If you have an aging parent that is no longer able to take care of the decisions regarding their personal and financial life you could be appointed their estate guardian or conservator. An estate guardianship is only put in place if a court has deemed that your adult parents are incapable of making their own responsible decisions, thus appointing a guardian or a conservator. This is a legal relationship that gives you, the guardian or conservator the right to make legal, health care and financial decisions for your parent, the ward.
What is a guardian of property?
A guardianship is the legal arrangement that puts you in the role of guardian or custodian over a person. Your job is to provide for the health and well-being of that person while a conservator is the court-appointed individual that provides for the financial well-being of the protected person.
The process of applying to become a legal estate guardian
In Utah, several legal avenues exist to ensure your parent’s best interests are protected when they become incapacitated.
Whether it’s financial decisions, healthcare directives, or estate management, understanding these options empowers you to act as your parent’s advocate.
1. Power of Attorney (POA)
A POA is a legal document that grants authority to another person, known as an agent, to make decisions on behalf of the principal, your parent. There are two primary types of POA:
- Financial POA: This POA grants the agent authority to manage financial matters, such as paying bills, handling bank accounts, and making investment decisions. Download a Free POA Form Template Here
- Healthcare POA: This POA grants the agent authority to make healthcare decisions on behalf of your parent, including consenting to medical treatments and communicating with healthcare providers. Download a Free POA Form Template Here
Steps to Obtain a POA:
- Discuss with your parent: Have an open and honest conversation with your parent about their wishes and preferences regarding financial and healthcare decisions.
- Select an agent: Choose a trustworthy and reliable individual, such as a family member or close friend, to act as the agent.
- Prepare the POA document: Utilize a standard POA form or consult an attorney to draft a customized POA tailored to your parent’s specific needs.
- Sign and notarize the POA: Both your parent and the agent must sign the POA document, and it must be notarized to be legally binding.
2. Guardianship or Conservatorship
When your parent becomes incapacitated to the point where they cannot make decisions for themselves, a guardianship or conservatorship may be necessary. These court-appointed roles provide legal authority to manage an individual’s personal and financial affairs.
- Guardianship: A guardian is appointed to make decisions related to a minor’s personal well-being, such as education, healthcare, and living arrangements.
- Conservatorship: A conservator is appointed to manage the financial affairs of an incapacitated adult, including paying bills, handling assets, and making investment decisions.
Steps to Establish Guardianship or Conservatorship:
- Petition the court: File a petition with the Utah District Court, outlining the reasons why guardianship or conservatorship is necessary. Access the Utah.gov free forms here
- Provide supporting evidence: Gather medical documentation, witness statements, and other evidence demonstrating your parent’s incapacity.
- Attend a court hearing: Appear in court to present your evidence and answer any questions from the judge.
- Receive court approval: If the court determines that guardianship or conservatorship is warranted, the judge will appoint a guardian or conservator and issue orders outlining their responsibilities.
- Seek legal counsel: Consulting with an experienced estate planning attorney can provide valuable guidance and ensure the legal process is handled correctly.
- Communicate with family: Keep family members informed throughout the process and address any concerns or questions they may have.
- Prioritize your parent’s well-being: Act always in the best interests of your parent and make decisions that align with their wishes and values.
What Exactly is a Petition and How to File it
Filing a petition with the Utah District Court to establish guardianship or conservatorship can be a more complex process than simply filling out, signing, and submitting a document. Here’s a detailed breakdown of the process:
Gathering Information and Preparing the Petition:
- Consult with an Attorney: It is highly recommended to seek legal counsel from an experienced estate planning attorney to guide you through the process and ensure the petition is properly drafted and filed.
- Collect Supporting Documents: Gather medical documentation, such as physician’s reports and psychological evaluations, to demonstrate your parent’s incapacity. Also, gather financial documents, such as bank statements and investment accounts, if applicable.
- Complete the Petition Form: Obtain the appropriate petition form from the Utah District Court’s website or the court clerk’s office. Carefully fill out the form, providing accurate and detailed information about your parent’s situation and the reasons for seeking guardianship or conservatorship.
- Obtain Signatures and Notarization: The petition must be signed by you as the petitioner, your parent as the proposed ward, and any proposed guardians or conservators. The signatures must be notarized to be legally binding.
Filing the Petition:
- Pay the Filing Fee: Determine the applicable filing fee, which varies depending on the petition type, and pay it at the court clerk’s office.
- Submit the Petition: File the completed petition, along with all supporting documents and the filing fee, at the Utah District Court clerk’s office.
- Obtain Filing Confirmation: Upon successful filing, you will receive confirmation from the court clerk, including the case number and the assigned judge.
Post-Filing Procedures and Expectations:
- Scheduling a Court Hearing: The court will schedule a hearing to consider your petition. You will receive notice of the hearing date and time.
- Preparing for the Hearing: Work with your attorney to prepare for the hearing. This may involve gathering additional evidence, preparing witnesses, and practicing your testimony.
- Attending the Court Hearing: Appear in court on the scheduled date and time, accompanied by your attorney if you have one. Present your evidence
Your Responsibilities As a Guardian
- Choosing and maintaining the home of the person you are caring for.
- Providing consent for non-medical and medical services.
- Paying debts and other expenses.
- Making end-of-life decisions (if they don’t already have a directive in place)
- Helping to maintain the protected persons autonomy where possible.
As a Conservator
- Arrange for property appraisals
- Organize, gather and protect assets
- Make payments on their behalf
- Manage income from assets
- Obtain court approval prior to any sale of major assets
- Report to the court on the estate’s status on a regular basis.
- Safeguard property and assets from loss as much as possible.
The same person can be appointed guardian and conservator for a person and their estate in most USA states.
What Specific Financial Duties do I have as Conservator?
When you are put in charge of managing a protected persons property then you need to determine what the person can afford, their accustomed standard of living and any other sources of money to support the protected person, such as Medicaid.
As conservator you will also oversee their debts such as mortgage, credit cards, taxes, utilities, insurance and any other loans or past due bills. Filing yearly income tax returns is also a duty that is overseen by the conservator. For the full law on managing the protected person’s property, click here.
Can I Sell Their Home as Conservator?
If there is not enough money in the persons estate to pay all their expenses then you may need to sell assets, such as a home, to meet the expenses. In this scenario you’ll need to consult with the protected person before selling. Selling a home often means selling or downsizing many of the things in the home and you’ll want to take into account the sentimentality of certain items in the home to the protected person.
When selling an asset keep in mind that the sale could affect the protected person’s eligibility for Supplemental Security Income, Medicaid or other government benefits.
Selling a large asset like a home can also bring income tax or capital gains with consequences. So consulting an accountant or a lawyer who can advise you on the taxes would be an important step.
Finally, as conservator you cannot sell the asset to a family member or friend to give them a special deal or reduced cost. Doing so could make you liable for the balance and could cause you to be removed by the court.
Options For Selling a Home Under Guardianship/Conservatorship
Taking care of an elderly parent who is no longer able to make their own decisions without help is a big job. If you determine that it’s necessary to sell the home to help with the expenses of the estate then you are dealing with the extra challenge of going through a home, preparing it for sale and selling many belongings at the same time.
Oftentimes in a guardianship and conservatorship it makes sense for the protected person to move in with the guardian or to be moved into a facility where they can receive care. In situations like this, holding on to the family home no longer makes sense and can add to the financial burden in terms of care, taxes and upkeep.
Traditionally you would want to clean up a home, prepare it for showing, possibly hire a stager or a realtor to help show the home. You would need to clear out a lot of the clutter and personal belongings that don’t show well and possibly even need to fix up issues with the home that could badly affect a sale.
If dealing with all of that extra work on top of taking care of your parent is just too much to deal with then you might want to consider selling your home to a trusted house buying company like Gary Buys Houses. By selling the home directly to a house buying company you receive a quick cash purchase offer and avoid the costs of repair, marketing, listing and agent commissions. Gary Buys Houses also offers a program we call “Sell Now Move Later.” It’s intended to help in situations where you need to sell the house right away but might not be ready to move right away. We’ll purchase your house “as is” in as little as three business days; and you can stay in the home for 2-3 months while you wrap up the final details of the move and the personal assets in the home.