by Kristin K. Woods
A guardianship can be an essential tool for a spouse, child, or other caregiver who is charged with managing and protecting the assets of a loved one who is no longer able to make responsible decisions. However, because there are emergency provisions within Utah’s guardianship statutes that allow for an immediate, temporary guardianship, there exists the potential for abuse. The severe and potentially devastating impact that a guardianship has upon the rights of the ward requires members of the Utah legal community, both attorneys and judges, to pursue and decide guardianship cases with caution and discernment.
Utah Code section 75-5-310 provides the procedure for one to acquire a temporary guardianship. This statute states that if an emergency exists, or if an already appointed guardian is not performing his or her duties, and the court finds that the welfare of an incapacitated person “requires immediate action,” the court may, without notice, appoint a temporary guardian to serve for a period of not more than thirty days. Utah Code Ann. § 75-5-310(1) (Michie 1993). As an apparent safeguard against potential abuses, the statute also requires the court to hold a hearing to consider the appropriateness of the temporary guardianship within five days of the appointment of the temporary guardian. The ward must be noticed of this hearing, and the court “may appoint an appropriate official or attorney to represent that person in the proceeding” unless the ward retains his or her own attorney. Id. § 75-5-310(2).
Utilizing section 75-5-310 can be a necessary and even lifesaving tool in appropriate circumstances where a proposed ward is in immediate physical or financial danger. However, the statute leaves room for a nefarious or misinformed person to misuse this statute to gain control over a person and their assets without due process. The language of the statute reveals important and practical realities. For one thing, in order to grant a temporary guardianship, the judge must be able to make a quick determination that the proposed ward is, in fact, “incapacitated.” Utah Code section 75-1-201(22) provides that the definition of an “incapacitated person” is “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.” Utah Code Ann. § 75-1-201(22) (Michie Supp. 2012). Most often the petitioner will submit an affidavit and/or a letter from a medical provider or other material witness that provides the judge with enough information to determine that the proposed ward appears to be incapacitated on the basis of the facts. Because the judge is being presented this information ex parte and without notice to the proposed ward, the greatest potential for abuse exists at this initial stage. Theoretically, a person could submit fraudulent documents to the court and the judge would have no way of knowing this. Although this risk of fraud exists in any ex parte proceeding, in guardianship proceedings this reality is especially daunting because the appointment of a guardian removes the ward’s ability to make his own decisions and allows the guardian access to financial accounts. Once under a guardianship, the constitutional rights of the ward are limited, and in some cases stripped, and the ward is completely dependent upon the authority of his guardian.
The second implication within the language of section 75-5-310 is that the judge must make a quick determination that the proposed ward’s welfare is in danger such that “immediate action” is required. See id. § 75-5-310(1). Again, the petitioner usually submits to the judge an affidavit containing facts that explain to the judge what the emergency situation is. As the judge is forced to rely solely upon the ex parte testimony of the petitioner, there is again the risk of abuse. Typically this exigent situation must be one that causes the judge to determine that the situation is so serious, and the proposed ward’s welfare faces such harm, that if an immediate order is not issued harm will occur to the ward that is more serious than the harm of the appointment of a guardian without due process. Again, the judge is forced to act solely from the petitioner’s evidence and testimony, which creates a possibility of abuse.
The third reality of section 75-5-310 arises if the judge determines that he or she is persuaded by the evidence presented and grants the temporary guardianship. Once this happens, the ward may not be able to contest the order appointing the temporary guardian for a time period of up to five days. While the ward is stuck, waiting for the hearing, the temporary guardian will have already been authorized by court order to act in all respects for the ward, including accessing assets and making business and healthcare decisions for the ward. During this period of time the ward is absolutely vulnerable, financially and physically, to the guardian. If the guardian has indeed pursued the guardianship for nefarious purposes, the five days in between the issuance of the order and the hearing provide plenty of time for the guardian to access, and potentially convert or sell, assets, or to disrupt the ward’s living situation in some way, such as admitting them into a care facility against their wishes.
In circumstances where section 75-5-310 is being misused, it is almost never the obvious bad actor with evil intentions who is pursuing the guardianship. More often than not it is a frustrated spouse or family member who has simply grown tired of the hassle created by the decisions of an aging loved one. In these situations, many times the family member simply desires to acquire control of the finances because they disagree with the manner or method in which the proposed ward handles their affairs, even though that manner or method may not be harmful. This is where a competent and keen attorney can be useful in guiding a potential guardianship petitioner away from guardianship, and towards a less-extreme estate planning solution, such as a power of attorney. This course of action would allow the parties to cooperate financially, but spares the potential ward from being stripped of all his or her decision-making power and constitutional rights.
Unfortunately, the possibility for abuse of the guardianship statutes seems to be becoming more and more real. The MetLife Study of Elder Financial Abuse, released in June 2011, estimates the annual financial loss to elders by exploitation to be at least $2.9 billion, which represents a 12% increase from the figures reported in 2008. When a guardianship is granted, the ward’s constitutional rights to life, liberty, and property can be limited or completely denied by the appointed guardian. The severity of this legal remedy is desirable and allowed because there are incapacitated people who absolutely need others to step in at some point as guardians, and to protect them physically and financially. However, in many cases the delineation between an incapacitated person and a healthy person is not so clear, and necessitates extreme caution on the part of the attorneys and judges involved. The affidavits and other evidence submitted by the petitioner should be scrutinized carefully by the court before appointing a temporary guardian, and if it is later discovered that the petitioner has exaggerated the exigent nature of the temporary guardianship or falsified evidence, sanctions should swiftly issue and be enforced to the fullest extent. The practical reality is that legal professionals are often involved in these situations, and because of this they must act cautiously to make sure that section 75-5-310 is not being used to add to the ever-rising, staggering, and devastating statistics of elder exploitation.