A common concern for Utah seniors is the guardianship process for when and if they become incapacitated. For a guardianship to be necessary, a court must determine that the adult in question lacks the capacity to safely manage his or her affairs. The party moving for guardianship and the incapacitated adult are usually both represented by attorneys. A guardianship is not all or nothing; for example, if the court determines that a person has capacity to manage day to day affairs then it may only impose a limited conservatorship over a person’s finances in lieu of full guardianship.
The appointed guardian must follow certain guidelines such as regular reports to the court. A guardianship is a last resort because it involves removing a person’s individual liberties and assigning them to the care of someone else. I definitely do not want to discount the value of the process for some, but in most cases proper planning can circumvent the need for a guardianship.
The plan is a simple combination of documents; 1. the Durable Power of Attorney, 2. the Advance Healthcare Directive and 3.(in some cases) a Revocable Trust. The durable power of attorney appoints an agent to be able to make financial transactions on behalf of the person granting the authority. The term “durable” means that the Power of Attorney does not become invalid if the granting person loses capacity. The Advance Healthcare Directive appoints an agent to make Healthcare decisions for a person who no longer has capacity. Finally, the Revocable Trust is an organizational tool that can help ensure a person’s assets are accounted for and managed correctly during incapacity.
By implementing these documents a person skips the need for a court process by designating agents to help during incapacity. This means that the incapacitated individual never loses their rights or liberties because they are simply authorizing agents to act on their behalf rather than surrendering control of their rights to a guardian. Finally, a word of caution, Powers of Attorney are very important documents and should be used as part of a carefully-made plan, not haphazardly.