How can I become the legal guardian of my disabled adult sister?

How can I become the legal guardian of my disabled adult sister?

Question: My adult sister is severely disabled and was previously being cared for by my father until he died recently. Now I want to become my sister’s legal guardian. How do I go about doing this?

Assuming there are no other family members who would object to you serving as your sister’s guardian, this should be a (relatively) easy process. That stated, guardianship issues can become complicated, and it is likely in your best interest to seek help from an attorney. So let’s discuss what a guardian is and then the process of becoming a guardian.

First, some definitions: a legal guardian is a person who has been appointed by a court to take care of either a child or an incompetent adult. A guardian makes mostly healthcare-related and personal decisions. The person placed under the protection of the guardian is known as a “ward” or a “ward of the court” or “ward of the state.”

In your case, it sounds like you want to be able to make important financial, health, and personal decisions on behalf of your sister. If you want to manage your sister’s finances, then you need to apply to be her guardian and her conservator.

A conservator is like a guardian, but is in charge of taking care of mostly financial and property-related decisions for the ward.

To become your sister’s legal guardian, you must first petition the court. You must file the petition in the county where the respondent (that’s your sister) is living.

You must also pay a filing fee to the court, which is, as of the date this article is written, $35.

If your whole family is on board with you becoming your sister’s guardian and/or conservator, and if they can agree that you should be the guardian, you will not need to litigate and can complete the process quickly. Once the court has received your petition, they will schedule a hearing. Bring your sister to the hearing and any relevant documents. If the judge feels that you’re capable of becoming the guardian, he/she may appoint you right then.

If the petition is contested:

If the petition is contested, you must serve it upon a number of people:

  • The respondent (your sister);
  • The respondent’s spouse, parents, and adult children;
  • The respondent’s closest adult relative if the spouse, parents, and adult children can’t be identified;
  • The respondent’s current guardian, conservator, caregiver, and custodian;
  • The respondent’s healthcare decision making agent;
  • The person nominated as respondent’s guardian;
  • The respondent’s agent under a power of attorney; and
  • Any other interested person.

See Utah Code § 75-5-309 and § 75-1-401 for the governing rules on how to serve and who to serve.

Once these people have been served, they will have an opportunity to object to the petition. It is wise to communicate with any other family members prior to petitioning for guardianship in the hope and the effort of resolving any issues before they become distressing and costly.

Once your petition is filed and served, the court will schedule a day and time for a court hearing.

Utah law requires that both you and your sister attend the hearing. This is one of the more important things to remember, since the court wants to see the respondent in the flesh before making a guardianship determination. Depending on your sister’s specific disability, the court may waive this requirement if it’s clear that she would be unable to attend.

During the hearing, the judge will ask you questions and consider several factors. Make sure you have clear and convincing evidence that your sister lacks the ability to make decisions and care for herself.

If there has not been an objection to the petition, and the judge finds the circumstances to warrant you as her guardian, they will appoint you right there.

If there is an objection, the judge could require either mediation or a trial.

The court order will include a letter of guardianship that gives the guardian authority.

You will need to make sure to provide a copy of this letter to any third parties that you will be dealing with as your sister’s guardian.

Guardianship issues have several moving parts, and can become complicated quickly. If you would like to discuss what an attorney could do to help you with the guardianship and/or conservatorship process, please give us a call.

Utah Family Law, LC | | 801-466-9277

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