TITLE 33
Probate practice and procedure

CHAPTER 33-15
Limited Guardianship and Guardianship of Adults

SECTION 33-15-4


§ 33-15-4 Limited guardianship.

(a)(1) Absent a finding, based on a decision making assessment tool, that an individual is totally incapacitated, the court shall limit the scope of the powers and duties of a guardian to the terms best suited to allow the individual found partially incapacitated to participate as fully as possible in decisions affecting him or her. One such decision making assessment tool must be completed by the respondent's primary care physician, if one exists and is available, otherwise by a physician who has examined and treated the respondent. The probate court may consider such additional decision making assessments tools signed and submitted by one or more non-physicians or consulting physicians. The court shall not appoint a guardian or limited guardian if the court finds that the needs of the proposed ward are being met or can be met by a less restrictive alternative or alternatives. The court shall authorize the guardian to make decisions for the individual in only those areas where the court finds, based on one or more decision making assessment tools, that the individual lacks the capacity to make decisions. The court must strike a delicate balance between providing the protection and support necessary to assist the individual and preserving, to the largest degree possible, the liberty, property and privacy interests of the individual. The certificate of appointment issued to the limited guardian shall clearly state that it is a limited guardianship. The court order shall clearly indicate the scope of the powers and duties of the limited guardian. The appointment of a limited guardian shall not constitute a finding of legal incompetence. An individual for whom a limited guardian is appointed shall retain all legal and civil rights except those which have been specifically suspended by the order.

(2) A decision-making assessment tool, in the form as shown in § 33-15-47, must be filed with the petition in each case, provided, that the probate court may excuse the filing of a decision-making assessment tool only on a petition for temporary guardianship in extraordinary or emergency circumstances and upon the provision of other competent evidence.

(3) The individual's primary care physician must complete the decision-making assessment tool, however, if the individual's primary care physician is not available or if the individual does not have a primary care physician the decision-making assessment tool must be completed by a physician who has examined and treated the individual. Professionals, or other persons acquainted with the individual being assessed, may also complete additional decision-making assessment tools.

(4) Modification. If, because of a change in the partially incapacitated individual's level of decision making ability, the scope and duties of the limited guardianship order no longer meet the needs of the individual and/or fail to afford the individual as much autonomy as possible, modification of the limited guardianship order is required.

(i) Modification can be accomplished by agreement of: the partially incapacitated individual, his or her counsel, if any and the limited guardian. This agreement shall be submitted to the court and entered as an order.

(ii) Where no agreement can be reached, among these parties any or all of the parties may request a hearing.

(b) However, provisions of this chapter shall not be construed to mean a person is in need of a guardian or limited guardian solely because he or she is being furnished or relies upon treatment by spiritual means through prayer alone in accordance with the tenets and practices of a church or religious denomination recognized by the laws of this state.

History of Section.
(P.L. 1992, ch. 493, § 4; P.L. 1994, ch. 359, § 1; P.L. 1996, ch. 110, § 9; P.L. 2004, ch. 573, § 1; P.L. 2007, ch. 417, § 1.)