Why a Health Care Agent wins a Guardian Every Time

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Guardianship vs. Advanced Health Care Agent in Utah

One key instrument in any estate plan is plan or the documentation designating another person to make medical decisions on your behalf if you are unable to do so or if you are mentally impaired. In order to achieve this legally, an agent needs to be able to act on your behalf. The state of Utah has afforded a person two different ways to accomplish this; a Guardianship or an Advanced Health Care Agent.

Guardian

A guardian is a person or institution appointed by a court to make decisions about the personal well-being (residence, health care, nutrition, education, personal care, etc.) of an incapacitated adult.

Health Care Agent

A Health Care Agent is appointed by an individual (rather than a court) to make health care decisions in the event that the individual no longer has the capacity to do so. The agent should be someone the individual can trust, who knows, understands, and will honor the individual’s preferences, and who will be available if needed.

So What is the Difference?

Fundamentally they work the same way. A person who is a guardian has the same rights and powers over the incapacitated individual (ward) as does the Agent unless the Court limits those powers for some reason. Guardians are appointed by the court (not the person or family) after incapacitation. This is helpful when a person has not prepared health care documents in advance, but may not end up the way an incapacitated individual would have wanted. Health Care Agents are chosen by the individual while an individual has sufficient mental capacity. This allows a person to make decisions well in advance without the need for court appointment.

There is a major difference with respect to timing, speed to decision making, and the execution of the ward’s (incapacitated person) wishes. Everyone who is over 18 has to have either an Health Care Agent, or a Court appointed Guardian in order to have someone make major health care decisions on their behalf. This means that even spouses do not automatically have the legal authority to make these decisions for another without the proper work done.

The process between securing a Guardianship versus appointing an Advanced Health Care Agent are radically different. In order to appoint an agent, you need the proper paperwork drawn up and then have the individual sign the Advanced Health Care Directive in front of two witnesses who are not related or stand to benefit from the death of the individual. This process can be done in a day and would involve only one attorney if any.

In order to get appointed as a Guardian you have to open up a case with the Court by Petitioning the Court to issue the Guardianship. After the Petition, the petitioner (person seeking the guardianship) will have to serve notice on all interested parties (close relatives and the proposed ward), wait for a hearing, and finally go the hearing to have the Court issue the Guardianship. This process if streamlined may take a month, but could take 3 or 4 and potentially years if there are any disputes by the individual or the other relatives. In Utah, the proposed ward will have to have an attorney represent them as well, and there may even be a 3rd party Court Visitor involved if the proposed ward is unable to attend the hearing because of a physical limitation. The Court likes to see Doctor’s reports and can take testimony on the issue prior to issuing the Guardianship. After everything is said and done, the incapacitated person may not want the person chosen to be Guardian to be fill that position or the treatment chosen for him or her.

What if there is both? Who wins?

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In this hypothetical, it might arise that the Advance Health Care Directive was discovered after the Guardianship had already been put in place. Or maybe the Advanced Health Care Agent was privy to the guardianship until the it had already been awarded. If there are disagreements between the Guardian and the Agent, according to Utah Law 75-2a-112(2) the decisions of the Agent trump those of the Guardian unless the Court has ruled differently.

Pay Your Attorney now or Pay for two attorneys later

As you can see the old adage, “an ounce of prevention is worth a pound of cure” holds true to this situation. By appointing a health care agent, not only do you get to choose your Agent, but you also get to tell them how you want to be treated ahead of time so that your treatment can be customized to your specific comfort. If you don’t have a health care directive now, please save you and your loved ones time, money, and headache by scheduling an appointment to get one done today.

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