TABLE OF CONTENTS
(1) Introduction.
(2) What is a guardian and a conservator?
(3) How long is my appointment?
(4) Recordkeeping.
(5) Reporting.
(1) Introduction.
Thank you for serving as a guardian or conservator. People incapacitated by age, illness or disability may need special protection. As a fiduciary for such a person, you hold a position of high trust to help your ward make decisions and to make decisions on his or her behalf.
This manual does not explain the process for becoming a guardian or conservator, but it will help you understand your responsibilities after you have been appointed by a court. Because it provides only general information, this manual is not a substitute for legal advice. Consult your lawyer to answer your specific questions.
This information has limited applicability to the guardian of a minor. If the guardianship is limited to the purpose of attending school, the guardian of a minor is exempt from filing the annual report on the status of the ward. (Section (5)(a)). If the minor's estate is deposited in an account that requires judicial approval for withdrawal or if there is no estate, the guardian of a minor is exempt from filing an annual accounting. (Section (5)(b)).
(2) What is a guardian and a conservator?
A guardian is a person or institution appointed by a court to make decisions about the care of another, who is called a "ward." A conservator is a person or institution appointed by the court to manage the property and financial affairs of a ward. Sometimes the same person is appointed to both roles. If no conservator is appointed, the guardian has some of the responsibility of a conservator. Utah Code Section 75-5-312.
A guardian has the responsibility of a parent for a minor, except that the guardian does not have to use his or her own money for the ward's care and support. Utah Code Section 75-5-312. A conservator is the trustee of the ward's estate. Utah Code Section 75-5-420. The ward's estate includes all of his or her property. Some examples are income (such as wages, an annuity, or Social Security or other government benefits), real property (buildings and land), furniture, cash, bank accounts, certificates of deposit, stocks, bonds, retirement benefits, motor vehicles, and valuables such as jewelry, furs, and art. A conservator must use reasonable care, skill and caution to manage and invest the estate as a prudent investor would. Utah Code Section 75-7-902.
If the ward needs help in some but not all areas of decision making, the court may order a limited guardianship. Utah Code Section 75-5-304. Under Utah law, a limited guardianship is preferred, and the court may grant a full guardianship only if no alternative exists. A limited guardian has only those powers and duties listed in the court order. The court may also limit the conservator's authority. Utah Code Section 75-5-426.
In an emergency, the court may appoint a temporary guardian, who serves for no more than 30 days, until a hearing to decide whether the ward needs a permanent guardian. A temporary guardian has the responsibility of a permanent guardian, either limited or full, depending on the circumstances. Utah Code Section 75-5-310.
Your appointment order and letters of guardianship or conservatorship issued by the court should specify the nature of your appointment.
(3) How long is my appointment?
Your appointment as guardian or conservator lasts until the court terminates your appointment. You may resign, and the court will appoint another guardian or conservator if your ward still needs one or both. If you have been appointed both guardian and conservator, you can resign as one and not the other. Or the circumstances that justified the appointment in the first place may change so that the ward no longer needs a guardian or conservator. Changed circumstances might include such things as the ward has been adopted, has reached age 18, the ward is no longer incapacitated, or has died. Regardless of the reason to end your obligations, you retain them until the court removes you. Utah Code Sections 75-5-306 , 75-5-307 and 75-5-415.
Consult your lawyer about the proper procedures to end the appointment and turn over the estate. You must prepare a final accounting and transfer the estate to your successor, if one is appointed, or to your ward. You may need to record a copy of the order ending the appointment with the county recorder where your ward owns land to clear title to that property.
(4) Recordkeeping.
Keeping good records is essential for guardians and conservators because you must account for all transactions at least annually. Contemporaneous records, that is, records prepared at the same time as an event, will help later, when you prepare your reports. As guardian, you must report the status of your ward to the court. Guardians must also report financial transactions to the court or, if there is one, to the conservator. As conservator, you must report financial transactions to the court. In addition to annual reports, any person interested in your ward can request further reports. Also, as is explained in Section (5), you can claim reimbursement from the estate for your ward's living expenses that you pay with your own money.
Set up files to keep legal documents, tax records, paid bills, unpaid bills, correspondence and other papers related to your ward. Obtain a copy of your ward's will, living will, trust or other estate planning documents so you can follow the estate plan. Keep a copy of all documents filed with or issued by the court. Keep the records about your ward separate from your personal records.
As guardian, you should keep a journal or diary throughout the year to record your ward's activities and important events, especially if there is not an independent record of the event. If your ward does not live with you, record the dates of your visits.
Keep negotiable instruments, deeds, and wills in a safe deposit box in the name of the guardianship or conservatorship.
You may be personally liable if you do not keep proper records. Utah Code Sections 75-5-302, 75-5-312 and 75-5-417. The court may order you to reimburse the estate if you cannot show what you did with your ward's property, even if you know that you used it in your ward's best interests. Good records help to protect you in the event that your management of the estate is questioned.
(5) Reporting.
If the court has appointed a separate conservator, you must report to the conservator the financial transactions that you have taken on your ward's behalf. Utah Code Section 75-5-312. Because the conservator has to report annually to the court, you should report at least annually to the conservator. Discuss this with the conservator to ensure that you report at a mutually convenient time.
If the court has appointed you conservator or has not appointed a conservator, you must also file the inventory and accountings required of the conservator. Rule 6-501, Utah Code of Judicial Administration
You must annually account to the court for your ward's estate. Utah Code Section 75-5-417. You must also account to the court for your ward's estate with your motion to terminate the appointment. Utah Code Section 75-5-419. Filing an accurate accounting is important. Failure to do so makes you liable for a fine. Utah Code Section 75-5-417. More important, the court order approving the accounting relieves you of liability for anything included in the accounting. Utah Code Section 75-5-419.
If your ward's estate is limited to payments from a state or federal agency that requires you to account annually to the agency, you may file with the court a copy of the agency's form rather than the court form. For example, this may be the case if you are your ward's representative payee through the Social Security Administration. See Section (11).
The OCAP on-line interview, based on your answers to questions, will prepare the necessary forms for a report on the status of your ward, an inventory, an accounting and notice to interested persons. Keep a copy of all documents for your records.
The deadlines for the status report, inventory and accounting are as follows:
Filed by Guardian within 60 days after each anniversary of your appointment.
Filed by Conservator* within 90 days after your appointment.
Filed by Conservator* within 60 days after each anniversary of your appointment.
File the documents with the court that appointed you. You may ask the court to change the reporting period, such as to a calendar year or any other 12-month period that is more convenient. Rule 6-501, Utah Code of Judicial Administration. This means that for the year in which the change is made you will report for a shorter period of time. For example, if you are appointed on August 17, and receive the court's permission to report on a calendar year basis, your initial report would cover the period from August 17 to the end of the calendar year.
Also, if your ward moves to another county, you may ask the court to move your reports to that county. Utah Code Sections 75-5-205, 75-5-302 and 75-5-403.
You must mail a copy of your status report, inventory and accounting, along with a notice of right to object, to:
Rule 6-501, Utah Code of Judicial Administration
Because the information is sensitive, mark the outside of the envelope with "confidential" or a similar statement. If anyone objects to the filing or if the judge has further questions, the court clerk will schedule a hearing of which you and the others will be notified. Rule 6-501, Utah Code of Judicial Administration
(6) Compensation.
Often a family member serves as guardian or conservator without compensation. A guardian is entitled to reasonable compensation from the estate with the approval of the court or a separate guardian. Utah Code Section 75-5-312(3). What is reasonable depends on the types of services provided, the skill of the guardian or conservator, and whether the time and expenses are reasonable. Utah Code Section 75-5-414. Accurate records are essential.
You do not have to pay your ward's expenses with your money. Utah Code Section 75-5-209. Although you should not commingle your money and property with that of your ward, you can pay for your ward's living expenses and recover your out-of-pocket costs from the estate. Utah Code Section 75-5-102. Because reimbursement for living expenses includes elements of commingling, do it only if it is absolutely necessary. Whenever possible, use your ward's money to pay his or her expenses. To claim reimbursement from the estate, keep a receipt for the goods or services and proof that you paid with your own money. If you need to pay some of your ward's living expenses with your money, you should pay by check, credit card or debit card rather than with cash because cash does not create a record that the money was yours.
(7) Liability.
You are not personally liable for your ward's acts. Utah Code Section 75-5-312. You are not liable for reasonable actions taken in the best interests of your ward. You are not liable for managing your ward's estate if you act like a prudent person dealing with the property of another. You are liable if you are personally at fault and your ward is damaged by your carelessness. Utah Code Section 75-5-429.
Understand your responsibilities, use common sense and exercise sound judgment to prevent problems. You are not required to have any special skills to act as guardian or conservator. However, if you have special skills, you must use those skills to manage your ward's estate. Consult your lawyer to answer specific questions.
The court will require a bond to protect your ward financially, unless it is waived for good cause. Utah Code Sections 75-5-411 and 75-5-412. The bond is an insurance policy paid for by the estate that protects your ward in the event that your mistake causes the estate to lose money. The amount of the bond will be the total value of the estate property over which you have unsupervised control, plus one year's estimated income.
(8) Financial decisions.
If the court appoints a conservator, the conservator will decide most issues involving the ward's money and property and will file the accountings described in Section (5)(b). If the court does not appoint a separate conservator, the guardian has some of the conservator's responsibilities. If you, as guardian, do not want those added responsibilities, ask the court to appoint a separate conservator.
As guardian, you must manage your ward's money and property to pay for his or her support, care and education. If your ward has money and property beyond what is needed for support, care and education, a conservator, either you or another, should invest the excess. Utah Code Section 75-5-312 and 75-5-424.
Involve your ward in the estate management as much as possible, and keep your ward informed. If your ward is able to maintain a small checking account and to pay routine bills, encourage him or her to do so, to provide a higher level of self esteem.
You may use your ward's funds only for his or her benefit. You may take into account your ward's accustomed standard of living. Utah Code Section 75-5-425. If family members express concern about the cost of your ward's care, your responsibility is to your ward, not the heirs.
Open a checking account in the name of the guardianship or conservatorship to deposit income and pay bills. Completely describe each transaction. If the balance in the checking account accumulates beyond your ward's needs, transfer the excess to an interest bearing account or other investment in the name of the guardianship or conservatorship. If you need to withdraw money from the investment account to pay for an extraordinary expense, first transfer the money into the checking account.
Keep your ward's property - including money - separate from yours, and use your ward's property only for his or her benefit. Manage your ward's property as you would want someone else to handle yours. Consult your lawyer or financial counselor to answer specific questions.
(9) What is a guardian's responsibility?
Utah Code Section 75-5-312 governs your responsibility as guardian. Generally, you have the responsibility of a parent for a minor. If the court does not appoint a separate conservator, you also have some of the conservator's responsibilities. Unless your authority is limited by the appointment order, you:
A separately appointed conservator has most of the responsibility for money and property. Discuss with the conservator your respective responsibilities so that both of you clearly understand them.
If the court has appointed a separate conservator, you have the right to receive from the conservator reasonable sums for your ward's daily living expenses. This might be in the form of an allowance to you as guardian to pay third persons, or the conservator might pay third persons directly. Utah Code Section 75-5-312. Discuss this with the conservator to agree upon the amount, method and timing of regular payments and of any extraordinary expenses.
As guardian, you may not:
(a) Decision making guidelines.
Encourage your ward's maximum self-reliance and independence. Involve your ward in making decisions, and allow your ward to make as many decisions as possible. One guide to help you is known as "the least restrictive alternative." This means that, to preserve your ward's independence to the fullest extent possible, you and your ward choose the alternative that will least restrict your ward's freedom.
As guardian, you help your ward make personal decisions or, if necessary, you make the decisions for your ward. If your ward is unable to communicate, try to reach the decision that your ward would have made if able to choose. It is what the ward would do, not you, that serves as your guide, as long as the decision is in your ward's best interest.
(b) Health care.
If your ward has appointed a health care agent in an advance health care directive, that person makes health care decisions for your ward, including decisions about end-of-life. Otherwise, these decisions are yours. Work closely with your ward's doctor or other healthcare providers. You may be asked to give consent to medical treatment. Obtain as much information as you can about your ward's preferences. You can do this by asking your ward directly. If your ward is unable to communicate and has advance medical directives, like a living will or advance health care directive, then you should use those directives to guide your decision. If such documents are not available, speak with your ward's family and friends about his or her medical treatment preferences. If no information about medical treatment preference is available, consider the beliefs of your ward's religion.
Ask questions regarding medical alternatives and the benefits and risks of a proposed treatment. If a proposed surgical procedure or drug therapy is controversial, ask for the court's permission before you authorize treatment.
(c) Living arrangements.
If possible, keep your ward living at his or her own home. Services may be available to provide meals, transportation, or in-home assistance. If your ward is no longer safe at home, it may be necessary to move him or her to a more protected setting. Consult your ward's doctor and other professionals for recommendations concerning placement in a facility that will best meet your ward's needs. Following placement, regularly visit your ward and consult with staff to ensure that your ward's needs are met. Your ward may live with you, your spouse, your parents or your children, but you are not permitted to charge your ward's estate for the cost of room and board unless you get permission from the court or from a separate conservator. Utah Code Section 75-5-312(2) and (3). Regardless of the living situation, you are responsible to ensure that your ward is safe, comfortable, and receiving healthcare, nutrition, grooming, and recreation.
(10) What is a conservator's responsibility?
Utah Code Sections 75-5-424, 75-5-425, 75-5-428 and 75-7-902 govern your responsibility as conservator.
You must exercise reasonable care, skill and caution to invest and manage estate assets as a prudent investor would, considering the estate's circumstances. You must make a reasonable effort to verify relevant facts. Your investment and management decisions about individual assets must be evaluated in the context of the estate as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the estate. Circumstances that you should consider in investing and managing estate assets include the following:
In managing your ward's estate, you are required to take into account any estate plan. Your may examine your ward's will, including a will filed with the court for safekeeping. Utah Code Sections 75-5-427 and 75-2-901.
Unless your authority is limited by the appointment order, you may:
As conservator, you may not:
(11) Representative payee.
If an agency, such as the Veteran's Administration or the Social Security Administration, pays benefits to your ward and your ward is found by a court to be incapacitated, the agency must appoint a representative payee to receive the payments. This appointment is separate from the court-appointed guardianship and conservatorship. If you wish to serve as the representative payee, you must apply to the agency that provides the benefits. In most cases, the agency will appoint the court-appointed guardian or conservator as representative payee. The agency providing the benefits has the authority, however, to appoint any person it chooses to be the ward's representative payee. Once appointed by the agency, the representative payee has the authority to receive and handle the benefits for your ward.
(12) Criminal penalties.
You may be found criminally liable for financially exploiting or physically or emotionally abusing your ward. While there are many laws that govern the conduct of a person in a fiduciary relationship, you should especially be aware of the following criminal penalties under Utah law. Consult your lawyer to answer your specific questions.
(a) Abuse or neglect of a vulnerable adult.
A person who causes a vulnerable adult to suffer harm, abuse or neglect; or, having the care or custody of a vulnerable adult, causes or permits that adult's person or health to be injured, abused, or neglected, or causes or permits a vulnerable adult to be placed in a situation where the adult's person or health is endangered, is guilty of abuse of a vulnerable adult.
(b) Exploitation of a vulnerable adult.
A person commits the offense of exploitation of a vulnerable adult when the person:
(i) is in a position of trust and confidence, or has a business relationship, with the vulnerable adult or has undue influence over the vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds, credit, assets, or other property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the adult's property, for the benefit of someone other than the vulnerable adult;
(ii) knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, or assists another in obtaining or using or endeavoring to obtain or use, the vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of his property for the benefit of someone other than the vulnerable adult;
(iii) unjustly or improperly uses or manages the resources of a vulnerable adult for the profit or advantage of someone other than the vulnerable adult;
(iv) unjustly or improperly uses a vulnerable adult's power of attorney or guardianship for the profit or advantage of someone other than the vulnerable adult;
(v) involves a vulnerable adult who lacks the capacity to consent in the facilitation or furtherance of any criminal activity; or
(vi) commits sexual exploitation of a vulnerable adult.
(c) Reporting abuse, neglect or exploitation of a vulnerable adult.
Any person who has reason to believe that a vulnerable adult has been abused, neglected or exploited shall immediately notify the nearest peace officer, law enforcement agency, or Adult Protective Services within the Department of Human Services, Division of Aging and Adult Services. Anyone who makes that report in good faith is immune from civil and criminal liability. A person who is required to report suspected abuse, neglect, or exploitation of a vulnerable adult and who willfully fails to do so is guilty of a class B misdemeanor.
Any person who has reason to believe that a ward is being physically or emotionally abused, or financially exploited, should report the abuse to Adult Protective Services at 801-264-7669 (in Salt Lake County), or 1-800-371-7897 (throughout Utah). In case of an emergency, call local law enforcement or 911.
(d) Theft.
A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him of it.
(e) Unlawful dealing of property by a fiduciary.
A person is guilty of unlawfully dealing with property by a fiduciary if he deals with property that has been entrusted to him as a fiduciary - in a manner which he knows is a violation of his duty and which involves substantial risk of loss or detriment to the owner or to a person for whose benefit the property was entrusted.
A person acting as a fiduciary is guilty of unlawfully dealing with property by a fiduciary if, without permission, he pledges as collateral for a personal loan, or as collateral for the benefit of some party, other than the owner or the person for whose benefit the property was entrusted, the property that has been entrusted to the fiduciary.
(13) Resources.
(a) Adult Protective Services.
801-264-7669 (in Salt Lake County), or 1-800-371-7897 (throughout Utah). In case of an emergency, call local law enforcement or 911.
(b) Aging services.
Division of Aging and Adult Services, State of Utah, Department of Human Services, 801-538-3910, or www.daas.utah.gov. The Division of Aging can give you information about your local area agency on aging.
(c) Guardianship services.
Office of Public Guardian, State of Utah, Department of Human Services, 801-538-8255
(d) Legal resources.
Utah State Bar: www.utahbar.org, or 801-531-9077 Utah Legal Services, 801-328-8891 or 1-800-662-4245
(e) Court website.
Resources are listed on the court's website at: www.utcourts.gov.
The court website links to the statutes and rules we have mentioned.
(14) Terms to know.