Guardianship Laws

Adult Guardianship Statute: 
Right to Counsel in Statute: Initial Guardianship Proceedings: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Not stated
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

Unless the allegedly incapacitated person has counsel of the person's own choice, the court shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the person alleged to be incapacitated. If the court determines that the petition is without merit, the attorney fees and court costs shall be paid by the perosn filing the petition. Utah Prob. Code § 75-5-303(2). In the Comments section, the court-appointed counsel may be appointed to serve as the guardian ad litem as well.

Advocacy Role of Counsel Defined in Statute: 
Not stated
Professional Rules &/or Ethics Opinions: 

Utah Prof. Conduct Rule 1.14: "(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity...the lawyer may...seeking the appointment of a guardian ad litem, conservator or guardian. Utah Prof. Conduct Rule 1.14. Comment: [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon and reach conclusions about matters affecting the client’s own well-being. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. [3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf. [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward’s interest, the lawyer may have an obligation to prevent or rectify the guardian’s misconduct. See Rule 1.2(d). [6] In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician."

Other Important Info: 

"Regarding due process, Utah focuses on clearly defining the scope of permissible conduct of the guardian because an overbroad scope is unconstitutional. Due process is required because the state action impinges on fundamental rights. In re Boyer, 636 P.2d 1085 (1981). Utah also requires the guardian to file an annual report with the court on the ward's status. Utah. Prob. Code § 75-5-312(2)(e). (2) Absent a specific limitation on the guardian’s power in the order of appointment, the guardian has the same powers, rights, and duties respecting the ward that a parent has respecting the parent’s unemancipated minor child. (2)(a) A guardian may establish the ward’s place of abode within or without this state. (c) A guardian may give any consents or approvals that may. be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service. Utah Prob. Code § 75-5-312."

Discuss Guardianship or Supported Decision-Making?: