s stigmatism attached to it. It can be expensive if the parties are, if family members are maybe fighting over who should be a guardian so it can use up the resources of the person that needs the resources, you know, so those are some things to think about before one starts this process. Sometimes there might be like a triggering event, you know, when you, inaudible it.
Was really good that you shared and I appreciate, because some of the events of someone coming to live with you or someone may have had a stroke or incident that then there s a change in circumstances and, you know, you need to know what you need to do, what your options are. Sometimes that triggering event might be brought to your attention by a third party, like the hospital. If someone has been in the hospital and they may say, come to you and say, you know, we really need, I think this person needs more protection than they.
Re getting now. Or a nursing home. If someone s in a nursing home they may be coming to you. Maybe another family member. Maybe you haven t been spending time with that person but another family member is and say, look, you know, they really need a guardian. Or a case worker that might be involved. So that there s all these third parties coming up and saying this person may need help. But like I say, there s a lot of confusing terms here that we re going to go over now where people just throw out these terms, you want.
To be very clear what different alternatives are other than a guardianship and a conservatorship. So before, we go to that drastic measure of really taking away that person s rights, are there less restrictive alternatives And yes there are. And what some of those are for financial issues, rather than the conservator would be over the finances of a person, that s the courtappointed, but that s, once again, restrictive. So less restrictive alternatives that someone can do while they re still able, while they still understand what s going on,.
Is a power of attorney. And a financial power of attorney is a document that simply gives a person power or authority to do something for another person. For instance, you can use a power of attorney to give your son or your daughter the authority to write checks for you or to sell your property. And you can decide how much authority that you give. So you re the person giving that authority and that power, you re called the principal and the person you give that authority to is called an agent. A simple example of that.
Is like a real estate agent. You know, as a real estate agent, you sign a contract with them, you re the principal and they re the agent and that s a limited power of attorney. You re giving that agent the authority to sell a specific house for, probably, a certain period of time, sixty days, ninety days. So it s something that you do. And a lot of times people will say, somebody has a power of attorney over me. Well, no. No. No one has a power of attorney over you. You give someone that power, okay When you re competent, when you.
Re able, only you can say, I give to you, the real estate agent, you know, the power to sell my house. And you can revoke that power if you want to, so really at any time. So don t let someone threaten you or say, you gave me this power of attorney, I can do this. That s not true, no they can t. You can revoke that power if you re competent, you can revoke that power at any time and say no, you no longer have the authority to.
Have that power. So it s a tool that can be misused but it s also a very good tool because a power of attorney can be durable, meaning it can be effective in the event that you become disabled. So, in essence, if you execute what s called a durable power of attorney, meaning it can be effective immediately when you sign it or it can be effective only in the event of your disability, that s called like a springing power of attorney. And so what you re doing is you re giving advanced authority to someone to be able to do the.
Things that you said in this power of attorney in the future. And a financial power of attorney can be very broad, you know, it can say this person, like if you execute a durable, springing financial power of attorney, you can say this person has the authority to do, and list them very specifically, all these things only in the event that I become disabled. And in that document, in that springing power of attorney, you can define what disability is. And usually it s saying two doctors have to say, you know, I no longer have the capacity and so now this.
Person has the authority to act under the power of attorney. So that can be a very good tool where somebody can prepare it now, you know, if they have the capacity. And capacity, there s different capacities for different kinds of things. But for a financial power of attorney, you know, they need to know what they own, right. I mean, do they own a house Is the house worth $1 million or $50,000 And if they don t know that and if they don t remember it next week or three weeks from now, then they probably no longer have that.
Capacity to execute that power of attorney and if they ve never executed one and there s things that need to happen with their property, then maybe that s when you need to look at a guardianship. But if people can do that beforehand, then they get the person that they trust and they can say here s the person that I want to do these things. Other financial alternatives that you can do in advance and some of these things all have pros and cons and people can always misuse these tools but you can have joint accounts, like a joint.
Checking account. Those, I put a big caveat on those because those are often misused, but it is something where then if there s a joint account with a second person, then even if, you know, someone, you become incapacitated, the person can use your checking account. They can also misuse that money so there s a downside to that. There s something called a representative payee and if someone receives, like, Social Security benefits or the Veteran s Administration you receive, you know, like a pension from the VA, you have to go through.
A separate process other than the courts here to get a guardianship and a conservatorship. And they have, VA and Social Security, each has a separate process where if the person that they re paying is not receiving that, you have to be appointed as the representative payee. So that s also available. Because if they re incapacitated now and they can t really handle their money, then you need to go to Social Security and you don t need a guardian and a conservator you can just be appointed the representative payee that you receive.
The funds on their behalf. As their agent, you have to use it for their benefit. The other, another mechanism that can be established is a trust. And a trust is just a legal document, they re very flexible, there s all kinds of trusts, trusts are set up for all kinds of reasons. You know, money can be put in a trust and then governed by what that trust says and there s generally a trustee that has a responsibility for investing funds and distributing assets. So that s another alternative to a guardian and conservator. There s also alternatives.
For health care. These were kind of all for financial. Utah now, since 2008, has a document called the Utah Advanced Health Care directive, okay And that form contains a health care power of attorney where in the event you become incapacitated, you can name, you know, now, when you sign this document now, you can name an agent or somebody to make health care decisions for you in the event that you can no longer speak for yourself. This document also contains the form for the living will, which is the document where you tell health care providers.
What lifesustaining treatment you want or do not want in the event that you become incapacitated. This form is a statutory form, you don t need an attorney to execute it, it can be found on the website. It s not on this one but you can go to the Utah State website and look at the Division of Aging and Adult Services and click on to that and it has the forms, you can pull down the forms and instructions. Division of Aging and Adult Services, it s part of Human Services. So if you can go to, like, utah.gov, and, then you just look at,.
You know, different agencies. Human Services, the Division of Aging and Adult Services. And you can pull that form down and there s instructions, you don t need an attorney to do it, you don t need a notary. It does need to be witnessed by a disinterested witness meaning, you know, not a family member, not the doctor, not anybody that s going, you know, just a disinterested person. So that s another sort of what we call an advanced directive something somebody can do now when you have the capacity so that you re telling.
People now that in the future, I want these things. I want this kind of health care, I want these people to be handling my finances. In the advanced health care directive, you can name, if you choose to do so, who you would like in the event that you become incapacitated, to be your guardian. And the court will give preference to that person. And that s an important thing to know because sometimes, when someone becomes incapacitated, there s lots of sort of bickering among family members and control issues and so, all of a sudden, maybe the.
Notgood person has sort of taken control of Mom or Dad and Mom or Dad really wanted somebody else. So if you can do that, if Mom or Dad did that when they were fine to say, I want daughter Mary Jane to be my guardian , you know, then the courts are going to look at that and give Mary Jane preference to be guardian, maybe not the person that s taking care of them now. You know, and the court is going to look at all factors to make sure.
That person is the right person and competent but, you know, if there s just two siblings fighting and they all look pretty good but Mom has already said I want Mary Jane then the court is going to go with Mary Jane. So that s a tool that you all can have now to say here s who I want, here s who I want in advance. So you can name who you want to take care, you know, to make health care decisions for you, yeah inaudible question ll talk,.
That s kind of at the very end, yeah, because it s, it s a really good tool and we ll talk about that. So you can have, you can name people to take care of your health care in advance, you can name people to take care of your finances in advance, so you may not need a guardian when you become incapacitated because you ve named these people to do these things unless there s some sort of decision that wasn t given in these powers of attorney and maybe whoever you named as an agent might be abusive and so, that needs, you know, you.
Need somebody else. Yeah, this all happens, right We know. So I just wanted you to look at before you go with a guardian, think about these other tools that are available, that are good tools but they have to be used right like any tool or they can be misused. But they re there. But the other thing you need to look at that s really a biggie is really is there lack of capacity Does that person really need a guardian and conservator And this is, sometimes it s very clear and then there s a whole spectrum, you know, of capacity.
Issues. Utah code defines an incapacitated person, means, any person 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 so not if somebody s under 18, that s not what they re talking about here, and to the extent lacking sufficient understanding or capacity to make or communicate responsible decisions. And so the things we need to look at is medical conditions, mental conditions, functional issues, risk of harm to themselves or others, depending. So some things capacity is not. Just because somebody.
Is old doesn t mean they need a guardian or conservator, okay We all hopefully maybe know a 95yearold that has as much energy and is spry, so, you know, so chronological age doesn t mean a thing. So just because somebody s old, so what Doesn t mean they need a guardian and conservator. A medical diagnosis alone doesn t mean that they need a guardian and a conservator. They might need one 5 years from now but maybe they don t need one. So just, you know, because you had a certain illness like cancer or whatever.
Doesn t mean you need a guardian, you know A cognitive impairment doesn t mean necessarily that they need a guardian and a conservator. Being eccentric, okay There s lots of eccentric people and maybe they want to have purple clothes or, you know, give money to certain organizations, I mean, that doesn t mean they need a guardian and conservator. That means they just have a different lifestyle than you and a different value system as you but that doesn t mean they re incompetent, okay Just because someone is poor, doesn t necessarily,.
They don t need a guardian and conservator, you know And someone can be totally blind and deaf and not need a guardian and conservator. I had a client who was blind and who had many medical conditions, had sort of an abusive nephew come in and want to take over. They filed a petition for guardianship and we got it dismissed because she didn t need a guardian, she could take care of herself. Yeah, she needed help, we made sure she got that, but she didn t need a guardian, she was fine. So, you know, just because there s these things,.
Maybe some family members want to push it along or hurry it along or think, there s prejudice against, you know, these things, against age, against mental disabilities, against physical disabilities and, so you have kind of fight against that. Just because people have those doesn t mean they need a guardian. And then you want to rule out maybe reversible or mitigating conditions, for example, maybe they ve been medicated incorrectly and they have adverse reactions because of that. That happens frequently, there can be delirium, or you know, drugtodrug diseases. They might have a urinary tract infection that causes,.
You know, in older people maybe different things to happen. Maybe just malnutrition or dehydration. Sometimes there are certain vitamins that someone could be given and they re fine, you know So you want to work with your health care providers to determine that it s not those conditions, that it can be reversed, you know, or, it s, you know, or cured. And then there are psychological causes too that often happen in the elderly population, grief, you know, there s a lot of death and a spouse dies or a sibling dies, you know,.
All up in the same year and they become depressed, you know, and they may be acting differently. You know, so you re saying, oh gosh, Mom or Dad is really acting differently, you know, but they ve had all this loss. Any of us would be like depressed. And then communication problems, you need to know, you know just because there s hearing loss or maybe someone never really learned to read right or there s cultural differences. They have to be attended to, that are different, you know, and just because maybe they re different from what.
We re used to and maybe we think that s really strange or weird doesn t mean that they need a guardian or conservator. So there s all those things to consider before you even want to try to get a guardianship. So are there any kind of questions on sort of the pre some of these alternatives inaudible Yeah. I think it s good to know. So there s a lot, a lot you can do. What if the incapacitated person is moving here from another state She should do one that s Utah, do the Utah Advanced Health Care Directive if she s going.
To be here, if she s going to live here, yeah. For example, Oregon has an advanced health care directive that parts of it wouldn t be recognized by the state of Utah so, you know, you want to make sure that it s valid in Utah. For example, a will, if a will is valid in whatever state you executed it in, if it s valid in that state, then you move to Utah, then it s going to be valid in the state of Utah, it s a little different with the Advanced.
Health Care Directive. Another reason to kind of do the form is health care providers, doctors and hospitals now, there s been a lot of education in the last couple of years of this form, so they see this form, they re going to be more likely to accept it rather than if there s some form, they don t know what it is, then maybe they just ignore it all together so that s sort of another inaudible. What is someone made a living will prior to the implementation of the new statutory Advanced Directive form If they did one in Utah, those forms grandfather.
In, like there s the old forms that there was a separate form called the living will, there was a separate form called the health care power of attorney and if they did it in Utah, it grandfathers in. I would recommend, though, that you look at the new form and do the new form because I think it s better, in my opinion. It gives you more opinions and it addresses a lot more issues. So if you have an old one that you did a few years ago, it s valid, but probably do another one with the new form. So now we ve looked at.
Sort of the factors, do you really want to file a guardian. So if you think that you ve kind of gone through, this really is the last resort, you ve looked at those other alternatives, then you can petition to become someone s guardian and conservator. And so what that is, it s really a process where, unlike doing a power of attorney or an Advanced Health Care Directive, this is through the courts, ok So a third party petitions the court and they re called the petitioner and they file a petition for guardian andor conservator.
We re just going to assume that maybe you re applying for both right now, just for simplicity s sake. So you re filing both to have control over the person and the property, ok In Utah now, before you can file for that, you need to take kind of a little test and that is on this flyer that we have here and it s the Utah State Courts Test for appointment of Guardian and Conservator and right above it, it says the basic guidelines for guardian and conservator. So you can go online, you know, you read the guidelines, then you take.
The exam and then there s a form called the Declaration of Completion of Testing and so you just print that out and you sign it and then, you know, you submit it with the petition for guardianship. So where do you file for guardianship That s just kind of what s called venue , you know, the place that you file and it can be the place where the incapacitated person resides or is present. And so if they have been moved to like a facility or something that s maybe in a different county, it can be filed in that county of the facility that.
They re in. So who can file Well, really the court s pretty broad and it says the incapacitated person or any person interested in the incapacitated person s welfare can file a petition for guardianship. What if the ward and the guardian live in different places The guardianship needs to be filed here, where the incapacitated person lives, ok It needs to be filed here, then the court will look at that and determine what they think they re going to do. If a guardian lives somewhere else, you know, they may not appoint that guardianship. inaudible.
Question Well, you need to file where they are. I don t know California law, we re doing Utah law here, ok So really, so anybody can file that s interested in the person s welfare, ok But if you re filing to become their guardian, the court has priorities of who they re going to grant a guardianship to. Now that doesn t mean, the court s always going to take all factors into consideration, you know, but they re going to look at various things and they re in the code, in the law, there s a set priority. And the first priority is, who,.
The court shall appoint a guardian in accordance with the incapacitated person s most recent nomination, meaning if they nominated somebody in, like, Utah Advanced Health Care Directive, then they re going to look to that and say, this is the person, you know, if that evidence is brought to the court, hopefully, you know, and give, grant the guardianship to who that person said they wanted when they could still have the capacity to say that. And after that, it s kind of spouse, an adult child, a parent, and then they go on to maybe a relative with.
Whom they ve resided for more than 6 months, a person nominated by the person s who caring for him and paying benefits to him or a specialized health care professional. So kind of just the easy thing, I mean, it s who they said they wanted, and then after that, it s spouse, adult child, parent. And you know, there is a further list. So that s who they re going to give priority to, that doesn t mean they will totally do that depending on the circumstances. I mean, sometimes you may have all family members that have been terribly abusive to.
That person and so they re going to say, we re not going to give priority to those people because of extenuating circumstances. So when you file the petition, because you are taking away potentially all this person s rights, due process must be met. And that means you have to give notice. There s a special notice that must be personally served on the ward or the proposed incapacitated person and it must clearly state that when you file the petition, the court sets a date for the hearing. So then you have to serve the ward and it.
Has to have the date, time, the place of hearing. It has to let this proposed ward know that they have to have someone representing them so under Utah law, that person has to have an attorney, ok And if they don t have one, the court can appoint one for them. And then also in the notice given to that, the proposed ward, it has to explain to them what a guardianship is and the various rights that they have, including they have a right to counsel, you know, that they have a right to a psychological evaluation, that s another thing that the.
Court can order. And it also has to include a copy of the petition for guardianship. Who pays for the ward s attorney and other court fees Well, it depends. It depends. She asked, who pays for those tests and it just depends, I mean. Generally, it might be out of the ward s estate if it s proven that the petitioner, if the petition is denied, then the costs for all these things may go to the petitioner because they really brought something before the court that didn t need to happen. That s kind of what usually what happens. Also.
Notice has to be served to, kind of, interested parties meaning the spouse, in addition to the incapacitated person, notice has to be served to the spouse, to the parents, to adult children, any person who may be serving as a guardian or conservator or who has the care and custody of the ward. And so those people have to be noticed. And so once again, the incapacitated person has to have counsel, if they don t have one, the court can appoint them. They also can be examined by a physician and the court can also send out what s called.
A court visitor , to kind of go out and check things out too. And the person needs to be present at the hearing, ok Because we would all want that, right We wouldn t want all our rights taken away and just say, oh, she couldn t come to court, you know So there s a really strong rule that says that person has to be present. However, there s always exceptions, right The presence can be waived and it has to be requested in writing to the court of why they want to waive the presence of the incapacitated person and that s when.
The court can appoint a visitor to say why is this going on. And they can, the court can waive the presence if there is clear and convincing evidence that the person suffers from inaudiblestage Alzheimer s, extended comatose or profound mental retardation. I ve also seen something if there s a letter from the physician that really explains clearly why it s really not going to be in the best interests of this person to attend the court hearing, the court may grant it. But, you know, it s really a serious thing so you have.
To have a pretty good reason why that person shouldn t be there. And then, of course, attached to the petition, you need to have medical evidence, right, that says that this person, why they need a guardian and conservator. And that can be a bazillion different reasons, right But it should be from a reallive doctor, maybe a geriatrician, you know, someone that s had, or a family doctor that s seen that person but why Why do they need a guardian What are the conditions And that doctor should state, here s the conditions and based upon.
Those, it s, you know, his opinion that they can t do A, B, C, and D and therefore they need a guardian and conservator. So that s one of the things that has to be there and that you have to have and you d want that, you know, if the reverse was true, you just wouldn t want your daughter to be able to say, oh I think she needs a guardian, you know. No. There has to be medical evidence. So then we re just going to kind of assume.
That nobody sort of contests that, that everybody was noticed, everybody go to court, nobody objects to it, then the court will appoint the petitioner as the guardian and conservator. And there s a document called acceptance of appointment where the guardian says I agree to do my duties and I agree to submit to this jurisdiction of the court so if I do bad things, the court can kind of come after me. And there s also letters of guardianship and conservatorship that are prepared and signed by the court and so that gives that person the ability.
To take that court order and say I m this person s guardian and conservator so I have the authority to do the thing I am trying to do so here s proof that I do have that. And the duties can be really broad or narrow. Generally, if, unless you carve out limitations, there s very very broad duties that are set out in statute of what the guardian can do and what the conservator can do. They have the basically same rights and duties that a parent has, they wouldn t have, like, personal responsibility for actions of the ward that.
Kind of were out of their control. They have custody, can establish the place that they live, provide for the comfort and care and maintenance, give consents to medical treatment. They cannot decide religious preference, they cannot change a will and they cannot, like, physically punish the ward, ok So the conservator, person over the money, has all these broad duties unless it s specifically cut out, but they can t comingle their funds with the ward s funds. They can t pay their personal expenses from the estate. They can t borrow.
Money for their own use. They can t sell property for less than fair market value. And both these parties must take into consideration the ward s existing estate plan, what they wanted in their will, what they have in their trust, to the best of their ability, you know. Sometimes, they may need to sell things or do certain things to take care of the ward but they need to take those plans into consideration. And then after the appointment, there s various reports that the guardian and conservator have to file. And those are also on, it s.
The last one here, the forms are there online and there must be a report of the status of the ward by the guardian 60 days after the anniversary of the appointment. There must be an inventory done by the conservator 90 days after appointment. And there has to be a financial accounting, depending on whether there s a guardian or conservator or both, like 60 days after the appointment. How often do you have to make a report to the court s annually and then, if you don t report, if you don t do these reports, if you ve received.
A written notice from the court and this has gone on for a couple months, the court can actually impose a criminal penalty of up to $5000 for not filing these reports. So the liability what s your liability as a guardian and conservator You re not personally reliable for the ward s acts. You re not reliable for reasonable actions taken in the best interests of your ward, ok You can t go out and spend his money to go on a trip for you, you know. And you re not liable for managing the ward s estate if you have acted as a reasonable.
Person for investment purposes. Who decides if the guardian s actions were reasonable Well, if somebody contested, I mean, that s sort of whoever was contesting that you didn t act that way. The court, quite honestly, you have to file these reports but no one s looking at these reports is practically what happens. But if somebody did do it, it would be the court looking at that and saying, you know, the reasonable, a prudent man standard for the investments. You know, are you acting in the best interests of your ward And usually.
If someone s doing something for themselves, that s not good, you know. A guardian and conservator can be paid. I mean, oftentimes if they re family members they don t take any money. And it s reasonable compensation. And then also, one of the things the court can require and usually, once again, this may not happen if it s a family member, to require a bond be posted, to sort of, protect against, you know, theft, and the court can require that a bond be posted. And so, you know, if you re just basically acting in the.
Best interests, you re going to be ok, filing these reports. But people do a lot of bad things and you can be found criminally liable for abuse, neglect or exploitation, for theft or unlawful dealing of property as a fiduciary, so, and just on the other side of that, if you think you have seen that with a vulnerable person, potential financial abuse, neglect or exploitation, you should report that to Adult Protective Services, and that s a state agency. And if you think there has been abuse, neglect, or exploitation, report it to adult.
Protective services or the police. And so one of the things I want to talk about that is really hard that most people don t do is when you file that petition to try to, the law says that the court prefers a limited guardianship and may grant only a full guardianship if no other alternate exists. And so that s why when you get, you know, when you re having maybe medical testing done, you want to see what can the person do, so then maybe you carve that out so that person can do certain things. And the rationale for these limited.
Orders, and quite honestly, people don t do them very often, but we need to do them more often. So that you re trying to maximize the autonomy of the ward, so that person, you know, can do what they can do. And you re supporting that principle of doing the least restrictive thing for the ward. You re encouraging, this kind of encourages communication between the guardian. Some examples of limited orders might be that, you know, Mr. X retains the right to have him spend $20 of cash per week. Or they have the right to make donations to.
An organization up to a certain amount. Or they, you know, have the right to smoke, or maybe go someplace, you know, if they have the money, that they like doing. So what things do they really like doing and maybe you want to try to carve that out so there s an insurance that they can do those things. inaudible question If possible. And that s hard to do and most people don t do it, they just, the guardianship granted is a full guardianship and all the rights are taken away. So it s harder to do it this way. It s better, but.
It s a lot harder to do more limited guardianship. inaudible question Right. I mean, that s what we re trying to do, is keep dignity, respect, autonomy, yeah. Okay. So then at the end of it, can a guardian be removed or resign, I mean, how does that all work So an appointment lasts until it s terminated by the court except if there s like an emergency guardianship. Sometimes, somebody might be taking somebody s house and you need to go in there and immediately get like a temporary guardianship and that s just for 30 days.
But other than that, it lasts until it s terminated by the court. And that might, due to the resignation of a guardian. And if you are a guardian and you resign, you re going to have to make sure the court appoints someone else or the resignation isn t going to be effective because you want protection for that person. The incapacity or death of a guardian the guardian may die or become incapacitated. A change in the ward s condition, like, for example, certain kinds of brain injuries, maybe they re cured, maybe they re better and the guardian is no longer.
Needed. Or the death of the ward. Or, someone may petition because the guardian, they don t think the guardian is doing a good job for a variety of reasons and the court determines it s in the best interests of the ward to appoint a new guardian. So they can be removed and that s how guardianships terminate. There s a couple of other things that I wanted to talk about that you brought up, mediation. Basically, a lot of the times, families, it all might be fine, it s great, they understand Mom or Dad may need a guardian and we want,.
You know, Mary Jane to be the guardian, that s fine. But if families are fighting, it s kind of a mess and it can be really expensive in court. So some ways to maybe sort of deal with that beforehand, before you get to court, and even if you go to the court, the court may order mediation and say, you guys go mediate it. But, before that, you may want to go to mediation and mediation, there s a mediator and they re a neutral third party, right And they have kind of family get together and it s not an alternative to guardianship,.
You re kind of deciding what to do. You re not determining incapacity but you just have this neutral facilitator that s addressing family disputes and maybe they help in identifying a care plan or the selection of who the other guardian should be. So just know that that s available. And you can kind of do that beforehand if you think there s going to be a lot of sort of fighting. And it s in everybody s best interest to kind of maybe try to figure out that beforehand. What happens when people start fighting is it really starts becoming.
About the kids control rather than what s in the best interests of this incapacitated person. And so that s kind of what you try to want to nip in the bud. Yeah inaudible question The question is, if a person s critically ill and may be inaudible, then what should happen in the medical plan for this person, this critically ill person One of things, hopefully the person did an Advanced Health Care Directive that said what they wanted and identified a person to make those decisions, ok If they didn t, the Utah Code has a default.
Surrogate and says here s who gets to make those decisions and I don t know those off the top of my head. But if there s not under, if they didn t do an Advanced Health Care Directive, then the courts are going to look to, they re going to look to who should be the default surrogate person. And then there s the reality of maybe what the medical ethics committee of that medical facility is going to do and, you know, that may be something else again. Like if there s 10 family members all fighting, saying different things, they.
Just may have an ethical committee make a decision of what they re going to do or not do. But hopefully that s why you do the Utah Advanced Health Care Directive so that situation doesn t happen. So if there s 5 kids, you ve designated, I want, maybe none of your kids, maybe it s a friend to make those medical decisions for me. Or I ve done my living will and here s what I want done and or not want done. So that, that s kind of a little bit.
Different situation. This is where, I ve seen it a lot where you have family members and it s like a lot of issues come out, family issues of power and control, is really a lot of it. Maybe a certain person wants to live in Mom s house or they ve been living in Mom s house so they want to be the guardian and have control. I mean, there s many permutations but so they re all sort of saying no, I don t want this person to be guardian or that.
Person to be guardian. So this mediation may kind of help ferret out all those issues and kind of really stick to the main line of how can we best help this incapacitated person. Yeah. Comment from the audience we find so often, in all kinds of mediations, but especially with adult family members who are arguing or have different ideas about what s going to be best for the inaudible person. And so often sitting down and having, helping them, each person give their perspective, you know it s all about perspective, because.
There s misunderstanding, because there s so much emotion in that situation and the mediator will help filter through that and keep it directed on what is best for the elderly person. And so once everyone understands all the perspectives, a lot of times the misunderstandings go away and it s a lot nicer. So she s saying as I m just, as a mediator, it helps to get the family together and listen to all their perspectives and if they have a chance to talk, then maybe they see other people s points of view and then maybe things can be worked.
Out. Comment from the audience And some times, one person feels like they re not being heard. Yeah. So, another thing, if you can t come to some resolution of who should be a guardian and conservator, there s also professional organizations that act in this capacity. And they cost money but that s like a neutral, professional party. It s not on here but the Salt Lake County Aging has a 55 book and you can go there and in addition, so they have a page for guardian and conservators that are these professional organizations.
That act as a professional guardian, that act as a professional conservator. They get paid for services. So sometimes a family, like they all say, oh, I think, you know, Mary Jane should be guardian but we don t trust her with the money. Then maybe you have a professional be the conservator. So that s a way to solve some of the problems but it does cost money and a lot of people just don t have that. But that is another option that you can be aware of. And also just in terms of a resource, the 55 book also has.
Everything for like assisted living, nursing facility, so that is a very good resource for lots of kinds of help. Salt Lake County Aging Services, and I don t know what their website is, but it s Salt Lake County Aging Services and you can get it online. You can also just go down to the county, it s on, you know, State Street and 21st South there. And they have, it s the 55 booklet and it s free and it s a really good resource. m not sure what. And then I just wanted to mention too, mention to you if you know, you see maybe.
Abuse, neglect or exploitation to report it to adult protective services or the police. But also if you see a situation where somebody really doesn t have any family members that you re aware of and maybe they really have limited assets, there s an organization, and I believe it s on here, called the Office of Public Guardian. And they re a state agency and they re kind of like the guardian of last resort. And they will act as a guardian for somebody if they really, they don t have a lot of assets, ok, and there s nobody else.
To be the guardian, ok And their website, does has some resources and they have information, but so if you re aware of somebody in that situation, then you can call them up and they ll kind of go out and investigate it and see. Maybe we can act as their guardian so that s another source because a lot of times we think everybody has a lot of family but, you know, maybe they don t. So that s another resource. That s kind of it, so are there any questions Ok, then thank you. Page PAGE of NUMPAGES yhyWFhF hlz xVgEgx hlz hltll.