What is Conservatorship?

Conservatorship is a legal status that is a companion to guardianship. It does not replace it. The court appoints a conservator or person to manage the financial and personal affairs of a minor or incapacitated person. A conservator may also serve as a guardian who is responsible for establishing and monitoring the physical care of the individual and managing their living arrangements.

When is a Conservator Appropriate?

  • A conservator may be appointed if the respondent is unable to manage their property and finances effectively because of:
  • mental illness
  • mental deficiency
  • physical illness
  • physical disability
  • advanced age
  • chronic use of drugs
  • chronic intoxication confinement detention by a foreign power disappearance some other cause

Additionally, the respondent’s property must be at risk of being harmed unless proper management is provided, or funds are needed for the support, care, and welfare of the respondent or those entitled to be supported by the respondent and protection is necessary or desirable to obtain or provide funds. The petitioner must be able to prove the above listed requirements by a “preponderance of evidence.” The Utah Courts define preponderance of evidence as: Evidence which is (even minimally) of greater weight or more convincing than the evidence which is offered in opposition to it. This is the standard by which a plaintiff must prove his/her case in a civil suit.

Use this link to access the Utah Courts website for the Procedure for Appointing a Conservator for an Adult webpage.

Power of Attorney

What is a power of attorney? Another alternative to guardianship is a power of attorney document. A power of attorney is a legal document in which one person (called the “principal”) gives to another person (the “agent,” or sometimes called the “attorney in fact”) authority to act on behalf of the principal. The person who is the agent only has the authority to act in the areas outlined in the power of attorney forms (ex: financial and/or medical, but not over all the areas of a person’s life). A power of attorney can be very broad, allowing the agent to perform a variety of tasks. For example:

  • handling bank accounts
  • selling real property
  • running a business
  • applying for public benefits

It can also be very limited and restrict the agent to one or more very specific tasks. For example, selling one specific piece of real property. The agent cannot use the principal’s assets in a way that is against the principal’s wishes. A well-written power of attorney can be a helpful legal tool to allow someone else to handle a person’s financial matters without the need for more complex arrangements like a trust or a court-appointed guardian or conservator, which removes many or all of the person’s decision-making authority. A well-written power of attorney can also help protect against possible financial exploitation and abuse. A lawyer experienced in estate planning is the most appropriate person to write a power of attorney and give advice about what is needed in specific and unique situations. There are also several power of attorney forms available on the internet but they may be too general for a specific circumstance. They may not follow the requirements of Utah law, or they may not protect against financial exploitation and abuse.

Benefits of a Power of Attorney:

  • The agent is chosen by the individual
  • Low cost or free in some cases
  • No court time required
  • Authority is outlined in the document
  • The form is easily accessible

Limitation of a Power of Attorney:

  • The principal has to have the capacity to understand what they are signing
  • If the document is challenged, the court may be needed to enforce it
  • The principal can choose anyone to be the agent, creating the possibility of being taken advantage of
  • The document is usually over limited areas of the person’s life.

The agent is the person appointed by the principal to handle the duties stated in the power of attorney document. See Utah Code Section 75- 9-114 for the full list of an agent’s duties. A principal can appoint more than one agent and have two co-agents, for example. Unless the power of attorney states otherwise, each co-agent may exercise their authority independently. In addition, a principal can nominate a successor agent or agents to step in if the first agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. If the power of attorney is drafted to also include medical, the agent also has the authority under HIPAA (the federal Health Insurance Portability and Accountability Act) to access the principal’s private health care information and communicate with the principal’s health care providers unless the power of attorney specifically restricts that authority. If outlined, the agent is also able to make medical decisions for the principal if they are unable to do so themselves. A separate document, Utah’s Advance Health Care Directive also includes a HIPAA release, living will, outlines the principal’s wishes, and allows the agent to make medical decisions.

Executing a power of attorney under Utah law:

The power of attorney document must be signed by the principal before a notary public. If the principal is not able to physically sign the document, then another person acting at the principal’s direction in the principal’s conscious presence may sign the document before a notary public. If the principal lives or is about to live in a hospital, assisted living, skilled nursing, or similar facility, at the time of execution of the power of attorney, the principal may not name any agent that is the owner, operator, health care provider, or employee of the hospital, assisted living facility, skilled nursing, or similar residential care facility unless the agent is the spouse, legal guardian, or next of kin of the principal, or unless the agent’s authority is strictly limited to the purpose of assisting the principal to establish eligibility for Medicaid. For more details, changing, revoking, or terminating power of attorney, or related information, refer to the State of Utah’s power of attorney QR code. Utah law provides a statutory power of attorney form (the Uniform Power of Attorney Act, Utah Code 75-9-101 to 403). The form can be used by any adult who has the capacity to complete it. At the time of signing the power of attorney, the principal must have sufficient mental capacity to understand that he/she is appointing an agent to handle their affairs. The principal does not have to understand how the agent will manage the principal’s affairs.