Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
An incapacitated person or any person interested in the incapacitated person’s welfare may petition for a finding of incapacity and appointment of a guardian. Upon the filing of a petition, the court shall set a date for a hearing on the issues of incapacity.
Notice of Hearing:
In a proceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of an emergency guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following:
(a) the ward or the person alleged to be incapacitated and spouse, parents, and adult children of the ward or person;
(b) any person who is serving as guardian or conservator or who has care and custody of the ward or person;
(c) in case no other person is notified, at least one of the closest adult relatives if any can be found;
(d) any guardian appointed by the will of the parent who died later or spouse of the incapacitated person; and
(e) Adult Protective Services if Adult Protective Services has received a referral concerning the welfare of the ward or person alleged to be incapacitated or concerning the guardian or conservator or proposed guardian or conservator
Examinations, Evaluations, and Interviews:
The person alleged to be incapacitated may be examined by a physician or physician assistant appointed by the court who shall submit a report in writing to the court and may be interviewed by a visitor sent by the court. The visitor also may interview the person seeking appointment as guardian, visit the present place of abode of the person alleged to be incapacitated and the place it is proposed that the person will be detained or reside if the requested appointment is made, conduct other investigations or observations as directed by the court, and submit a report in writing to the court.
The investigation by a court visitor is not required if there is clear and convincing evidence from a physician that the person alleged to be incapacitated has:
(i) fourth stage Alzheimer’s Disease;
(ii) extended comatosis; or
(iii) an intellectual disability and an intelligence quotient score under 25.
Adjudication and Disposition:
The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person.
The authority and responsibility of a guardian for an incapacitated person terminates upon:
(a) the death of the guardian or the ward;
(b) the determination that the guardian is incapacitated; or
(c) the removal or resignation of the guardian.
Resignation of a guardian does not terminate the guardianship until the resignation has been approved by the court.
Conservatorship in Utah:
The person to be protected, any person who is interested in his estate, affairs, or welfare, including his parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order.
Utah Code Ann. § 75-5-303
Utah Code Ann. § 75-5-309
Utah Code Ann. § 75-5-306
Utah Code Ann. § 75-5-403