Guardianship

When a person turns 18 years old, that person becomes a legally competent adult in the eyes of the law with all the rights and responsibilities of adulthood.  Regardless of an individual's level of disabling condition or functional abilities, that person is considered to be a legally competent adult until proven otherwise by a court of law.  If your child's decision-making capacity is severely affected, based on a chronic or acute condition, it may be necessary for them to have a guardian.

To establish a guardian, it is necessary to file a request for appointment of a Guardian of an Incapacitated Person in the District Probate Court in the county where the individual resides.  The court then sets a date for the hearing to determine if the petition has merit.  At the hearing , the individual with a disability has the right to legal representation, to be present at the hearing, to conduct cross-examination and to receive notice.

Full guardianship over a person with disabilities is not always necessarily and is rarely awarded.  A limited guardianship or other legal means of providing informed consent may be more appropriate.  There are different types of limited guardianship including medical, habilitation (training), residential and financial.  Most often these are awarded according to the needs and rights of the individual. 

Legal guardianship does not mean that you must keep your family member in your home.  It does not mean that you take the obligation to support that person financially or become their "forever" caretaker.  If the person for whom you seek guardianship has some decision-making abilities, you will not even be granted guardianship over all aspects of that person's life.  The rights and privileges of an incapacitated person are not taken away with guardianship.  A guardian is granted authority only "to protect the rights, interests and well being of said person."

In any setting, a person who is 18 years old is his or her own guardian.  That is no different for someone residing at the Utah State Developmental Center or at a private Intermediate Care Facility (for persons with) Mental Retardation (ICF/MR).  If you are a parent or relative of an individual who is in one of these facilities, you may consider legal steps if you want to be able to give legal consent for critical treatments your family member may require.

The following are three sources of information about guardianship: