§ 75-5-303 — Procedure for court appointment of a guardian of an incapacitated person.

(1) An allegedly incapacitated person or any person interested in an allegedly incapacitated person's welfare may petition for a finding of incapacity and appointment of a guardian.
(2) (2)(a) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity.
(2)(b) Unless the allegedly incapacitated person has counsel of the person's own choice, the court shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the allegedly incapacitated person, unless the allegedly incapacitated person and the allegedly incapacitated person's parents are indigent.
(2)(c) If the court determines that the petition is without merit, the attorney fees and court costs shall be paid by the person filing the petition.
(2)(d) If the court appoints the petitioner or the petitioner's nominee as guardian of the incapacitated person, regardless of whether the nominee is specified in the moving petition or nominated during the proceedings, the petitioner shall be entitled to receive from the incapacitated person reasonable attorney fees and court costs incurred in bringing, prosecuting, or defending the petition.
(3) The legal representation of an allegedly incapacitated person by an attorney shall terminate upon the appointment of a guardian, unless:
(3)(a) there are separate conservatorship proceedings still pending before the court subsequent to the appointment of a guardian;
(3)(b) there is a timely filed appeal of the appointment of the guardian or the determination of incapacity; or
(3)(c) upon an express finding of good cause, the court orders otherwise.
(4) (4)(a) The court may appoint a health care provider, as that term is defined in Section 75A-3-101, to examine the functional capabilities and limitations of the allegedly incapacitated person.
(4)(b) An appointed health care provider shall submit to the court a report assessing, within the scope of the health care provider's license and experience, the functional capabilities and limitations of the allegedly incapacitated person to, with or without appropriate technological assistance:
(4)(b)(i) receive and evaluate information;
(4)(b)(ii) make and communicate decisions; and
(4)(b)(iii) provide for necessities such as food, shelter, clothing, health care, or safety.
(5) (5)(a) The court may appoint a court visitor to:
(5)(a)(i) interview the person seeking appointment as guardian;
(5)(a)(ii) visit the present place of abode of the allegedly incapacitated person and the place it is proposed that the allegedly incapacitated person will be detained or reside if the requested appointment is made; or
(5)(a)(iii) conduct other investigations or observations as directed by the court.
(5)(b) The court visitor shall submit a written report to the court.
(6) (6)(a) The allegedly incapacitated person shall be present at the hearing and see or hear all evidence bearing upon the person's condition.
(6)(b) The court may only waive the presence of the allegedly incapacitated person if all of the following criteria are met:
(6)(b)(i) the person is represented by an attorney;
(6)(b)(ii) a court visitor is appointed to investigate, the costs of which shall be paid by the person seeking the guardianship; and
(6)(b)(iii) following the investigation, the court finds that there is no reasonable accommodation that will enable the allegedly incapacitated person to be present for or participate in the hearing.
(6)(c) A court visitor is not required to investigate under Subsection (6)(b)(ii) if there is clear and convincing evidence from a physician that the person alleged to be incapacitated is experiencing a state of extended comatosis that is likely to persist through the time of the hearing.
(6)(d) In addition to the rights described in Section 75-5-301.5, an allegedly incapacitated person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed health care provider and the court visitor, and to trial by jury. The issue may be determined at a closed hearing without a jury if the allegedly incapacitated person or the person's counsel so requests.
(6)(e) Counsel for the allegedly incapacitated person is not required if all of the following criteria are met:
(6)(e)(i) the allegedly incapacitated person is the biological or adopted child of the petitioner;
(6)(e)(ii) the value of the allegedly incapacitated person's entire estate does not exceed $20,000 as established by an affidavit of the petitioner in accordance with Section 75-3-1201;
(6)(e)(iii) the allegedly incapacitated person's appearance at the hearing has not been waived and the person appears in court with the petitioner, as described in Subsection (6)(a);
(6)(e)(iv) the allegedly incapacitated person is given the opportunity to communicate, to the extent possible, the person's acceptance of or objection to the appointment of the proposed guardian, including the opportunity to communicate that acceptance or objection to the court and, as applicable, to the person's supporters, health care providers, and attorney;
(6)(e)(v) no attorney from the state court's list of attorneys who have volunteered to represent respondents in guardianship proceedings is able to provide counsel to the person within 60 days of the date of the hearing, as described in Subsection (2)(b);
(6)(e)(vi) the court is satisfied that counsel is not necessary to protect the interests of the allegedly incapacitated person; and
(6)(e)(vii) the court appoints a court visitor and receives a report from the court visitor under Subsection (5).

Legislative History

Amended by Chapter 310, 2025 General Session; Amended by Chapter 338, 2025 General Session; Amended by Chapter 533, 2025 General Session