Guardianship of a Minor

This page is about appointing a guardian for a child. It focuses on when everyone agrees on the guardian. It does not include information or forms for when people do not agree about appointing a guardian.

For information about child protection by the juvenile court, see the Child Protective Orders and Child Welfare pages.

Introduction

A guardian of a minor is:

• a responsible person 18 years old or older who is not a child's parent
• responsible for the physical care and custody of the child and for virtually all decision making, including health care, education, residence, social and other activities, and financial matters.

The power of a guardian could be limited by a court.

The power of a guardian is called guardianship. The guardian can get this power by being nominated or by filing court papers asking for guardianship.

Sometimes a minor under a guardianship is called a ward. They might also be called a protected person.

Are you trying to get guardianship over your grandchild or another family member? You might want to consider contacting Grandfamilies. They help families by offering support groups and referrals to other resources.

Alternatives to Guardianship

There are other possible court orders or legal methods for caring for a minor child if the parents do not have custody of the child.

Power of Attorney

Sometimes, a child may need to be in the temporary custody of someone other than their parents. A parent, or even a court-appointed guardian, may delegate their legal decision-making authority to another adult for up to six months by executing a power of attorney. This type of power of attorney is described on the Power of Attorney: Delegating a Parent's or Guardian's Powers to an Attorney-in-Fact page.

Conservatorship of a Minor Child

Utah Code section 75-5-401 permits the district court to appoint a conservator for a minor if:

• the minor owns property that requires management or protection which cannot otherwise be provided;
• the minor's business affairs may be jeopardized; or
• a conservator is needed to obtain or provide funds for the minor's support and education.

Often a conservator is needed if the minor is about to receive an inheritance, government benefits, insurance or annuity benefits or damages as a result of a civil lawsuit. Sometimes a parent may need to be appointed their child's conservator. For information and forms, see our web page on conservatorship of a minor.

Juvenile Court Orders

In a child welfare proceeding, the Juvenile Court has jurisdiction to enter orders of temporary or permanent custody, guardianship, and termination of parental rights. Otherwise, custody disputes between a child's parents are heard in divorce or parentage cases in district court. See our web page on child custody.

School-Based Guardianship

A local school board can choose an adult in the district to be a child's guardian. This is if the child's parent doesn't live in the state. The school board must follow the requirements in Utah Code section 53G-6-303. If you want the school board to make someone a guardian, contact your local school.

Are you trying to enroll a minor in school? If the minor lost their own housing and is now living with other people, you might not need a guardianship. Grandfamilies has information on school enrollment in these situations.

Adoption

Sometimes the parental rights of a child's legal parents are terminated by the court or by the parents' consent to an adoption of the child. Adoption occurs only by court order and is a different proceeding than guardianship. Adoptions may occur in juvenile or district court. Sometimes a stepparent adopts a spouse's child if the child's other parent either consents to the adoption of that parent's rights are terminated. See our web page on stepparent adoption.

Ways to Establish Guardianship

There are several ways to establish guardianship of a minor under Utah law. These include:

• Acceptance by the guardian of a testamentary appointment. The child's parents can nominate a guardian in their will or other written document. The guardian must submit written acceptance with the probate court and provide notice to interested persons according to law.
• Appointment by a local school board.
• Appointment of a guardian in a child welfare proceeding in juvenile court.
• District court appointment. This is the most common court proceeding to obtain a guardianship of a minor. The laws governing guardians of minors in the district court are Utah Code sections 75-5-201 through 212.

Nomination

The parent of a minor child can nominate a guardian or conservator for the child. To be effective, nomination of a guardian or conservator must be in a will or other signed writing. For further information and forms for this type of nomination, see the Nominating a Guardian and Conservator web page.

Asking the Court to Establish Guardianship in District Court

Any adult interested in the minor child's welfare may file a petition in the district court in the county in Utah where the minor child resides or is present.

Are you filing in Utah County?
If yes, you must file your papers with the Provo Courthouse. Deliver your papers to the courthouse or email them to ProvoFiling@utcourts.gov.

The petitioner is usually the person who wants to be the guardian, but the petitioner may request the appointment of some other qualified adult. The court may appoint as guardian any person (other than the child's parents) 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.

A guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship of the minor child. The guardian must provide the court with a current mailing address and contact information.

To create the petition and other required forms, use OCAP (the Online Court Assistance Program).

Obtaining Adult Guardianship over a Minor

Are you looking to obtain adult guardianship over a minor who is at least 17 years and 6 months old? Click below to learn more.

Differences in the Process for Adult Guardianship Over Minor

Generally, a guardianship of a minor ends automatically when the minor turns 18. If you still need guardianship, you would need to apply for guardianship of them as an adult. But you do not have to wait until the minor is 18 to apply. You can ask for guardianship over them when they are at least 17 years and 6 months old. The process is generally the same. But there are some exceptions. Choose one of the options below to learn more.

Report Required by Doctor or Psychologist

A petition for guardianship must include a written report of an evaluation of the minor by a physician or psychologist acting within her or his scope of practice. The report must include:

• a specific description of the physical, psychiatric, or psychological diagnosis of the respondent;
• a comprehensive assessment listing any functional impairments of the respondent and an explanation of how and to what extent these functional impairments may prevent them from receiving or evaluating information in making decisions or in communicating informed decisions, with or without assistance;
• an analysis of the tasks of daily living the respondent is capable of performing independently or with assistance;
• a list of the medications the respondent is receiving, the dosage of the medications, and a description of the effects each medication has on their behavior;
• a prognosis for improvement in the respondent's condition and a recommendation for the most appropriate rehabilitation plan or care plan; and
• other information the physician or psychologist considers appropriate.

Lawyer Required for the Minor

If the petition is for guardianship of an adult for someone who is 17 years and 6 months old, a lawyer is usually required. The lawyer would be for the minor, or respondent.

The respondent's lawyer represents the respondent in the traditional sense as an advocate for the respondent.

If the respondent has not chosen a lawyer, the court must appoint one. The court may need to continue the hearing until the respondent has a lawyer. The respondent will usually have to pay for the lawyer unless the petition is without merit or if the respondent and the respondent's parents are indigent. Some lawyers have volunteered to represent respondents in guardianship proceedings through the Guardianship Signature Program. The petitioner or respondent may request a lawyer under this program. To request a lawyer under this program, complete a Request to Appoint an Attorney to Represent the Respondent and an Order, found in the Forms section below.

According to Utah Code Section 75-5-303(5)(d), the court may waive the requirement of a lawyer for the respondent if:

• the respondent is the biological or adopted child of the petitioner;
• the value of the respondent’s entire estate does not exceed $20,000 as established by the petitioner’s affidavit in accordance with Utah Code Section 75-3-1201;
• the respondent appears in court with the petitioner;
• the respondent is given the opportunity to communicate, to the extent possible, his or her acceptance of the appointment of petitioner,
• the court has tried to appoint an attorney for 60 days, but no attorney from the court's list of attorneys who have volunteered to represent respondents is able to provide counsel,
• the court is satisfied that counsel is not necessary to protect the respondent's interests, and
• the court appoints a visitor as described in Utah Code Section 75-5-303(4).

When to File

Anyone asking to be guardian of a respondent who will soon be an adult can do so if the respondent is at least 17 years and 6 months old. If the court grants the guardianship, it becomes effective on the day the respondent turns 18. Utah Code 75-5-317(2).

Fees

The required documents are filed at the district court. At the time of filling, the petitioner must pay the filing fee. If they cannot pay the filing fees, they may file a motion asking the court to waive the fees.

• If the motion is granted, then they can proceed with the case.
• If the motion is denied, they must first pay the fees before the case can proceed.

See the Fees and Fee Waiver page for more information and forms.

Notice - Interested Parties

Once the documents are filed, the court will typically schedule a hearing. Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor must be given to:

• The minor if they are 14 or older;
• The person who has had the principal care and custody of the minor during the 60 days before the petition was filed;
• Any living parent of the minor;
• Any guardian appointed by the will or written instrument of the parent of the minor who died last;
• The school district in which petitioner resides, if the child is of school age. A representative of the school district may participate in the hearing.

Utah Code Section 75-1-401 governs notice in this type of court proceeding.

The court provides notice of the hearing to the parties, but the petitioner must provide the names and addresses of the interested parties to the court in the petition.

If a petitioner does not have the addresses for the interested parties who must receive notice, the petitioner may ask the court to allow for alternative service of the notice. For information and forms, see the Motion for Alternative Service page. In addition, the judge may make other orders about notice to interested parties.

Private Information Record

The guardian must file a Required Private Information Record form before the court enters an order of appointment. The form asks for contact and other information about the guardian and the minor, contact information for the guardian's next of kin, and school information for the minor.

The guardian must make sure the court always has the guardian's current contact information. The guardian may call the court that handled the guardianship case to notify it about any changes, or may file an updated Private Information Record with the court.

The form is available in the Forms section

Objecting to the petition

Any person served with notice of a guardianship petition may object. This can be done by filing a written objection before the hearing, or raising the objection at the hearing orally. An oral objection must be followed up with a written objection within 7 days.

If an oral objection is made but there is no written objection within 7 days the petitioner can ask the court to proceed with the original petition by filing a Request to Submit for Decision.

If a party files an objection in a guardianship, conservatorship or other probate case, the parties must attend mediation to try to resolve the issues before the case can move forward. Code of Judicial Administration Rule 6-506. See the Alternative Dispute Resolution in Probate Cases web page for more information.

If an objection is filed in a guardianship, conservatorship or other probate case, the parties must share certain information with each other. See the Initial Disclosures web page for more information about the requirements.

Other Documents to File

If any of the following are required in a specific guardianship proceeding, the petitioner should try to file the documents along with the petition. Otherwise, the documents should be filed before the scheduled hearing. If they are not filed before the hearing, the hearing may be rescheduled or the court may not be able to appoint the guardian.

• If the minor is 14 or older, the court shall appoint a person nominated by the minor, unless the court finds the appointment contrary to the minor's best interests. The petitioner should file the minor's written nomination or consent with the petition.
• If the minor child's legal parents are alive and consent to the guardianship, then the petitioner should try to get the written consents from both parents.
• If a legal parent is dead, then the petitioner should file a copy of that parent's death certificate.
• If a legal parent's parental rights have been terminated by court order, then the petitioner should file a copy of that court order.
• If there is some other court order that affects the custodial rights of the legal parent, then the petitioner should file a copy of that court order.
• If the legal parent's parental rights have otherwise been suspended and the petitioner is unable to get that parent's written consent to the guardianship, then the petitioner should file a written statement or affidavit explaining the parent's circumstances to the court and attach any written evidence about the parent's circumstances.
• If the minor is older than 11, the petitioner must obtain and file with the court a certificate from the local police authority in the jurisdiction where minor has lived during past 2 years stating that there have been no criminal charges filed against the minor and the minor is not the subject of a criminal investigation in that jurisdiction. A copy of the certificate should also be given to the superintendent of the school district in which the minor would attend school in Utah.
• If the minor is older than 11, the petitioner should provide a release by or on behalf of the minor to the superintendent of the school district in which the minor would attend school in Utah within a reasonable time prior to the hearing allowing the superintendent full access to all criminal records of the minor in those jurisdictions outside the state where minor has resided for past 2 years.

Pre-appointment test

Utah Rule of Judicial Administration 6-501 requires that, before a person can be appointed as guardian, the person must take a test about their authority and responsibilities and file a Certificate of Completion with the court.

The test is not meant to screen anyone out of their role as guardian; it is meant to reinforce some of the responsibilities of the office. It is permitted to complete the test before appointment and file the form with the petition.

Hearing

Typically, the court will set a date for a hearing when the petition is filed. This hearing is not a trial with testimony by witnesses, although the judge may ask questions.

The petitioner, proposed guardian (if different from the petitioner), and the minor child should attend the scheduled hearing. At the hearing, the court determines whether:

• A qualified person seeks appointment as guardian;
• The person seeking guardianship has completed, if necessary, the test and filed certification of completion;
• Venue is proper because the case is in the county in Utah where the minor resides or is present;
• Required notices have been sent or waived;
• Parental rights of custody have been terminated or suspended by circumstances or prior court order;
• The appointment of a guardian is in the best interests of the minor child;
• If minor is 14 or older, the minor has consented to or nominated the guardian;
• The required school certifications (for children older than 11) have been filed; and
• Whether there are any objections to the guardianship.

Unless someone objects to the petition, the judge will appoint the guardian at the hearing. If there is an objection, the case may be referred to mediation or set for trial at which the petitioner will have to prove the claims made in the petition.

The court also has the authority to:

• dismiss proceedings and make any other disposition of the matter that best serves the interests of the minor;
• appoint a temporary guardian whose authority may not last longer than 6 months; or
• appoint an attorney to represent the minor.

The court could deny the appointment of a guardian for a minor 11 or older if:

• after consideration of relevant evidence, the minor's behavior indicates an ongoing unwillingness to abide by applicable law or school rules; or
• the school district proves that the main reason for the request to appoint a guardian is to avoid paying the tuition the school district may assess against a non-resident. The court may award the petitioner's attorney fees and costs if the court finds that the school district's arguments lack a reasonable basis in law or fact.

For more information about how to represent yourself at the hearing, see our page on Going to Court.

Lawyer for the Minor

The judge may appoint a lawyer to represent the minor if at any time s/he determines that the interests of the minor child are, or may be, inadequately represented. In such proceedings, the court may give consideration to the preference of the minor if the minor is 14 or older.

Order and Letter of Guardianship

If the judge finds that the welfare and best interests of the minor will be served by the guardianship, s/he will sign a court order appointing a guardian. The court's order will describe the guardian's authority and any limitations.

The court will also issue a letter of guardianship, which shows the guardian's authority to make decisions for the minor. The guardian will need to provide a copy of the letter to third parties, such as the minor's school or healthcare provider. The guardian should have the court certify at least one copy of the letter. Additional certified copies are available upon request and payment of the required fee.

Responsibilities of the Guardian

A guardian has the following duties and responsibilities, unless they are limited by court order:

• All powers of a parent, including the authority to facilitate education, social, other activities and authorize medical or other professional care, treatment, or advice;
• Provide for the care, comfort, and maintenance of the minor;
• Consent to marriage if court authorized to do so;
• Consent to adoption, but only if specifically authorized by the court to give this consent and the parents' rights have not been terminated. Otherwise, if a parent consents to the adoption of the minor child, the guardian must receive notice and has the ability to intervene in the adoption; and
• Handle financial and legal matters for the benefit of the minor.

A guardian is not liable for the minor's finances and may not use the minor's money for compensation unless the court approves.

The guardianship status continues until the guardianship is terminated or the guardian isremoved or resigns.

Reporting Requirements

Inventory

A newly-appointed guardian must file with the court an inventory report with the court within 90 days of being appointed. This report must be served on all interested parties.

Annual Status Report and Financial Accounting Report

Each year on the anniversary of being appointed guardian, the guardian must file with the court an annual report on the condition of the minor (annual status report) and the minor's finances (financial accounting report). These reports must be filed within 60 days of the anniversary of appointment and must be served on all interested parties.

Final Accounting Report

If the guardianship is terminated, the guardian must file with the court a final accounting report.

Deadlines

The deadlines for the reports are: