Petition for Essential Treatment and Intervention

As I discussed in a prior post, completing a Declaration for Mental Health Treatment can be a useful way for someone with drug abuse or mental health challenges to provide for their own care if they reach a point where they can no longer care for themselves. If a Declaration is not completed, and the person becomes at risk of harming themselves or others, seeking an emergency guardianship from a court may be considered. Such motions can be ex-parte, meaning that no notice or hearing is required, and if granted, an emergency guardianship lasts for 30 days.

A third option, however, for cases of drug abuse, is known as a Petition for Essential Treatment and Intervention, which became available in 2017 pursuant to Utah Code 62A-15-1201. This law was passed to "address the serious public health crisis of substance use disorder related deaths". The proceeding commences in court when a "relative seeking essential treatment and intervention for a sufferer of a substance use disorder" files a petition with the district court where the sufferer lives.

The petition must identify a treatment facility where the sufferer may receive treatment and a binding commitment on the part of the petitioner to pay for treatment costs. Upon receiving the petition, the court will "set an expedited date for a time-sensitive hearing to determine whether the court should order the respondent to undergo essential treatment for a substance use disorder" and provide notice of the same to the interested parties. Unless the sufferer objects or the court orders otherwise, two essential treatment examiners will examine the sufferer before the hearing and make treatment recommendations to the court. If the court ultimately finds that treatment is required, it can order treatment and subject the sufferer to a warrant of commitment if they do not comply.

A Petition for Essential Treatment and Intervention is confidential, and the Utah Courts website provides all of the necessary forms for individuals who want to proceed without an attorney. While such a petition is not a panacea, it should at least be considered as an alternative to a guardianship.

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Posthumous Common Law Marriage in Utah

In Utah, like many states, marriage-like relationships that were never solemnized can be declared valid by court or administrative order. "A petition for an unsolemnized marriage shall be filed during the relationship... or within one year following the termination of that relationship", which includes termination due to the death of one of the parties. Utah Code 30-1-4.5(2)(a).

A key step in any posthumous common law marriage petition is securing the appointment of a personal reresentative over the decedent's estate because the marriage petition must be served on the personal representative. Gardiner v. Taufer, 2014 UT 56, 342 P.3d 269. A court order of a common-law marriage after death would significantly impact the rights of the natural relatives of the decedent, making a probate proceeding indispensable.

Any petitioner must be prepared to show the court that the petitioner and the decedent (a) were of legal age and capable of giving consent to the marriage, (b) were legally capable of entering a solemnized marriage, (c) cohabited, (d) mutually assumed marital rights, duties, and obligations; and (e) held themselves out as and had acquired a uniform and general reputation as husband and wife. See Utah Code 30-1-4.5(1). Consent to the marriage can be shown by "maintenance of joint banking and credit accounts; purchase and joint ownership of property; the [sharing of a spouse’s] surname by the [other spouse] and/or the children of the union; the filing of joint tax returns; speaking of each other in the presence of third parties as being married; and declaring the relationship in documents executed by them while living together, such as deeds, wills, and other formal instruments." Volk v. Vecchi, 467 P.3d 872, quoting Whyte v. Blair, 885 P.2d 791, 794-795.

There are many reasons to seek a posthumous common law marriage, such as "to claim insurance benefits, retirement benefits, survivor benefits, or public benefits, or to inherit property." The Utah Courts provide a marriage petition form on their website as well as ancillary documents. However, due to the multiple proceedings that may be required and the evidentiary requirements, seeking legal counsel in a marriage petition is strongly advised.

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