Standby Guardianship - Utah

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Who Can Nominate a Standby Guardian

Citation: Ann. Code §§ 75-5-202; 75-5-202.5; 75-5-203; 75-5-204

The parent of a minor may appoint a guardian of an unemancipated minor by will, as provided in this section, or by other written instrument designating the guardian.

Any person interested in the welfare of a minor or a minor age 14 or older may file with the court in which the will is probated or the written instrument is filed a written objection to the appointment before it is accepted or within 30 days after notice of its acceptance. An objection does not preclude, after a hearing on the objection, appointment by the court in a proper proceeding of the testamentary or instrumental nominee, or any other suitable person.

The court may appoint a guardian for an unemancipated minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order. A guardian appointed by will or by written instrument whose appointment has not been prevented or nullified under § 75-5-203 has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment upon a finding that the testamentary or instrumental guardian has failed to accept the appointment within 30 days after notice of the guardianship proceeding.

How to Establish a Standby Guardian

Citation: Ann. Code § 75-5-202

Subject to the rights of the minor and others under § 75-5-203, an appointment by will or written instrument becomes effective upon filing the guardian's acceptance in the court in which the will is probated or the document is filed if, before acceptance, both parents are dead or the surviving parent is adjudged incapacitated.

How Standby Authority is Activated

Citation: Ann. Code §§ 75-5-202.5; 75-5-206; 75-5-208

An appointment by written instrument becomes effective when the written instrument is filed with the petition for appointment of guardian in the court having probate jurisdiction in the county of residence of the last parent to die, if death occurred in the State, and otherwise in the court having probate jurisdiction in the county in which the minor resides in the State. The person appointed as guardian must file in the court having jurisdiction an affidavit of acceptance. Upon acceptance of an appointment, written notice of acceptance shall be given by the guardian to the minor, if he or she is age 14 or older, and to the person having his or her care or to his or her nearest adult relative.

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. In determining the minor's best interests, the court may consider the minor's physical, mental, moral, and emotional health needs. The court shall appoint a person nominated by the minor if the minor is age 14 or older, unless the court finds the appointment contrary to the best interests of the minor.

By accepting a testamentary, instrumental, or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person or any person interested in the welfare of the minor. Letters of guardianship shall indicate whether the guardian was appointed by will, written instrument, or by court order.

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code § 75-5-209

A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent€„¢s unemancipated minor. A guardian of a minor is empowered to do the following:

  • Facilitate the ward's education, social activities, or other activities
  • Authorize medical or other professional care, treatment, or advice
  • Consent to the marriage of the ward, if specifically authorized by a court to give this consent
  • Consent to the adoption of the ward, if the guardian is specifically authorized by a court to give this consent and parental rights of the ward's parents have been terminated

A parent of a minor for whom a guardian is appointed retains residual parental rights and duties. If a parent of a minor for whom a guardian is appointed consents to the adoption of the minor, the guardian is entitled to receive notice of the adoption proceeding, intervene in the adoption, and present evidence to the court relevant to the best interests of the child.

If a minor for whom a guardian is appointed is adopted subsequent to the appointment, the guardianship shall terminate when the adoption is finalized.

Withdrawing Guardianship

Citation: Ann. Code §§ 75-5-210; 75-5-212

A guardian's authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the minor's death, adoption, marriage, or attainment of majority. Resignation of a guardian does not terminate the guardianship until it has been approved by the court.

Any person interested in the welfare of a ward, or the ward, if age 14 or older, may petition for removal of a guardian on the grounds that removal would be in the best interests of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.

After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.