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What is a Legal Guardian?
The courts grant legal guardianship of a person with special needs to a responsible person (the guardian) who is either named in a document or chosen by the courts if no estate plan document is in place. In many instances, guardianship is granted for underage children whose parents have passed away at an untimely age. However, sometimes, guardianship may be necessary for adults with disabilities or special needs. In such cases, the legal guardian would be granted the authority to make partial or complete decisions for the ward, provide for their needs, and look after them.
The courts must make a determination as to whether the adult is “incapacitated” prior to appointing a legal guardian. “Incapacity” of “incapacitated” is a legal term for when an individual cannot manage certain areas of their lives on their own. Once an adult is deemed incapacitated due to their special needs or disabilities, a Utah court may deem it necessary to appoint a guardian.
In some cases, adults with special needs don’t need a guardian with full authority to make important life decisions on their behalf. In such instances, guardianship should be designed to help the ward maintain as much independence and self-determination as possible.
Utah courts take guardianship matters very seriously. They thoroughly investigate a case before granting guardianship. For legal assistance in guardianship matters, it is strongly recommended that you retain professional legal counsel from experienced attorneys. Our law firm is uniquely qualified to help clients with special needs planning. To learn more about our legal services, please get in touch with our law office to schedule your initial consultation today.
When is Guardianship Potentially Necessary for an Adult?
Parents of underage children almost always have the legal authority to make important decisions for their children unless their parental rights have been terminated. But what of the right to make important decisions for special needs adults?
When you are seeking guardianship for a special needs individual, from the perspective of the law, you are essentially requesting that the courts take away the legal rights of the incapacitated person and reward those rights to the adult guardian instead. This decision is not taken lightly. However, if a person is legally declared incapacitated due to a medical or mental health condition that renders them unable to care for their own financial and physical well-being and provide for their own basic needs such as food, shelter, or clothing, they may be a good candidate for a guardian.
What Are the Key Considerations When Selecting Guardianship for an Adult with Special Needs?
The decision of who should serve as a legal guardian for a special needs adult must be carefully considered. The wrong choice could result in improper care for the adult with special needs.
Key factors to consider when selecting a guardian for the special needs adult include the following:
- A close personal relationship or bond shared between the proposed guardian and their ward
- Cultural or religious traits that the guardian and their ward share may be important. You do not want the guardian and the ward to be at odds culturally or philosophically
- Geographical proximity is important. The guardian must be able to be at the ward’s side when necessary
- Guardians cannot be minors. You want to select a guardian who is of proper age to care for another individual, someone with maturity and physical ability
- If the guardian already has children of their own, they may be stretched very thin. You want to select somebody who is willing and able to devote a large amount of time to their ward
- The guardian should be someone who is considered trustworthy and reliable
What May Disqualify Someone as a Guardian?
Just as there are several factors worth considering when selecting the right guardian for the special needs adult, so too are there many considerations for matters that may disqualify an individual as a potential guardian.
Potentially disqualifying factors may include:
- A history of violent offenses such as child abuse, domestic violence, and assault may indeed be disqualifying
- Guardians cannot be under the age of 18
- Having been previously convicted of a felony may disqualify an individual from being a guardian
- The proposed guardian must be competent. If they are incompetent and not able to care for themselves properly, how can they be expected to care for their ward
What Are the Alternatives to Legal Guardianship?
There are several different alternatives to guardianship. Advanced healthcare directives and healthcare power of attorney documents could also be useful for providing assistance to individuals with disabilities or special needs.
Our law firm can also assist you in creating a special needs trust. With such a trust, assets can be managed for a special needs individual while allowing them to still qualify for different benefits programs.
Schedule a Consultation with Our Law Firm to Discuss Special Needs Planning Today
Many people make mistakes when considering guardianship for special needs individuals. Some of these mistakes include not thinking in the long term, not providing proper notice to interested parties, naming only one guardian, making decisions as a parent would over a child, failing to provide detailed instructions on how to care for the incapacitated adults, and selecting individuals who do not understand or comprehend the needs of the incapacitated. As your legal representation, we will help you determine the right person for the job so that your loved one is properly cared for today and into the future.
To learn more about how we may assist you legally, please contact our law office to schedule your in-depth case evaluation today. You can reach us at 385-334-5024.
