Supported Decision Making Agreements

An emerging phrase in the estates and trusts world is that of "supported decision making." The concept of supported decision making is exactly as unremarkable as it sounds and is simply the idea of individuals looking to help from others in making a decision. Hiring a transactional attorney is to seek supported decision making, and many other professional advisors could also qualify as providing decision support.

However, when used in the context of helping individuals with disabilities, supported decision making represents a paradigm shift from protecting such individuals from poor decisions by inserting a surrogate decision maker to act for them to empowering such individuals to make their own decisions, with support from others. See Nina A. Kohn, Legislating Supported Decision-Making, 58 Harvard Journal on Legislation 313 (2021). Accordingly, one specific objective of supported decision making arrangements is to avoid the need for a guardianship.

Utah has introduced legislation specifying the requirements for supported decision making agreements, H.B. 510. Under the law, if passed, such an agreement must, among other things, be in writing, designate a "supporter," describe the principal's rights and how the principal uses supported decision-making to make decisions, define the responsibilities of each supporter, and be notarized. It must also "describe how any perceived or actual conflict of interest between a supporter and the principal will be mitigated."

Supported decision making agreements are nothing more than contracts that have been and will be executed whether or not H.B. 510 or comparable laws in other states are passed. However, the key benefit of H.B. 510 appears to be codifing what constitutes a supported decision making agreement and protecting third parties who rely in good faith on such agreements. It seems that there could be significant overlap in the utility and coverage of supported decision making agreements and limited powers of attorney, but supported decision making agreement legislation may fill coverage gaps and benefit individuals with disabilities.

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Legal Pitfalls for Inexperienced Fiduciaries

As a simple local news search will reveal, criminal charges are regularly brought against fiduciaries who have allegedly breached their fiduciary duties. Criminal charges in the area of estate and trust administration could include unlawful dealing of property by a fiduciary and financial exploitation of a vulnerable adult.

The former is committed when a fiduciary "deals with property that has been entrusted to him as a fiduciary... in a manner which the person knows is a violation of the person's duty and which involves substantial risk of loss or detriment to the owner or to a person for whose benefit the property was entrusted." The latter is committed when anyone, among other things, "unjustly or improperly uses or manages the resources of a vulnerable adult for the profit or advantage of someone other than the vulnerable adult..."

There are obvious examples of cases where a fiduciary admits to using trust funds for personal use and criminal charges are warranted. However, it is not difficult to imagine a scenario where an inexperienced fiduciary has good intentions but doesn't keep a proper accounting or invests trust funds imprudently and a vindictive beneficiary seeks criminal charges.

An inexperienced trustee should clearly be held to account and restore, but there are civil remedies and civil damages available to beneficiaries that seem more appropriate as a first resort. Any fiduciary would be well-advised to seek legal counsel to avoid civil or criminal issues arising from their service.

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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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Co-Fiduciaries in Probate and Planning

The terms of fundamental estate planning documents always include designating a fiduciary in each such document. Specifically, a last will will designate a personal representative of the estate, a power of attorney and health care directive will designate an agent to make decisions during life, and a trust agreement will designate a successor trustee. If an individual does not have a power of attorney or health care directive, a guardianship and conservatorship will sometimes be required, wherein the court will appoint a guardian and/or conservator.

There are obvious benefits in designating multiple co-fiduciaries in any of these situations as opposed to a single fiduciary. Co-fiduciaries can provide a check and a balance on each other and share the burdens of serving in the role. The primary downside is more complexity in carrying out the co-fiduciaries' duties because often multiple fiduciaries will need to act together in signing documents or taking other action.

The terms of the relevant governance document must always specify whether co-fiduciaries can act independently or if they must act together. State law provides default answers in certain circumstances, but it is not always clear or predictable what the default rule is. Utah Code 75-3-716 states that co-personal representatives of an estate generally act by majority vote unless the will provides otherwise, and Utah Code 75-7-703 addresses co-trustees and by default would require the action of both. Utah Code 75-2a-108 also provides for majority vote in the health-care decision-making context.

However, Utah Code 75-9-111 has the opposite default in the case of co-agents under a power of attorney, meaning that each can act independently unless the governing document provides otherwise. The comments to the Uniform Probate Code indicate that some questions as to whether co-fiduciaries must act together were deliberately left to state law, and in Utah anyway, it is unclear what the default rule is in the case of co-guardians and co-conservators. Best practices clearly require the governing document or court order to specify whether co-fiduciaries can act independently or whether they must act together.

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Utah Declaration for Mental Health Treatment

The Utah Advance Health Care Directive Act, among other things, allows an individual to sign an Advance Health Care Directive and appoint an agent to make health care decisions on their behalf. However, "[a]n adult's current health care decisions, however expressed or indicated, always supersede an adult's prior decisions or health care directives." This raises the question as to how an agent or medical professional can help someone who is refusing necessary care or otherwise acting contrary to their best interests.

A common course of action in this scenario is to seek guardianship, possibly on an emergency basis, over the person who is acting contrary to their own best interests. However, this can be an expensive, invasive, and time-consuming process that may lead to a court dismissal of the guardianship or a guardianship that unduly restricts the protected person's rights.

One alternative that is worth considering in Utah for anyone with mental health struggles is a Declaration for Mental Health Treatment. The key difference between this declaration and an Advance Health Care Directive is that a Declaration for Mental Health Treatment may not be revoked if the principal is considered incapable of making mental health treatment decisions by two physicians. In such a scenario, a declaration allows the declarant's agent to make decisions about mental health treatment as expressed in the declaration even if the declarant expresses contrary preferences or attempts to revoke the declaration.

For an excellent article on psychiatric advance directives like Utah's Declaration for Mental Health Treatment, see Mental Health Directives in Estate-Planning Engagements in Trusts & Estates by Moira S. Laidlaw. Such directives are an important tool that strikes a balance between the potential inefficacy of an Advance Health Care Directive and the overbearing nature of a guardianship for individuals experiencing an acute psychiatric episode.

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Utah's Guardianship Bill of Rights

According to the American Bar Association, "Since 2015, at least 18 states have passed legislation to focus on the rights of individuals under guardianship, while others with existing laws have modified and strengthened those laws." Utah was added to this list earlier this year when H.B. 320, the Guardianship Bill of Rights, was passed and signed into law.

The Guardianship Bill of Rights "addresses the rights of a person alleged to be incapacitated with respect to a guardianship" and also "addresses the rights of an incapacitated person with respect to a guardianship." While it was always clear that an adult person alleged to be incapacitated had a right to be represented by an attorney prior to having a guardian appointed, that right was less clear after having been declared incapacitated and having a guardian appointed. After all, is a person under full guardianship legally capable of retaining an attorney?

The Guardianship Bill of Rights specifies that "an incapacitated person for whom a guardian is appointed has [the] right to... have counsel represent the incapacitated person at any time after the guardian is appointed." This is an important clarification that will help prevent guardianship abuse.

Another important right that persons under guardianship have is to "receive telephone calls and personal mail and associate with relatives and acquaintances." This section works with Utah Code 75-5-312.5 to help address the "anecdotal evidence... that guardians, either well-meaning or for personal gain, have restricted the protected person’s access to their family..." The Guardianship Bill of Rights is an important law that provides meaningful protection for vulnerable individuals.

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Utah Adult Guardianship Appointment Procedures

Individuals who have executed an advance health care directive and power of attorney are far less likely to need a court-appointed guardian or conservator. However, those who did not execute such forms while they had capacity, and sometimes even those who have executed such forms, may need a guardianship and conservatorship. Below are the minimum requirements in securing a guardianship and conservatorship in a common scenario where a child of an elderly, incapacitated parent seeks guardianship and conservatorship over the parent. The following procedures assume that the parent is unmarried with no living parents, one of their children seeks appointment without objection from a sibling, and the incapacitated person attends the guardianship hearing and requires a full guardianship:

1. The first step is to gather the necessary information and documentation needed for the Petition for Guardianship and Conservatorship. The Utah Courts website provides a form on its website, but the form is for a petition for guardianship only. The Utah Online Court Assistance Program (OCAP) has forms for a guardianship and conservatorship.

2. Individuals who will be subject to a guardianship need to be represented by an attorney, so the next step is to identify such an attorney. Many attorneys in Utah will charge a modest fee to represent an incapacitated person needing a guardianship; alternatively, the Guardianship Signature Program seeks to provide free attorneys for indigent incapacitated persons. To ask the court to appoint an attorney for the incapacitated person, prepare a Request to Appoint, Order Appointing Attorney, and Request to Submit for Decision.

3. All proposed guardians and conservators are required to review the Guidelines for Guardians and Conservators and take the accompanying Pre-Appointment Test. The proposed guardian will then need to sign a Declaration of Completion for filing with the court.

4. Prepare the other necessary court documents, which include an Acceptance of Appointment, whereby the guardian accepts the fiduciary role and subjects themselves to Utah law, a Cover Sheet, a private Information Sheet, a proposed Guardianship Order, and Letters. (Note that the linked Order and Letters do not include a conservatorship; see the OCAP program linked above for more comprehensive forms).

5. File the Cover Sheet, Petition, Acceptance, Declaration of Completion, and appointment forms for the incapacitated person's attorney. A doctor's letter or evaluation of the proposed ward's capacity must also be filed with the court. The court should sign the Order Appointing Attorney to represent the ward, schedule a hearing, and send notices of the hearing to all of the interested persons listed with the Petition. The attorney for the ward can agree to accept service of the Petition on behalf of the ward.

6. Five days prior to the hearing, file the proposed Guardianship Order and Letters with the court. Also prior to the hearing, ensure that the proposed ward has had the opportunity to meet with his or her court-appointed attorney. At the hearing, the judge will likely ask to hear from the proposed guardian and conservator, the incapacitated person, and the incapacitated person's attorney. Assuming that no one objects and all of the aforementioned documents have been properly completed and filed, the court is likely to appoint the proposed guardian and conservator. 

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