This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 4

IN THE

SUPREME COURT OF THE STATE OF UTAH

In re G.J.P.

OFFICE OF PUBLIC GUARDIAN,

Petitioner,

v.

The HONORABLE JUDGE JULIE LUND,

Third Judicial District Juvenile Court,

Respondent.

No. 20190733

Heard November 15, 2019

Filed February 5, 2020

On Petition for Extraordinary Relief

Third District, Salt Lake

The Honorable Judge Julie Lund

No. 1153247

Attorneys:

Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen., 

Amy Jackson Leach, Asst. Att’y Gen., Salt Lake City, for petitioner

Brent M. Johnson, Salt Lake City, for respondent

Thomas A. Luchs, Cottonwood Heights, for Mother, J.R.

Martha Pierce, Salt Lake City, Guardian ad Litem for G.J.P.

JUSTICE PEARCE authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
In re G.J.P.

Opinion of the Court

2

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 The juvenile court appointed the Office of Public Guardian 

(OPG) as guardian ad litem for a mother (Mother) in a parental 

rights termination proceeding. OPG did not consent to the 

appointment and does not believe it is the appropriate entity to 

represent Mother. OPG filed this petition for extraordinary relief

contending that the juvenile court lacks authority to appoint a 

guardian ad litem for an adult. OPG also contends that, even if the 

juvenile court has that ability, the court exceeded its discretion by 

appointing OPG. We grant the petition and afford OPG the relief it 

seeks. Although the juvenile court possesses the authority to appoint 

a guardian ad litem for an adult, the juvenile court strayed beyond 

the bounds of its discretion by appointing OPG in this matter.

BACKGROUND

¶2 In August of 2017, Mother was admitted to the University of 

Utah Hospital inpatient psychiatric unit. While hospitalized, she 

gave birth to G.J.P. G.J.P. experienced problems breathing and eating 

and was placed in the neonatal intensive care unit. G.J.P. remained 

hospitalized for several months. After treatment at the University of 

Utah Hospital, Mother was committed to the Utah State Hospital.

¶3 Soon after the birth of G.J.P., and with Mother still in the 

psychiatric unit, the Division of Child and Family Services (DCFS)

began to inquire what it needed to do to ensure G.J.P.’s well-being. 

DCFS met with Mother and G.J.P.’s alleged father, both of whom 

acknowledged, according to DCFS, that they were unable to care for 

the child. DCFS also attempted to help Mother identify appropriate 

family to care for G.J.P., but these efforts, along with DCFS’s 

independent search for family members, did not identify anyone 

who could raise G.J.P.

¶4 DCFS moved for temporary custody of G.J.P., and the court 

granted prehearing custody to DCFS. DCFS also filed a stipulated 

motion to appoint a guardian for Mother. The motion noted 

Mother’s diagnosis and civil commitment and informed the court 

that Mother’s counsel did not believe that Mother understood what 

was happening in the termination proceedings. During hearings on 

DCFS’s motion, the juvenile court questioned whether it had 

jurisdiction to appoint a guardian for Mother.

¶5 Meanwhile, the parties tried, without success, to contact 

Mother’s sister who may have previously served as Mother’s 
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Opinion of the Court

3

guardian. Eventually the juvenile court granted custody to DCFS,

and DCFS placed G.J.P. with foster parents.

¶6 The juvenile court also concluded that it needed to 

determine if it could order reunification services or if Mother’s 

illness rendered her incapable of taking part in those efforts.

Accordingly, the court ordered Mother to participate in two 

psychological evaluations. Following the evaluations, Mother’s 

counsel again moved to appoint a guardian for Mother, noting that 

her illness “renders [Mother] mentally incompetent to assist in her 

own defense and communicate meaningfully with counsel.” The 

State did not object. The court found Mother incompetent, granted 

the motion, and appointed “a public guardian for [Mother].”

¶7 A month and a half later, the juvenile court issued an order

explaining the multiple avenues it had explored to find someone to 

serve as Mother’s guardian. The court reported that the Utah Office 

of Guardian Ad Litem could not represent Mother because its 

representation of G.J.P. created a conflict. The court also recited that 

it could find no relative or friend willing or able to serve. And the 

court noted that it was unaware of any other mechanism it could 

employ to identify and appoint an attorney to act as guardian ad 

litem for Mother. But the juvenile court noted that, under its reading 

of the Utah Code, OPG could petition or agree to represent Mother 

and directed that a representative of OPG appear at the next hearing 

“so that the powers of its office may be further discussed.”

¶8 In response to the juvenile court’s directive, OPG argued 

that it was not a proper entity to represent Mother because OPG’s 

statutorily defined role is narrow and does not generally include 

advising or representing individuals in litigation.1 OPG also argued 

_____________________________________________________________

1 The Office of Public Guardian is a statutorily created entity. See

UTAH CODE §§ 62A-14-101 to -111. Section 105, entitled, “Powers and 

duties of the office,” allows OPG to, among other things, “serve as a 

guardian, conservator, or both for a ward upon appointment by a 

court when no other person is able and willing to do so and the

office petitioned for or agreed in advance to the appointment.” 

Id. § 62A-14-105(1)(a)(ii). OPG generally only serves in the last 

instant when no one else can. Section 75-5-311(3) creates a prioritized 

list of who can serve as guardian—the Legislature places OPG as the 

very last option right after “any competent person or suitable 

institution.” Id. § 75-5-311(3)(i). Even then, the Legislature has 

invested OPG with the ability to decide when it will serve as a 

(continued ...)
In re G.J.P.

Opinion of the Court

4

that the juvenile court was not authorized to find a parent 

“sufficiently incompetent to appoint a guardian for purposes of 

assistance in litigation.” OPG therefore “declin[ed] to file a petition 

on behalf of [Mother].”

¶9 Mother’s counsel replied and claimed that OPG was not 

being asked to advise or represent Mother but to serve as guardian 

ad litem and “make decisions on her behalf which are in her best 

interest.”

¶10 The juvenile court held a hearing where OPG reiterated its 

concerns. Despite those concerns, the juvenile court ordered OPG to 

“represent” Mother.

¶11 OPG moved to set aside the juvenile court’s order, arguing 

again that the juvenile court lacked jurisdiction to appoint a 

guardian for an adult. The court denied the motion reasoning

“[t]here is no person available to serve as a guardian for her” and

“[t]he Office of the Public Guardian can provide a person to serve as 

a guardian for [Mother].”

¶12 OPG filed an interlocutory appeal of the order of 

appointment, and the termination proceeding was stayed. The court 

of appeals certified the appeal to this court. Upon its arrival at this 

court, we dismissed the petition because a non-party may not file an 

interlocutory appeal, but we did so with leave to refile as a petition 

for extraordinary relief. OPG then petitioned for relief. The court of 

appeals certified the petition to this court.

STANDARD OF REVIEW

¶13 A person may petition for extraordinary relief on any of the 

specified grounds under rule 65B of the Utah Rules of Civil 

Procedure only when “no other plain, speedy and adequate remedy 

is available.” UTAH R. CIV. P. 65B(a). “This court has broad discretion 

to grant or deny extraordinary relief.” Gilbert v. Maughan, 2016 UT 

31, ¶ 14, 379 P.3d 1263. In deciding whether to grant a petition we

may consider the “egregiousness of the alleged error, the 

significance of the legal issue presented by the petition, the severity 

_____________________________________________________________

guardian. Section 62A-14-110 instructs that a court cannot appoint 

OPG without its consent. Id. § 62A-14-110(1) (“The office may not be 

appointed as the guardian or conservator of a person unless the 

office petitioned for or agreed in advance to the appointment.”).
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Opinion of the Court

5

of the consequences occasioned by the alleged error,” or any other 

relevant consideration. State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682.

¶14 Whether the juvenile court has authority to appoint a 

guardian ad litem presents a question of law. We review questions of 

law for correctness. See State v. Moreno, 2009 UT 15, ¶ 7, 203 P.3d 

1000. And we review the juvenile court’s decision to appoint a 

specific guardian ad litem for an abuse of discretion. See Hanson v. La 

Flamme, 761 F. App’x 685, 689 (9th Cir. 2019) (applying an abuse of 

discretion standard to review trial court’s decision of who would 

serve as guardian ad litem); Gardner by Gardner v. Parson, 874 F.2d 

131, 139 (3d Cir. 1989) (same).

ANALYSIS

¶15 Before we address the questions OPG presents, we need to 

highlight an issue that raises serious concerns meriting further 

exploration. No one has directly challenged whether the 

appointment of a guardian ad litem in these circumstances violates 

Mother’s due process rights.2 But the guardian ad litem representing 

G.J.P. raised important questions about this issue.

¶16 Citing federal case law, the guardian ad litem argued that 

Mother would be entitled to a hearing if the purpose of the guardian 

was to override Mother’s legal decisions. We understand the 

concern. The juvenile court’s order was somewhat vague on the 

proposed role the guardian ad litem would play, and that left room 

for G.J.P.’s guardian ad litem to legitimately worry that the court had 

authorized the proposed guardian ad litem to make Mother’s 

decisions for her. In addition, Mother’s counsel made repeated 

references in briefing and oral arguments to the proposed guardian 

ad litem making decisions for Mother. See supra ¶ 9. Although these 

concerns lurked amidst the arguments—as did a concern that not 

appointing someone to assist Mother would also violate her due 

process rights—OPG’s petition does not ask us to address these due 

process questions.

¶17 We can see the substantial and important questions that 

may be implicated by the juvenile court’s decision to appoint a 

guardian ad litem, but they are difficult to address in the abstract. 

_____________________________________________________________

2 Similarly, the question of whether the juvenile court correctly 

determined whether Mother needs a guardian ad litem is not before 

this court.
In re G.J.P.

Opinion of the Court

6

The calculus could change if the juvenile court envisioned a 

guardian ad litem who would “sit next to [M]other and answer her 

questions,” as OPG asserts the juvenile court explained at one point,

instead of a guardian ad litem expected to, as Mother’s counsel 

asserted, make Mother’s decisions for her. The power of a guardian 

ad litem, depending on how the role is defined, may have significant 

effects on an incompetent person’s rights and the due process that 

should be afforded before a court infringes those rights.

¶18 Courts have recognized that “[t]here is something 

fundamental in the matter of a litigant being able to use his personal 

judgment and intelligence in connection with a lawsuit affecting 

him, and in not having a guardian’s judgment and intelligence 

substituted relative to the litigation affecting the alleged 

incompetent.” Graham v. Graham, 240 P.2d 564, 566 (Wash. 1952). 

Indeed, the Fifth Circuit has held that declaring someone 

incompetent and appointing a guardian ad litem implicates a 

“protected liberty interest” and the due process requirements of the 

Fifth Amendment. Thomas v. Humfield, 916 F.2d 1032, 1033 (5th Cir. 

1990) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). 

“The appointment of a guardian ad litem deprives the litigant of the 

right to control the litigation and subjects him to possible 

stigmatization.” Id. at 1034 (italics in original). Furthermore, “[t]he 

interposition of a guardian ad litem could very well substitute his 

judgment, inclinations and intelligence for an alleged 

incompetent’s,” and “the retention of legal counsel or the 

employment of a different attorney could be determined solely by 

the guardian ad litem . . . .” Graham, 240 P.2d at 566.

¶19 We also note that Utah Rule of Civil Procedure 17(b) 

instructs that a “guardian ad litem may be appointed in any case 

when it is deemed by the court in which the action or proceeding is 

prosecuted expedient to represent the minor, insane or incompetent 

person in the action or proceeding . . . .” Our rules authorize courts 

to appoint a guardian ad litem but provide no guidance as to the role 

that the guardian ad litem can or will play in the litigation.

¶20 Moreover, rule 17(b) delineates no safeguards a court 

should employ before appointing a guardian ad litem for an

allegedly insane or incompetent person. Because these issues are not 

before us in this petition, we are not in a position to opine on the due 
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Opinion of the Court

7

process to which Mother may be entitled should the juvenile court 

seek to appoint a different guardian ad litem on remand.3

¶21 Additionally, before we reach the merits of OPG’s 

contentions, because of some confusion in the juvenile court’s order 

and some cross-talk in the briefing, we believe it helpful to clarify

what we talk about when we talk about a guardian. Specifically, it is 

helpful to distinguish between a “guardian” and a “guardian ad 

litem.”

¶22 A general guardian for an incapacitated individual4 has 

broad power over the person and her rights and affairs. Unless 

otherwise limited by the court, a general guardian “has the same 

powers, rights, and duties respecting the ward that a parent has 

respecting the parent’s unemancipated minor child.” UTAH CODE

§ 75-5-312(2). This generally includes having custody of the ward, 

establishing the ward’s place of abode, even if outside of the state, 

receiving the ward’s money and property for the ward’s support, 

and consenting to any professional care. Id. § 75-5-312(3). Statutory

processes govern this action. See, e.g., id. ch. 75-5 & 75-5b. For 

example, when someone petitions the court for a finding that an 

adult is incapacitated and in need of a guardian, the court must hold 

a hearing, and the allegedly incapacitated person has a right to be 

present, have counsel, present evidence, cross-examine witnesses, 

and have a trial by jury. Id. § 75-5-303. In statute, there are also 

guidelines for who can serve as a guardian, id. § 75-5-311, 

requirements for notice, id. § 75-5-309, actions for emergency 

appointment, id. § 75-5-310, and other detailed procedures. See id.

§§ 75-5-301 to -317.

¶23 In contrast, the role a guardian ad litem may play is much 

less defined. According to those who purport to know such things, 

Ad litem is Latin for “to suit.” Ad litem, BLACK’S LAW DICTIONARY 

_____________________________________________________________

3 In addition to flagging the issue for remand, we ask our 

standing committees on the rules of civil and juvenile procedure to 

examine the issue and suggest ways to address the question.

4 “Incapacity” is defined in Utah statute. UTAH CODE § 75-1-

201(22). The statutes governing the court appointment of a guardian 

for an adult require a finding of incapacity. Id. § 75-5-303. The 

juvenile court in this case stated that it found Mother to be “an 

incompetent person,” and not an incapacitated person within the 

meaning of section 201.
In re G.J.P.

Opinion of the Court

8

(11th ed. 2019) (defining ad litem as “for the purposes of the suit”); Ad 

Litem, MERRIAM-WEBSTER DICTIONARY ONLINE, 

www.merriam-webster.com/dictionary/ad%20litem (defining ad 

litem as “for the lawsuit or action”); Guardian ad litem, BLACK’S LAW 

DICTIONARY (11th ed. 2019) (defining guardian ad litem as “[a]

guardian, usu[ally] a lawyer, appointed by the court to appear in a 

lawsuit on behalf of an incompetent or minor party” (emphasis 

added)). In other words, a guardian ad litem is appointed for a 

specific matter before the court.

¶24 Utah’s statutes governing the appointment of a “guardian” 

do not, by their express terms, apply to the appointment of a 

guardian ad litem.5 And Utah Rule of Civil Procedure 17(b) allows a 

guardian ad litem to be appointed even when there is already a 

general guardian over the person. However, beyond this 

understanding, the role of guardian ad litem for an incompetent 

adult is largely unspecified in Utah law.

¶25 The role of a guardian ad litem for a minor is principally

defined in statute. See UTAH CODE § 78A-2-701 to -705. Whereas, the 

role a guardian ad litem for an incapacitated adult is addressed only 

in stray references throughout the code. Utah Code section 75-3-

203(4), for example, provides that a guardian ad litem is prohibited 

from nominating someone to serve as a personal representative 

under the Probate Code. And section 75-1-403 provides that a court 

can appoint a guardian ad litem to represent the interest of, and 

approve an agreement on behalf of, an incapacitated person in estate 

proceedings. See id. § 75-1-403(4).

¶26 OPG contends that the juvenile court did not specify in its 

order whether it was appointing OPG as a general guardian or a 

guardian ad litem. True enough. But it is reasonable to conclude, 

from the context and statements the court made, that it appointed 

OPG as a guardian ad litem to assist Mother in this case. The juvenile 

court found “there is no procedure available to the Court to act as 

Guardian ad Litem,” and “there is no other person willing or able to 

act as Guardian ad Litem.” Moreover, the juvenile court noted that 

_____________________________________________________________

5 The Probate Code provides that “‘[g]uardian’ means a person 

who has qualified as a guardian of a minor or incapacitated person 

pursuant to testamentary or court appointment, or by written 

instrument . . . , but excludes one who is merely a guardian ad 

litem.” UTAH CODE § 75-1-201(20).
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Opinion of the Court

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OPG may “agree to represent [Mother] in this action.” (Emphasis 

added). Thus, we are confident that the juvenile court envisioned 

appointing OPG to represent Mother in the termination case only. 

And our analysis proceeds from the conclusion that we are 

examining the appointment of a guardian ad litem and not a general 

guardian. 

I. OPG Can Seek Extraordinary Relief Because

It Lacks a Plain, Speedy, and Adequate

Remedy to Address Its Appointment

¶27 Under rule 65B of the Utah Rules of Civil Procedure, “where 

no other plain, speedy and adequate remedy is available,” id. 65B(a), 

a person may petition for relief from a court’s wrongful use of 

judicial authority, id. 65B(d). The person petitioning on this ground 

for relief must be a “person aggrieved or whose interests are 

threatened by any of the acts” specified. Id. 65B(d)(1). Rule 65B(d) 

contemplates that a person may seek a petition “where an inferior 

court . . . has exceeded its jurisdiction or abused its discretion.” Id.

65B(d)(2)(A).

¶28 OPG asserts both. OPG claims that the juvenile court 

exceeded its jurisdiction by appointing any guardian ad litem for an 

adult and that it went beyond the bounds of its discretion by 

appointing OPG specifically. OPG has no plain, speedy, and 

adequate remedy because it is not a party to the action below.

Indeed, OPG attempted to appeal its appointment, but this court 

dismissed that appeal because OPG was not a party to the action. 

Supra ¶ 12; see Brigham Young Univ. v. Tremco Consultants, Inc., 2005 

UT 19, ¶ 46 & n.7, 110 P.3d 678 (noting that nonparties may not 

appeal lower court orders and that extraordinary writ would be the 

proper vehicle to challenge such order), overruled on other grounds by

Madsen v. JPMorgan Chase Bank, N.A., 2012 UT 51, ¶ 5, 296 P.3d 671.

Additionally, this petition could not first be brought to the district 

court because the juvenile court “is of equal status with the district 

courts of the state.” See UTAH CODE § 78A-6-102(3). Thus, a petition 

for an extraordinary relief constitutes the proper vehicle for OPG to 

advance its arguments.

II. The Juvenile Court has Inherent Authority

to Appoint a Guardian Ad Litem

¶29 OPG first asserts that because juvenile courts are courts of 

limited jurisdiction created by statute, they do not have authority to 

appoint a guardian ad litem for a parent in a matter before the court. 

We disagree.
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Opinion of the Court

10

¶30 All courts have a responsibility to ensure the fair and just 

proceeding of matters before them. This includes the requirement

that the court protect the rights of incompetent parties that come 

before it. 53 AM. JUR. 2d Mentally Impaired Persons § 174 (2019). Court 

proceedings can exercise the ultimate power of the government to 

interfere with rights and freedoms inherent in the individuals that 

enter the courtroom doors. If a person is not “competent, 

understandingly and intelligently, to comprehend the significance of 

legal proceedings,” Graham v. Graham, 240 P.2d 564, 565 (Wash. 

1952), her most fundamental rights could be gravely affected.

¶31 Courts are tasked with adjudicating vital disputes, like 

considering whether a parent should be stripped of the right to raise 

her child, and are duly obligated to ensure the parties affected are 

competent to be involved in the process. Indeed, we have codified 

this important principle in our Rules of Civil Procedure. Rule 17(b)

states that “an insane or incompetent person who is a party must 

appear either by a general guardian or by a guardian ad litem 

appointed in the particular case by the court in which the action is 

pending.”

¶32 OPG nevertheless asserts that a juvenile court, exercising its 

duly granted jurisdiction to hear a case, cannot protect an 

incompetent party by appointing her a guardian ad litem. This

ignores the long-standing principle, recognized by our sister states 

and federal courts, that the authority to appoint a guardian ad litem 

is inherent in the court’s exercise of its proper subject matter 

jurisdiction.

¶33 For example, in Graham, a mother petitioned the 

Washington Supreme Court to prohibit the trial court from 

appointing a guardian ad litem for her in a child visitation dispute. 

240 P.2d at 565. Much like the present case, the trial court in Graham 

had called a psychiatrist to testify about the mother’s mental health 

in regards to the underlying matter but, after that testimony, “felt 

compelled to protect the interests of [the mother] by appointing a 

guardian ad litem for her.” Id. The mother’s counsel objected. Id. The 

Washington Supreme Court had to decide, it noted, whether the trial 

court acted “within and not in excess of” its jurisdiction. Id. That 

court then reasoned that “the principle is well established” for courts 

to appoint guardian ad litem when needed, “[i]rrespective of specific 

statutory authorization.” Id. Such a party may not “comprehend the 

significance of legal proceedings and the effect [and] relationship of 

such proceedings in terms of [his or her] best interests.” Id. Thus, the 
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Opinion of the Court

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power to appoint a guardian ad litem is “part of and incidental to” 

the court’s jurisdiction over the underlying case. Id.

¶34 In Guardianship of H.L., the Vermont Supreme Court 

concluded that “the appointment of a guardian ad litem is a power 

inherent in courts in dealing with those appearing before them who 

are under disability.” 460 A.2d 478, 479 (Vt. 1983). The court 

reasoned that the trial court had to be able to fulfill its duty to see 

that the interests of an incompetent person were fully protected, 

especially when fundamental rights were involved. Id. Similar to the 

case here, that case involved the right of a parent to the custody of 

her child. Id. That court noted these rights as basic rights and held 

that when the incompetent’s counsel raised the issue to the court, it 

was “incumbent upon the court to insure that [mother’s] interests 

were protected,” and that the court therefore erred in not 

investigating further or appointing a guardian ad litem. Id. at 480.

¶35 In the same fashion, the Colorado Supreme Court held that 

a juvenile court had power to appoint a guardian ad litem for an 

adult even in a wider scope of cases than relevant statutes 

contemplated. See People in Interest of M.M., 726 P.2d 1108, 1118–20 

(Colo. 1986). That court held that it was “well established” and 

“proper” for a court to appoint a guardian ad litem for an 

incompetent party. Id. at 1118. The court further reasoned that this 

principle was well supported by the court’s rule of procedure 

requiring the protection of incompetent persons and appointment of 

guardian ad litem in some circumstances. Id. at 1119.

¶36 These courts are not outliers. The principle is well 

established across the country. See, e.g., Zaro v. Strauss, 167 F.2d 218, 

220 (5th Cir. 1948) (“Even in the absence of an inquisition of insanity 

or of a commitment, where a person is incompetent courts generally 

have inherent power to protect the interests of the incompetent by 

appointing a guardian ad litem to represent the incompetent in 

proceedings.”); Estate of Leonard, ex rel., Palmer v. Swift, 656 N.W.2d 

132, 139 (Iowa 2003) (“In addition to [the rules of civil procedure], 

the court has the inherent power to do whatever is essential to the 

performance of its constitutional functions, . . . including the 

appointment of a guardian ad litem.” (citation omitted)); In re Interest 

of A.M.K., 420 N.W.2d 718, 719 (Neb. 1988) (reviewing a parental 

rights termination proceeding from juvenile division and holding 

that “[e]very court has inherent power to appoint a guardian ad 

litem to represent an incapacitated person in that court”);

Buckingham v. Alden, 53 N.E.2d 101, 104 (Mass. 1944) (“[T]he 

authority to appoint a guardian ad litem or next friend is not limited 
In re G.J.P.

Opinion of the Court

12

to the foregoing statutory provisions. Such power is inherent in the 

court and its exercise at times becomes necessary for the proper 

functioning of the court.”); Schultz v. Oldenburg, 277 N.W. 918, 922

(Minn. 1938) (“[T]his power of the district courts to [appoint a 

guardian ad litem] is not taken away by the statutes authorizing the 

probate courts to appoint general guardians for insane persons.”

(citation omitted)); Wilson v. Ball, 523 S.E.2d 804, 806 (S.C. Ct. App. 

1999) (“[T]he authority for a circuit court to appoint a guardian ad 

litem is inherent in the court itself . . . .”); In re Serafin, 649 N.E.2d 

972, 976 (Ill. App. Ct. 1995) (“The circuit court is charged with a duty 

to protect the interests of its ward and has, by statute and otherwise, 

those powers necessary to appoint a guardian ad litem to represent 

the interests of the respondent during the court’s exercise of its 

jurisdiction.” (italics in original)); Berman v. Grossman, 260 N.Y.S.2d 

736, 738 (N.Y. App. Div. 1965) (“The power to appoint a guardian ad 

litem to appear for and represent the incompetent in the proceeding, 

absent prohibitory legislation, is among the court’s inherent powers 

in the matter of supervision over the person and property of the 

incompetent.”); 53 AM. JUR. 2d Mentally Impaired Persons § 174 (“A

court has the inherent power to appoint a guardian ad litem to 

represent an incompetent person in that court.”).

¶37 After reviewing this case law, we similarly agree that a 

court, even a statutorily-created juvenile court, may appoint a 

guardian ad litem for an incompetent adult in a matter properly 

before the court. This power is inherent in the court’s jurisdiction 

independent of a specific statutory grant of authority.

¶38 OPG raises several arguments attempting to keep us from 

this conclusion. First, OPG argues that the juvenile court does not 

have inherent power because it is a legislatively created court of 

limited jurisdiction. For this proposition, OPG cites to Western Water, 

LLC v. Olds, 2008 UT 18, 184 P.3d 578, and its discussion of State ex 

rel. B.B., 2004 UT 39, 94 P.3d 252.

¶39 In Western Water, we allowed a district court to award costs 

even when it lacked subject matter jurisdiction over the underlying 

matter because, we said, the district court has inherent power over

its processes, including attorneys. See 2008 UT 18, ¶ 42. In contrast, in 

State ex rel. B.B. we did not allow a juvenile court to award costs

because it did not have jurisdiction over the underlying matter. See 

2004 UT 39, ¶ 20. We distinguished State ex rel. B.B. because juvenile 

courts, unlike district courts, are courts of limited jurisdiction. 

W. Water, 2008 UT 18, ¶¶ 46–47. OPG points to the intersection of 
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Opinion of the Court

13

these holdings and argues that juvenile courts are limited to those 

powers enshrined in statute.

¶40 OPG’s argument misses the mark. The jurisdiction at issue 

in State ex rel. B.B. was the juvenile court’s subject matter jurisdiction. 

We reasoned that the juvenile court could not award costs because it 

did not have subject matter jurisdiction over the underlying dispute. 

State ex rel. B.B., 2004 UT 39, ¶ 19; see also W. Water, 2008 UT 18, ¶ 46.

In other words, the juvenile court did not have “inherent” power to 

do something in aid of a case over which it lacked subject matter 

jurisdiction. In contrast, here there is no question that the juvenile 

court has subject matter jurisdiction over a parental rights 

termination proceeding. See UTAH CODE § 78A-6-103(1). And, as 

described above, we join the throng of other states that have 

concluded that a court has inherent power to appoint a guardian ad 

litem to aid the progress of a case within its subject matter 

jurisdiction.

¶41 Second, OPG notes that the Juvenile Court Act specifically 

spells out that juvenile courts have “exclusive original jurisdiction in 

proceedings concerning . . . appointment of a guardian of the person 

or other guardian of a minor who comes within the court’s 

jurisdiction . . . .” Id. § 78A-6-103(1)(d). OPG asserts that a ruling that 

juvenile courts have inherent authority to appoint a guardian ad 

litem would render this statute superfluous. We disagree. This 

statute simply excepts other courts from having original jurisdiction 

to name guardians for minors who are under the juvenile court’s 

proper jurisdiction. There is no indication in the statute that the 

Legislature intended this statement of the juvenile court’s original 

jurisdiction to strip the juvenile court of its inherent authority to 

appoint a guardian ad litem for an incompetent adult in a matter 

properly before it.

¶42 Third, OPG points to the Utah Probate Code, which outlines 

the procedures for appointing a guardian, and asserts that those 

provisions deny the juvenile court the jurisdiction to appoint a 

guardian for an adult. Specifically, OPG asserts that the Probate 

Code provides the sole basis for appointing a guardian for an 

incapacitated adult.

¶43 OPG argues that Utah Code section 75-5b-202 states that a 

“court of this state has jurisdiction to appoint a guardian” if certain 

requirements are met, and that the phrase “court of this state” does 

not encompass juvenile courts. OPG correctly asserts that the 

Probate Code defines “court” as those courts “having jurisdiction in 

matters relating to the affairs of decedents.” Id. § 75-1-201(8). Because 
In re G.J.P.

Opinion of the Court

14

the juvenile court does not have jurisdiction over the affairs of 

decedents, it is not, reasons OPG, a court within the meaning of the 

Probate Code. Thus, OPG argues that because section 75-5b-201 

states that these statutes are the exclusive jurisdictional basis for 

appointing a guardian, the juvenile court could not have jurisdiction 

to appoint OPG in this case.

¶44 This argument fails however, because when the Probate 

Code speaks of guardians, it refers to general guardians and not 

guardians ad litem; as noted, the definitions that apply to the 

Probate Code define “guardian” but specifically exclude a “guardian 

ad litem” from that definition. See id. § 75-1-201(20). OPG 

nevertheless contends that this definition of guardian applies only 

generally throughout the Probate Code and that there is another, 

more specific definition of guardian in the Uniform Adult 

Guardianship and Protective Proceedings Jurisdiction Act 

(UAGPPJA). Id. §§ 75-5b-101, et seq. There, guardian is defined as “a 

person appointed by the court to make decisions regarding the person

of an adult, including a person appointed under Title 75, Chapter 5, 

Part 3, Guardians of Incapacitated Persons.” Id. § 75-5b-102(4)

(emphasis added). Because this definition does not contain the carve 

out for guardians ad litem found in the general definition, OPG 

believes that UAGPPJA’s requirements for appointing an adult 

guardian, including vesting the district court with exclusive

jurisdiction for that appointment, applies to guardians ad litem for 

an adult as well. See id. § 75-5b-201.

¶45 Although OPG is correct that UAGPPJA’s definition of 

guardian does not contain the general definition’s exclusion of 

guardians ad litem, we are not convinced that this evinces a 

legislative intent that UAGPPJA govern the appointment of 

guardians ad litem for an adult. This is because UAGPPJA applies to 

a guardian appointed “to make decisions regarding the person of an 

adult.” Id. § 75-5b-102(4). This hearkens back to the term of art 

“guardian of the person,” which is sometimes employed to describe 

a guardian “responsible for caring for someone who is incapable of 

caring for himself or herself because of infancy, incapacity, or 

disability.” Guardian of the person, BLACK’S LAW DICTIONARY (11th ed. 

2019); accord Home Town Fin. Corp. v. Frank, 368 P.2d 72, 75 (Utah 

1962) (referring to “guardian of his person” as one who “look[s] after 

his personal affairs”). It also echoes language that we use to talk 

about a general guardian who has “general care and control of the 

ward’s person and estate.” General guardian, BLACK’S LAW 

DICTIONARY (11th ed. 2019).
Cite as: 2020 UT 4

Opinion of the Court

15

¶46 Moreover, UAGPPJA is based upon the uniform act. The 

commentary to the act states that the uniform legislation “would not 

ordinarily apply to a guardian ad litem.” NATIONAL CONFERENCE OF 

COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM ADULT 

GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT 8

(2007). Our Legislature adopted the uniform act’s definition. Because 

of this, we have little trouble concluding that the Legislature did not 

intend UAGPPJA to divest juvenile courts of their inherent ability to 

appoint a guardian ad litem.

¶47 Finally, OPG argues that Utah Rule of Civil Procedure 17(b), 

which requires an incompetent person to appear by guardian or 

guardian ad litem, cannot increase a juvenile court’s jurisdiction or 

run contrary to statute. We agree that this court could not, by rule, 

give the juvenile court subject matter jurisdiction over a category of 

disputes from which the Legislature had deliberately excluded it by 

statute. But, as discussed above, the appointment of a guardian ad 

litem is inherent in the court’s jurisdiction to manage the cases over 

which it has proper subject matter jurisdiction and so does not 

increase the court’s authority.

III. The Juvenile Court Exceeded its Discretion by

Appointing the Office of Public Guardian

As Guardian Ad Litem

¶48 OPG next asserts that even if we conclude, as we have, that 

the juvenile court does have the authority to appoint a guardian ad 

litem for an adult, it was wrong to appoint OPG. OPG argues that it

is an entity created in statute whose “powers and duties” are defined 

solely by statute, see UTAH CODE § 62A-14-103, and that the juvenile 

court’s order contravenes these statutes.

¶49 The statute directs OPG to “serve as a guardian, 

conservator, or both for a ward upon appointment by a court when 

no other person is able and willing to do so and the office petitioned 

for or agreed in advance to the appointment.” Id. § 62A-14-

105(1)(a)(ii). “Guardian” here is defined by reference to the 

guardianship statutes that specifically exclude guardian ad litem. See

id. § 62A-14-102(4). Thus, OPG argues, it would be expressly outside 

its enabling statutes to serve as a guardian ad litem.

¶50 The Legislature also decreed that OPG must have 

“petitioned for or agreed in advance to the appointment” before a 

court can draft it into service. Id. § 62A-14-105(1)(a)(ii). That did not 

occur here. OPG reiterates that the juvenile court “cannot compel 

OPG to do more than what it is authorized to do by statute.”
In re G.J.P.

Opinion of the Court

16

¶51 We take OPG’s point. The Legislature appears to have 

created OPG for a very specific purpose. And the Legislature 

empowered OPG to be the sole arbiter of when it will serve. Against 

this statutory backdrop, the juvenile court exceeded the bounds of its 

discretion in appointing OPG without its consent.

¶52 This does not mean, however, that the juvenile court has

depleted its options. There appears to be nothing in statute that 

speaks to the qualifications to serve as a guardian ad litem for an 

adult. Certainly, the parties have not pointed us to anything that 

would limit who can serve. Our rules appear to be similarly bereft of 

requirements. Thus, the pool of people who could potentially be 

appointed as guardian ad litem in a case such as this is vast.

¶53 We can understand why the juvenile court looked to OPG 

when efforts to locate a family member or friend failed.6 But it 

_____________________________________________________________

6 The juvenile court correctly noted that we have devised no 

formal process for the court to appoint an attorney to serve as 

guardian ad litem for an adult when more traditional candidates—

like a family member or friend—cannot be found. But this lack of 

procedure does not warrant drawing OPG into the matter contrary 

to its statutory mandate.

And while we understand that the juvenile court may have 

perceived that it had exhausted its efforts to find someone to help 

Mother, we note the long tradition in our state of attorneys stepping 

up to serve in difficult situations when requested.

Rule 6.1 of the Utah Rules of Professional Conduct urges 

attorneys to participate in activities that serve the legal system and 

profession. Many attorneys have kept faith with that rule by 

agreeing to serve as pro bono counsel in Post-Conviction Remedies 

Act cases. Many of us have, at some point in our careers, received a 

call from a judge who, having seen potential merit in a 

Post-Conviction Remedies Act petition, is searching for a volunteer 

to represent the petitioner. We appreciate the many attorneys who 

have responded to those calls. Cases like this appear to be another 

way that attorneys could fulfill rule 6.1’s mandate.

Because a guardian ad litem does not have to be an attorney, 

there may be other groups, such as social work clinics and mental 

health advocacy groups, who may be willing to help identify 

individuals willing to serve in difficult situations.

We appreciate that this is far from a perfect solution, and that we 

should not systemically rely on vague procedures and the good will 

(continued ...)
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Opinion of the Court

17

strayed outside the boundaries of its discretion when it appointed

OPG without its consent.

CONCLUSION

¶54 The juvenile court has inherent authority to appoint a 

guardian ad litem for an incompetent party appearing before it in a 

matter over which it has subject matter jurisdiction. However, 

because it is contrary to OPG’s statutorily granted role, the juvenile 

court exceeded its discretion by ordering OPG to serve as guardian 

ad litem. We grant the petition and remand for further proceedings. 

_____________________________________________________________

of our bar and community to ensure that our system treats people 

fairly. As our rules committees examine ways we might improve our 

rules with respect to the appointment of guardians ad litem for 

adults, we ask that they consider how the courts can better identify 

and appoint suitable guardians ad litem for incompetent adults.