BY: THOMAS J. SCRIBNER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

         The issues surrounding guardianship are simple in concept but can be very complex in creating a guardian suitable for society and the court.  In theory we need a guardian when the person is “incapacitated” and  “the appointment is necessary or desirable as a means of providing care and supervision….”  UCA 75-5-304(1).  Sounds simple enough.  We file to be a guardian over a parent and the court gives us full guardianship to make all of their decisions, and it is over, right? Not even close.

To begin with, what does “incapacitated” mean?  UCA 75-1-201 (22) is the latest attempt to define the term, which boils down to someone who lacks the ability, even with technological assistance, to meet the essential requirements for physical health, safety or self-care in his/her ability to: receive and evaluate information; make and communicate decisions; or to provide for necessities such as food, shelter, clothing, health care, or safety.  That’s a lot of different things.  Sometimes a person cannot do any of those things for himself, though often he can do some of those things just fine and only needs help in certain areas.  Because of this, the court prefers a limited guardianship and will only grant a full guardianship if no other alternative exists.  What does that mean?

Here is one of the main complexities in a guardianship proceeding.  Society demands that we be allowed maximum freedom without interference, and will only get involved if someone proves, by clear and convincing evidence (which is a very high standard), that our freedom needs to be taken away.  That is as it should be.  The court is on the lookout for others trying to take advantage of an old or feeble person.  It is so important that the court will require an attorney to represent the person being interfered with, whether the other parties have an attorney or not.  That attorney will, among other things, make sure only the minimum amount of control is used.  Thus “incapacitated” means different things in different proceedings, depending on what areas the person needs help in.  Perhaps he can drive and has a job he can handle just fine, but he can’t live by himself and so needs care with food and shelter.  Perhaps he is blind and can manage at home just fine, but can’t go shopping or needs help dealing with daily mail and bills.

What makes things even more difficult is when mental health is brought into the equation.  Clearly, someone may be blind but otherwise brilliant.  He may not need a guardian at all.  On the other end of the spectrum, when someone becomes a danger to herself or others, certain people are given the power to place that person in a lock-down hospital facility for 72 hours completely against his will.  But once that person is determined to no longer be a danger, he is released.  He may be having a bad reaction to new medication or has quit taking his existing medication.  He may need a great deal of help now, but once the medication problem is solved, he may be fine on his own, with just someone to come over each day to make sure the medications are being taken correctly.  Or he may need to be placed in a controlled facility for a period of time, but he doesn’t want to.  As this article shows, there are myriad issues which must be worked through; this is an area of law that requires competent legal advice.  If you have questions, give me a call.