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H.B. 327

             1     

PROBATE AMENDMENTS

             2     
2013 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: V. Lowry Snow

             5     
Senate Sponsor: Todd Weiler

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill makes amendments regarding probate, guardians, conservators, and
             10          funeral and burial arrangements.
             11      Highlighted Provisions:
             12          This bill:
             13          .    eliminates the need to mail notices to trust companies when an entity other than a
             14      trust company is to be appointed as a conservator, trustee, or personal
             15      representative;
             16          .    provides that advance directions regarding funeral and burial directions may be
             17      acknowledged before a Notary Public;
             18          .    changes and updates the definition of incapacity for the purpose of a guardianship;
             19          .    makes changes to the rule against perpetuities;
             20          .    allows the appointment of a personal representative or special administrator beyond
             21      three years after a decedent's death when the will was not previously probated;
             22          .    updates the electronic filing procedures regarding the possession of an original will;
             23          .    makes the publishing of a notice to creditors permissive instead of mandatory;
             24          .    creates a provision to allow a notice to creditors to be published for small estates;
             25          .    clarifies and removes one of the exceptions when the representation by an attorney
             26      of an incapacitated or protected person terminates;
             27          .    modifies the requirements for who may be a guardian;


             28          .    adds specific requirements for a guardian to notify interested persons when moving
             29      a ward, or of a ward's pending or actual death; and
             30          .    makes technical and conforming cross-reference changes.
             31      Money Appropriated in this Bill:
             32          None
             33      Other Special Clauses:
             34          None
             35      Utah Code Sections Affected:
             36      AMENDS:
             37          7-5-1, as last amended by Laws of Utah 2011, Chapter 289
             38          58-9-601, as last amended by Laws of Utah 2012, Chapter 274
             39          58-9-602, as last amended by Laws of Utah 2012, Chapter 274
             40          58-17b-701, as last amended by Laws of Utah 2011, Chapter 366
             41          58-31b-401, as last amended by Laws of Utah 2011, Chapter 366
             42          58-67-601, as last amended by Laws of Utah 2011, Chapter 366
             43          58-68-601, as last amended by Laws of Utah 2011, Chapter 366
             44          58-69-601, as last amended by Laws of Utah 2011, Chapter 366
             45          58-71-601, as last amended by Laws of Utah 2011, Chapter 366
             46          62A-14-102, as last amended by Laws of Utah 2009, Chapter 75
             47          75-1-201, as last amended by Laws of Utah 2010, Chapter 93
             48          75-2-1203, as last amended by Laws of Utah 2003, Chapter 301
             49          75-2-1204, as enacted by Laws of Utah 1998, Chapter 39
             50          75-3-102, as last amended by Laws of Utah 1988, Chapter 110
             51          75-3-107, as last amended by Laws of Utah 1989, Chapter 107
             52          75-3-301, as last amended by Laws of Utah 1977, Chapter 194
             53          75-3-303, as last amended by Laws of Utah 1998, Chapter 39
             54          75-3-402, as last amended by Laws of Utah 1977, Chapter 194
             55          75-3-801, as last amended by Laws of Utah 2009, Chapter 388
             56          75-5-303, as last amended by Laws of Utah 2012, Chapter 274
             57          75-5-311, as last amended by Laws of Utah 1998, Chapter 288
             58          75-5-312, as last amended by Laws of Utah 1992, Chapter 290


             59          75-5-407, as last amended by Laws of Utah 2012, Chapter 274
             60     
             61      Be it enacted by the Legislature of the state of Utah:
             62          Section 1. Section 7-5-1 is amended to read:
             63           7-5-1. Definitions -- Allowable trust companies -- Exceptions.
             64          (1) As used in this chapter:
             65          (a) "Business trust" means an entity engaged in a trade or business that is created by a
             66      declaration of trust that transfers property to trustees, to be held and managed by them for the
             67      benefit of persons holding certificates representing the beneficial interest in the trust estate and
             68      assets.
             69          (b) "Trust business" means, except as provided in Subsection (1)(c), a business in
             70      which one acts in any agency or fiduciary capacity, including that of personal representative,
             71      executor, administrator, conservator, guardian, assignee, receiver, depositary, or trustee under
             72      appointment as trustee for any purpose permitted by law, including the definition of "trust" set
             73      forth in Subsection 75-1-201 (55).
             74          (c) "Trust business" does not include the following means of holding money, assets, or
             75      other property:
             76          (i) money held in a client trust account by an attorney authorized to practice law in this
             77      state;
             78          (ii) money held in connection with the purchase or sale of real estate by a person
             79      licensed as a principal broker in accordance with Title 61, Chapter 2f, Real Estate Licensing
             80      and Practices Act;
             81          (iii) money or other assets held in escrow by a person authorized by the department in
             82      accordance with Chapter 22, Regulation of Independent Escrow Agents, or by the Utah
             83      Insurance Department to act as an escrow agent in this state;
             84          (iv) money held by a homeowners' association or similar organization to pay
             85      maintenance and other related costs for commonly owned property;
             86          (v) money held in connection with the collection of debts or payments on loans by a
             87      person acting solely as the agent or representative or otherwise at the sole direction of the
             88      person to which the debt or payment is owed, including money held by an escrow agent for
             89      payment of taxes or insurance;


             90          (vi) money and other assets held in trust on an occasional or isolated basis by a person
             91      who does not represent that the person is engaged in the trust business in Utah;
             92          (vii) money or other assets found by a court to be held in an implied, resulting, or
             93      constructive trust;
             94          (viii) money or other assets held by a court appointed conservator, guardian, receiver,
             95      trustee, or other fiduciary if:
             96          (A) the conservator, receiver, guardian, trustee, or other fiduciary is responsible to the
             97      court in the same manner as a personal representative under Title 75, Chapter 3, Part 5,
             98      Supervised Administration, or as a receiver under Rule 66, Utah Rules of Civil Procedure; and
             99          (B) the conservator, trustee, or other fiduciary is a certified public accountant or has
             100      qualified for and received a designation as a certified financial planner, chartered financial
             101      consultant, certified financial analyst, or similar designation suitable to the court, that
             102      evidences the conservator's, trustee's, or other fiduciary's professional competence to manage
             103      financial matters;
             104          [(C) no trust company is willing or eligible to serve as conservator, guardian, trustee,
             105      or receiver after notice has been given pursuant to Section 75-1-401 to all trust companies
             106      doing business in this state, including a statement of the value of the assets to be managed, that
             107      notice need not be provided, however, if a trust company has been employed by the fiduciary to
             108      manage the assets; and]
             109          [(D) in the event guardianship services are needed, the person seeking appointment as a
             110      guardian under this Subsection (1) is a specialized care professional, as that term is defined in
             111      Section 75-5-311 , or a business or state agency that employs the services of one of those
             112      professionals for the purpose of caring for the incapacitated person, so long as the specialized
             113      care professional, business, or state agency does not:]
             114          [(I) profit financially or otherwise from, or receive compensation for acting in that
             115      capacity, except for the direct costs of providing guardianship or conservatorship services; or]
             116          [(II) otherwise have a conflict of interest in providing those services;]
             117          (ix) money or other assets held by a credit services organization operating in
             118      compliance with Title 13, Chapter 21, Credit Services Organizations Act;
             119          (x) money, securities, or other assets held in a customer account in connection with the
             120      purchase or sale of securities by a regulated securities broker, dealer, or transfer agent; or


             121          (xi) money, assets, and other property held in a business trust for the benefit of holders
             122      of certificates of beneficial interest if the fiduciary activities of the business trust are merely
             123      incidental to conducting business in the business trust form.
             124          (d) "Trust company" means an institution authorized to engage in the trust business
             125      under this chapter. Only the following may be a trust company:
             126          (i) a Utah depository institution or its wholly owned subsidiary;
             127          (ii) an out-of-state depository institution authorized to engage in business as a
             128      depository institution in Utah or its wholly owned subsidiary;
             129          (iii) a corporation, including a credit union service organization, owned entirely by one
             130      or more federally insured depository institutions as defined in Subsection 7-1-103 (8);
             131          (iv) a direct or indirect subsidiary of a depository institution holding company that also
             132      has a direct or indirect subsidiary authorized to engage in business as a depository institution in
             133      Utah; and
             134          (v) any other corporation continuously and lawfully engaged in the trust business in
             135      this state since before July 1, 1981.
             136          (2) Only a trust company may engage in the trust business in this state.
             137          (3) The requirements of this chapter do not apply to:
             138          (a) an institution authorized to engage in a trust business in another state that is
             139      engaged in trust activities in this state solely to fulfill its duties as a trustee of a trust created
             140      and administered in another state;
             141          (b) a national bank, federal savings bank, federal savings and loan association, or
             142      federal credit union authorized to engage in business as a depository institution in Utah, or any
             143      wholly owned subsidiary of any of these, to the extent the institution is authorized by its
             144      primary federal regulator to engage in the trust business in this state; or
             145          (c) a state agency that is otherwise authorized by statute to act as a conservator,
             146      receiver, guardian, trustee, or in any other fiduciary capacity.
             147          Section 2. Section 58-9-601 is amended to read:
             148           58-9-601. Advance directions.
             149          (1) A person may provide written directions, acknowledged before a Notary Public or
             150      executed with the same formalities required of a will under Section 75-2-502 , to direct the
             151      preparation, type, and place of the person's disposition, including:


             152          (a) designating a funeral service establishment;
             153          (b) providing directions for burial arrangements; or
             154          (c) providing directions for cremation arrangements.
             155          (2) A funeral service director shall carry out the written directions of the decedent
             156      prepared under this section to the extent that:
             157          (a) the directions are lawful; and
             158          (b) the decedent has provided resources to carry out the directions.
             159          (3) Directions for disposition contained in a will shall be carried out pursuant to
             160      Subsection (2) regardless of:
             161          (a) the validity of other aspects of the will; or
             162          (b) the fact that the will may not be offered or admitted to probate until a later date.
             163          (4) A person may change or cancel written directions prepared under this section at any
             164      time prior to the person's death by providing written notice to all applicable persons, including:
             165          (a) if the written directions designate a funeral service establishment or funeral service
             166      director, the funeral service establishment or funeral service director designated in the written
             167      directions; and
             168          (b) if the written directions are contained in a will, the personal representative as
             169      defined in Section 75-1-201 .
             170          Section 3. Section 58-9-602 is amended to read:
             171           58-9-602. Determination of control of disposition.
             172          The right and duty to control the disposition of a deceased person, including the
             173      location, manner and conditions of the disposition, and arrangements for funeral goods and
             174      services to be provided vest in the following degrees of relationship in the order named,
             175      provided the person is at least 18 and is mentally competent:
             176          (1) the person designated:
             177          (a) in a written instrument, excluding a power of attorney that terminates at death under
             178      Sections 75-5-501 and 75-5-502 , if the written instrument is acknowledged before a Notary
             179      Public or executed with the same formalities required of a will under Section 75-2-502 ; or
             180          (b) by a service member while serving in a branch of the United States Armed Forces
             181      as defined in 10 U.S.C. Sec. 1481 in a federal Record of Emergency Data, DD Form 93 or
             182      subsequent form;


             183          (2) the surviving, legally recognized spouse of the decedent, unless a personal
             184      representative was nominated by the decedent subsequent to the marriage, in which case the
             185      personal representative shall take priority over the spouse;
             186          (3) the person nominated to serve as the personal representative of the decedent's estate
             187      in a will executed with the formalities required in Section 75-2-502 ;
             188          (4) (a) the sole surviving child of the decedent, or if there is more than one child of the
             189      decedent, the majority of the surviving children;
             190          (b) less than one-half of the surviving children are vested with the rights of this section
             191      if they have used reasonable efforts to notify all other surviving children of their instructions
             192      and are not aware of any opposition to those instructions on the part of more than one-half of
             193      all surviving children;
             194          (5) the surviving parent or parents of the decedent, and if one of the surviving parents
             195      is absent, the remaining parent is vested with the rights and duties of this section after
             196      reasonable efforts have been unsuccessful in locating the absent surviving parent;
             197          (6) (a) the surviving brother or sister of the decedent, or if there is more than one
             198      sibling of the decedent, the majority of the surviving siblings;
             199          (b) less than the majority of surviving siblings are vested with the rights and duties of
             200      this section if they have used reasonable efforts to notify all other surviving siblings of their
             201      instructions and are not aware of any opposition to those instructions on the part of more than
             202      one-half of all surviving siblings;
             203          (7) the person in the classes of the next degree of kinship, in descending order, under
             204      the laws of descent and distribution to inherit the estate of the decedent, and if there is more
             205      than one person of the same degree, any person of that degree may exercise the right of
             206      disposition;
             207          (8) any public official charged with arranging the disposition of deceased persons; and
             208          (9) in the absence of any person under Subsections (1) through (8), any other person
             209      willing to assume the responsibilities to act and arrange the final disposition of the decedent's
             210      remains, including the personal representative of the decedent's estate or the funeral service
             211      director with custody of the body, after attesting in writing that a good faith effort has been
             212      made to no avail to contact the individuals referred to in Subsections (1) through (8).
             213          Section 4. Section 58-17b-701 is amended to read:


             214           58-17b-701. Mentally incompetent or incapacitated pharmacist -- Division action
             215      and procedures.
             216          (1) As used in this section:
             217          (a) "Incapacitated person" is a person who is incapacitated, as defined in Section
             218      75-1-201 .
             219          (b) "Mental illness" is as defined in Section 62A-15-602 .
             220          (2) If a court of competent jurisdiction determines a pharmacist is an incapacitated
             221      person, or that the pharmacist has a mental illness and is unable to safely engage in the practice
             222      of pharmacy, the director shall immediately suspend the license of the pharmacist upon the
             223      entry of the judgment of the court, without further proceedings under Title 63G, Chapter 4,
             224      Administrative Procedures Act, regardless of whether an appeal from the court's ruling is
             225      pending. The director shall promptly notify the pharmacist, in writing, of the suspension.
             226          (3) (a) If the division and a majority of the board find reasonable cause to believe a
             227      pharmacist, who is not determined judicially to be an incapacitated person or to have a mental
             228      illness, is incapable of practicing pharmacy with reasonable skill regarding the safety of
             229      patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or
             230      physical condition, the board shall recommend that the director file a petition with the division,
             231      and cause the petition to be served upon the pharmacist with a notice of hearing on the sole
             232      issue of the capacity of the pharmacist to competently and safely engage in the practice of
             233      pharmacy.
             234          (b) The hearing shall be conducted under Section 58-1-109 and Title 63G, Chapter 4,
             235      Administrative Procedures Act, except as provided in Subsection (4).
             236          (4) (a) Every pharmacist who accepts the privilege of being licensed under this chapter
             237      gives consent to:
             238          (i) submitting at the pharmacist's own expense to an immediate mental or physical
             239      examination when directed in writing by the division, with the consent of a majority of the
             240      board, to do so; and
             241          (ii) the admissibility of the reports of the examining practitioner's testimony or
             242      examination in any proceeding regarding the license of the pharmacist, and waives all
             243      objections on the ground the reports constitute a privileged communication.
             244          (b) The examination may be ordered by the division, with the consent of a majority of


             245      the board, only upon a finding of reasonable cause to believe:
             246          (i) the pharmacist has a mental illness, is incapacitated or otherwise unable to practice
             247      pharmacy with reasonable skill and safety; and
             248          (ii) immediate action by the division and the board is necessary to prevent harm to the
             249      pharmacist's patients or the general public.
             250          (c) (i) Failure of a pharmacist to submit to the examination ordered under this section
             251      is a ground for the division's immediate suspension of the pharmacist's license by written order
             252      of the director.
             253          (ii) The division may enter the order of suspension without further compliance with
             254      Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
             255      submit to the examination ordered under this section was due to circumstances beyond the
             256      control of the pharmacist and was not related directly to the illness or incapacity of the
             257      pharmacist.
             258          (5) (a) A pharmacist whose license is suspended under Subsection (2) or (4) has the
             259      right to a hearing to appeal the suspension within 10 days after the license is suspended.
             260          (b) The hearing held under this Subsection (5) shall be conducted in accordance with
             261      Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
             262      for the continuance of the order of suspension in order to prevent harm to the pharmacist's
             263      patients or the general public.
             264          (6) A pharmacist whose license is revoked, suspended, or in any way restricted under
             265      this section may request the division and the board to consider, at reasonable intervals,
             266      evidence presented by the pharmacist, under procedures established by division rule, regarding
             267      any change in the pharmacist's condition, to determine whether:
             268          (a) the pharmacist is or is not able to safely and competently engage in the practice of
             269      pharmacy; and
             270          (b) the pharmacist is qualified to have the pharmacist's licensure to practice under this
             271      chapter restored completely or in part.
             272          Section 5. Section 58-31b-401 is amended to read:
             273           58-31b-401. Grounds for denial of licensure or certification and disciplinary
             274      proceedings.
             275          (1) Grounds for refusal to issue a license to an applicant, for refusal to renew the


             276      license of a licensee, to revoke, suspend, restrict, or place on probation the license of a licensee,
             277      to issue a public or private reprimand to a licensee, and to issue cease and desist orders shall be
             278      in accordance with Section 58-1-401 .
             279          (2) If a court of competent jurisdiction determines a nurse is [an] incapacitated [person]
             280      as defined in Section 75-1-201 or that the nurse has a mental illness, as defined in Section
             281      62A-15-602 , and unable to safely engage in the practice of nursing, the director shall
             282      immediately suspend the license of the nurse upon the entry of the judgment of the court,
             283      without further proceedings under Title 63G, Chapter 4, Administrative Procedures Act,
             284      regardless of whether an appeal from the court's ruling is pending. The director shall promptly
             285      notify the nurse in writing of the suspension.
             286          (3) (a) If the division and the majority of the board find reasonable cause to believe a
             287      nurse who is not determined judicially to be an incapacitated person or to have a mental illness,
             288      is incapable of practicing nursing with reasonable skill regarding the safety of patients, because
             289      of illness, excessive use of drugs or alcohol, or as a result of any mental or physical condition,
             290      the board shall recommend that the director file a petition with the division, and cause the
             291      petition to be served upon the nurse with a notice of hearing on the sole issue of the capacity of
             292      the nurse to competently, safely engage in the practice of nursing.
             293          (b) The hearing shall be conducted under Section 58-1-109 and Title 63G, Chapter 4,
             294      Administrative Procedures Act, except as provided in Subsection (4).
             295          (4) (a) Every nurse who accepts the privilege of being licensed under this chapter gives
             296      consent to:
             297          (i) submitting to an immediate mental or physical examination, at the nurse's expense
             298      and by a division-approved practitioner selected by the nurse when directed in writing by the
             299      division and a majority of the board to do so; and
             300          (ii) the admissibility of the reports of the examining practitioner's testimony or
             301      examination, and waives all objections on the ground the reports constitute a privileged
             302      communication.
             303          (b) The examination may be ordered by the division, with the consent of a majority of
             304      the board, only upon a finding of reasonable cause to believe:
             305          (i) the nurse has a mental illness, is incapacitated, or otherwise unable to practice
             306      nursing with reasonable skill and safety; and


             307          (ii) immediate action by the division and the board is necessary to prevent harm to the
             308      nurse's patients or the general public.
             309          (c) (i) Failure of a nurse to submit to the examination ordered under this section is a
             310      ground for the division's immediate suspension of the nurse's license by written order of the
             311      director.
             312          (ii) The division may enter the order of suspension without further compliance with
             313      Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
             314      submit to the examination ordered under this section was due to circumstances beyond the
             315      control of the nurse and was not related directly to the illness or incapacity of the nurse.
             316          (5) (a) A nurse whose license is suspended under Subsection (2), (3), or (4)(c) has the
             317      right to a hearing to appeal the suspension within 10 days after the license is suspended.
             318          (b) The hearing held under this Subsection (5) shall be conducted in accordance with
             319      Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
             320      for the continuance of the order of suspension in order to prevent harm to the nurse's patients or
             321      the general public.
             322          (6) A nurse whose license is revoked, suspended, or in any way restricted under this
             323      section may request the division and the board to consider, at reasonable intervals, evidence
             324      presented by the nurse, under procedures established by division rule, regarding any change in
             325      the nurse's condition, to determine whether:
             326          (a) the nurse is or is not able to safely and competently engage in the practice of
             327      nursing; and
             328          (b) the nurse is qualified to have the nurse's license to practice under this chapter
             329      restored completely or in part.
             330          (7) Nothing in Section 63G-2-206 may be construed as limiting the authority of the
             331      division to report current significant investigative information to the coordinated licensure
             332      information system for transmission to party states as required of the division by Article VII of
             333      the Nurse Licensure Compact in Section 58-31c-102 .
             334          (8) For purposes of this section:
             335          (a) "licensed" or "license" includes "certified" or "certification" under this chapter; and
             336          (b) any terms or conditions applied to the word "nurse" in this section also apply to a
             337      medication aide certified.


             338          Section 6. Section 58-67-601 is amended to read:
             339           58-67-601. Mentally incompetent or incapacitated physician.
             340          (1) As used in this section:
             341          (a) "Incapacitated person" [is] means a person who is incapacitated, as defined in
             342      Section 75-1-201 .
             343          (b) "Mental illness" is as defined in Section 62A-15-602 .
             344          (2) If a court of competent jurisdiction determines a physician is an incapacitated
             345      person or that the physician has a mental illness and is unable to safely engage in the practice
             346      of medicine, the director shall immediately suspend the license of the physician upon the entry
             347      of the judgment of the court, without further proceedings under Title 63G, Chapter 4,
             348      Administrative Procedures Act, regardless of whether an appeal from the court's ruling is
             349      pending. The director shall promptly notify the physician, in writing, of the suspension.
             350          (3) (a) If the division and a majority of the board find reasonable cause to believe a
             351      physician, who is not determined judicially to be an incapacitated person or to have a mental
             352      illness, is incapable of practicing medicine with reasonable skill regarding the safety of
             353      patients, because of illness, excessive use of drugs or alcohol, or as a result of any mental or
             354      physical condition, the board shall recommend that the director file a petition with the division,
             355      and cause the petition to be served upon the physician with a notice of hearing on the sole issue
             356      of the capacity of the physician to competently and safely engage in the practice of medicine.
             357          (b) The hearing shall be conducted under Section 58-1-109 , and Title 63G, Chapter 4,
             358      Administrative Procedures Act, except as provided in Subsection (4).
             359          (4) (a) Every physician who accepts the privilege of being licensed under this chapter
             360      gives consent to:
             361          (i) submitting at the physician's own expense to an immediate mental or physical
             362      examination when directed in writing by the division and a majority of the board to do so; and
             363          (ii) the admissibility of the reports of the examining physician's testimony or
             364      examination, and waives all objections on the ground the reports constitute a privileged
             365      communication.
             366          (b) The examination may be ordered by the division, with the consent of a majority of
             367      the board, only upon a finding of reasonable cause to believe:
             368          (i) the physician has a mental illness, is incapacitated, or otherwise unable to practice


             369      medicine with reasonable skill and safety; and
             370          (ii) immediate action by the division and the board is necessary to prevent harm to the
             371      physician's patients or the general public.
             372          (c) (i) Failure of a physician to submit to the examination ordered under this section is
             373      a ground for the division's immediate suspension of the physician's license by written order of
             374      the director.
             375          (ii) The division may enter the order of suspension without further compliance with
             376      Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
             377      submit to the examination ordered under this section was due to circumstances beyond the
             378      control of the physician and was not related directly to the illness or incapacity of the
             379      physician.
             380          (5) (a) A physician whose license is suspended under Subsection (2) or (3) has the right
             381      to a hearing to appeal the suspension within 10 days after the license is suspended.
             382          (b) The hearing held under this subsection shall be conducted in accordance with
             383      Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
             384      for the continuance of the order of suspension in order to prevent harm to the physician's
             385      patients or the general public.
             386          (6) A physician whose license is revoked, suspended, or in any way restricted under
             387      this section may request the division and the board to consider, at reasonable intervals,
             388      evidence presented by the physician, under procedures established by division rule, regarding
             389      any change in the physician's condition, to determine whether:
             390          (a) the physician is or is not able to safely and competently engage in the practice of
             391      medicine; and
             392          (b) the physician is qualified to have the physician's license to practice under this
             393      chapter restored completely or in part.
             394          Section 7. Section 58-68-601 is amended to read:
             395           58-68-601. Mentally incompetent or incapacitated osteopathic physician.
             396          (1) As used in this section:
             397          (a) "Incapacitated person" [is] means a person who is incapacitated, as defined in
             398      Section 75-1-201 .
             399          (b) "Mental illness" is as defined in Section 62A-15-602 .


             400          (2) If a court of competent jurisdiction determines an osteopathic physician and
             401      surgeon is an incapacitated person or that the physician or surgeon has a mental illness and is
             402      unable to safely engage in the practice of medicine, the director shall immediately suspend the
             403      license of the osteopathic physician and surgeon upon the entry of the judgment of the court,
             404      without further proceedings under Title 63G, Chapter 4, Administrative Procedures Act,
             405      regardless of whether an appeal from the court's ruling is pending. The director shall promptly
             406      notify the osteopathic physician and surgeon, in writing, of the suspension.
             407          (3) (a) If the division and a majority of the board find reasonable cause to believe an
             408      osteopathic physician and surgeon, who is not determined judicially to be an incapacitated
             409      person or to have a mental illness, is incapable of practicing osteopathic medicine with
             410      reasonable skill regarding the safety of patients, because of illness, excessive use of drugs or
             411      alcohol, or as a result of any mental or physical condition, the board shall recommend that the
             412      director file a petition with the division, and cause the petition to be served upon the
             413      osteopathic physician and surgeon with a notice of hearing on the sole issue of the capacity of
             414      the osteopathic physician and surgeon to competently and safety engage in the practice of
             415      medicine.
             416          (b) The hearing shall be conducted under Section 58-1-109 , and Title 63G, Chapter 4,
             417      Administrative Procedures Act, except as provided in Subsection (4).
             418          (4) (a) Every osteopathic physician and surgeon who accepts the privilege of being
             419      licensed under this chapter gives consent to:
             420          (i) submitting at the physician's or surgeon's own expense to an immediate mental or
             421      physical examination when directed in writing by the division and a majority of the board to do
             422      so; and
             423          (ii) the admissibility of the reports of the examining physician's testimony or
             424      examination, and waives all objections on the ground the reports constitute a privileged
             425      communication.
             426          (b) The examination may be ordered by the division, with the consent of a majority of
             427      the board, only upon a finding of reasonable cause to believe:
             428          (i) the osteopathic physician and surgeon has a mental illness, is incapacitated, or
             429      otherwise unable to practice medicine with reasonable skill and safety; and
             430          (ii) immediate action by the division and the board is necessary to prevent harm to the


             431      osteopathic physician and surgeon's patients or the general public.
             432          (c) (i) Failure of an osteopathic physician and surgeon to submit to the examination
             433      ordered under this section is a ground for the division's immediate suspension of the
             434      osteopathic physician and surgeon's license by written order of the director.
             435          (ii) The division may enter the order of suspension without further compliance with
             436      Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
             437      submit to the examination ordered under this section was due to circumstances beyond the
             438      control of the osteopathic physician and surgeon and was not related directly to the illness or
             439      incapacity of the osteopathic physician and surgeon.
             440          (5) (a) An osteopathic physician and surgeon whose license is suspended under
             441      Subsection (2) or (3) has the right to a hearing to appeal the suspension within 10 days after the
             442      license is suspended.
             443          (b) The hearing held under this subsection shall be conducted in accordance with
             444      Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
             445      for the continuance of the order of suspension in order to prevent harm to the osteopathic
             446      physician and surgeon's patients or the general public.
             447          (6) An osteopathic physician and surgeon whose license is revoked, suspended, or in
             448      any way restricted under this section may request the division and the board to consider, at
             449      reasonable intervals, evidence presented by the osteopathic physician and surgeon, under
             450      procedures established by division rule, regarding any change in the osteopathic physician and
             451      surgeon's condition, to determine whether:
             452          (a) the physician or surgeon is or is not able to safely and competently engage in the
             453      practice of medicine; and
             454          (b) the physician or surgeon is qualified to have the physician's or surgeon's license to
             455      practice under this chapter restored completely or in part.
             456          Section 8. Section 58-69-601 is amended to read:
             457           58-69-601. Mentally incompetent or incapacitated dentist or dental hygienist.
             458          (1) As used in this section:
             459          (a) "Incapacitated person" [is] means a person who is incapacitated, as defined in
             460      Section 75-1-201 .
             461          (b) "Mental illness" is as defined in Section 62A-15-602 .


             462          (2) If a court of competent jurisdiction determines a dentist or dental hygienist is an
             463      incapacitated person or that the dentist or hygienist has a mental illness and is unable to safely
             464      engage in the practice of dentistry or dental hygiene, the director shall immediately suspend the
             465      license of the dentist or dental hygienist upon the entry of the judgment of the court, without
             466      further proceedings under Title 63G, Chapter 4, Administrative Procedures Act, regardless of
             467      whether an appeal from the court's ruling is pending. The director shall promptly notify the
             468      dentist or dental hygienist, in writing, of the suspension.
             469          (3) (a) If the division and a majority of the board find reasonable cause to believe a
             470      dentist or dental hygienist, who is not determined judicially to be an incapacitated person or to
             471      have a mental illness, is incapable of practicing dentistry or dental hygiene with reasonable
             472      skill regarding the safety of patients, because of illness, excessive use of drugs or alcohol, or as
             473      a result of any mental or physical condition, the board shall recommend that the director file a
             474      petition with the division, and cause the petition to be served upon the dentist or dental
             475      hygienist with a notice of hearing on the sole issue of the capacity of the dentist or dental
             476      hygienist to competently and safely engage in the practice of dentistry or dental hygiene.
             477          (b) The hearing shall be conducted under Section 58-1-109 and Title 63G, Chapter 4,
             478      Administrative Procedures Act, except as provided in Subsection (4).
             479          (4) (a) Every dentist or dental hygienist who accepts the privilege of being licensed
             480      under this chapter gives consent to:
             481          (i) submitting at the dentist or dental hygienist's own expense to an immediate mental
             482      or physical examination when directed in writing by the division and a majority of the board to
             483      do so; and
             484          (ii) the admissibility of the reports of the examining practitioner's testimony or
             485      examination, and waives all objections on the ground the reports constitute a privileged
             486      communication.
             487          (b) The examination may be ordered by the division, with the consent of a majority of
             488      the board, only upon a finding of reasonable cause to believe:
             489          (i) the dentist or dental hygienist has a mental illness, is incapacitated, or otherwise
             490      unable to practice dentistry or dental hygiene with reasonable skill and safety; and
             491          (ii) immediate action by the division and the board is necessary to prevent harm to the
             492      dentist's or dental hygienist's patients or the general public.


             493          (c) (i) Failure of a dentist or dental hygienist to submit to the examination ordered
             494      under this section is a ground for the division's immediate suspension of the dentist's or dental
             495      hygienist's license by written order of the director.
             496          (ii) The division may enter the order of suspension without further compliance with
             497      Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
             498      submit to the examination ordered under this section was due to circumstances beyond the
             499      control of the dentist or dental hygienist and was not related directly to the illness or incapacity
             500      of the dentist or dental hygienist.
             501          (5) (a) A dentist or dental hygienist whose license is suspended under Subsection (2) or
             502      (3) has the right to a hearing to appeal the suspension within 10 days after the license is
             503      suspended.
             504          (b) The hearing held under this subsection shall be conducted in accordance with
             505      Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
             506      for the continuance of the order of suspension in order to prevent harm to the dentist's or dental
             507      hygienist's patients or the general public.
             508          (6) A dentist or dental hygienist whose license is revoked, suspended, or in any way
             509      restricted under this section may request the division and the board to consider, at reasonable
             510      intervals, evidence presented by the dentist or dental hygienist, under procedures established by
             511      division rule, regarding any change in the dentist's or dental hygienist's condition, to determine
             512      whether:
             513          (a) the dentist or dental hygienist is or is not able to safely and competently engage in
             514      the practice of dentistry or dental hygiene; and
             515          (b) the dentist or dental hygienist is qualified to have the dentist or dental hygienist's
             516      licensure to practice under this chapter restored completely or in part.
             517          Section 9. Section 58-71-601 is amended to read:
             518           58-71-601. Mentally incompetent or incapacitated naturopathic physician.
             519          (1) As used in this section:
             520          (a) "Incapacitated person" [is] means a person who is incapacitated, as defined in
             521      Section 75-1-201 .
             522          (b) "Mental illness" is as defined in Section 62A-15-602 .
             523          (2) If a court of competent jurisdiction determines a naturopathic physician is an


             524      incapacitated person or that the physician has a mental illness and is unable to safely engage in
             525      the practice of medicine, the director shall immediately suspend the license of the naturopathic
             526      physician upon the entry of the judgment of the court, without further proceedings under Title
             527      63G, Chapter 4, Administrative Procedures Act, regardless of whether an appeal from the
             528      court's ruling is pending. The director shall promptly notify the naturopathic physician, in
             529      writing, of the suspension.
             530          (3) (a) If the division and a majority of the board find reasonable cause to believe a
             531      naturopathic physician, who is not determined judicially to be an incapacitated person or to
             532      have a mental illness, is incapable of practicing medicine with reasonable skill regarding the
             533      safety of patients, because of illness, excessive use of drugs or alcohol, or as a result of any
             534      mental or physical condition, the board shall recommend that the director file a petition with
             535      the division, and cause the petition to be served upon the naturopathic physician with a notice
             536      of hearing on the sole issue of the capacity of the naturopathic physician to competently and
             537      safely engage in the practice of medicine.
             538          (b) The hearing shall be conducted under Section 58-1-109 , and Title 63G, Chapter 4,
             539      Administrative Procedures Act, except as provided in Subsection (4).
             540          (4) (a) Every naturopathic physician who accepts the privilege of being licensed under
             541      this chapter gives consent to:
             542          (i) submitting at the physician's own expense to an immediate mental or physical
             543      examination when directed in writing by the division and a majority of the board to do so; and
             544          (ii) the admissibility of the reports of the examining physician's testimony or
             545      examination, and waives all objections on the ground the reports constitute a privileged
             546      communication.
             547          (b) The examination may be ordered by the division, with the consent of a majority of
             548      the board, only upon a finding of reasonable cause to believe:
             549          (i) the naturopathic physician has a mental illness, is incapacitated, or otherwise unable
             550      to practice medicine with reasonable skill and safety; and
             551          (ii) immediate action by the division and the board is necessary to prevent harm to the
             552      naturopathic physician's patients or the general public.
             553          (c) (i) Failure of a naturopathic physician to submit to the examination ordered under
             554      this section is a ground for the division's immediate suspension of the naturopathic physician's


             555      license by written order of the director.
             556          (ii) The division may enter the order of suspension without further compliance with
             557      Title 63G, Chapter 4, Administrative Procedures Act, unless the division finds the failure to
             558      submit to the examination ordered under this section was due to circumstances beyond the
             559      control of the naturopathic physician and was not related directly to the illness or incapacity of
             560      the naturopathic physician.
             561          (5) (a) A naturopathic physician whose license is suspended under Subsection (2) or
             562      (3) has the right to a hearing to appeal the suspension within 10 days after the license is
             563      suspended.
             564          (b) The hearing held under this subsection shall be conducted in accordance with
             565      Sections 58-1-108 and 58-1-109 for the sole purpose of determining if sufficient basis exists
             566      for the continuance of the order of suspension in order to prevent harm to the naturopathic
             567      physician's patients or the general public.
             568          (6) A naturopathic physician whose license is revoked, suspended, or in any way
             569      restricted under this section may request the division and the board to consider, at reasonable
             570      intervals, evidence presented by the naturopathic physician, under procedures established by
             571      division rule, regarding any change in the naturopathic physician's condition, to determine
             572      whether:
             573          (a) the physician is or is not able to safely and competently engage in the practice of
             574      medicine; and
             575          (b) the physician is qualified to have the physician's license to practice under this
             576      chapter restored completely or in part.
             577          Section 10. Section 62A-14-102 is amended to read:
             578           62A-14-102. Definitions.
             579          As used in this chapter:
             580          (1) "Conservator" is as defined in Section 75-1-201 .
             581          (2) "Court" is as defined in Section 75-1-201 .
             582          (3) "Estate" is as defined in Section 75-1-201 .
             583          (4) "Guardian" is as defined in Section 75-1-201 .
             584          (5) "Incapacitated [person]" means a person who has been determined by a court,
             585      pursuant to Section 75-5-303 , to be incapacitated, as defined in Section 75-1-201 , after the


             586      office has determined that the person is 18 years of age or older and suffers from a mental or
             587      physical impairment as part of the prepetition assessment in Section 62A-14-107 .
             588          (6) "Office" means the Office of Public Guardian.
             589          (7) "Property" is as defined in Section 75-1-201 .
             590          (8) "Ward" means an incapacitated person for whom the office has been appointed as
             591      guardian or conservator.
             592          Section 11. Section 75-1-201 is amended to read:
             593           75-1-201. General definitions.
             594          Subject to additional definitions contained in the subsequent chapters that are
             595      applicable to specific chapters, parts, or sections, and unless the context otherwise requires, in
             596      this code:
             597          (1) "Agent" includes an attorney-in-fact under a durable or nondurable power of
             598      attorney, an individual authorized to make decisions concerning another's health care, and an
             599      individual authorized to make decisions for another under a natural death act.
             600          (2) "Application" means a written request to the registrar for an order of informal
             601      probate or appointment under Title 75, Chapter 3, Part 3, Informal Probate and Appointment
             602      Proceedings.
             603          (3) "Beneficiary," as it relates to trust beneficiaries, includes a person who has any
             604      present or future interest, vested or contingent, and also includes the owner of an interest by
             605      assignment or other transfer; as it relates to a charitable trust, includes any person entitled to
             606      enforce the trust; as it relates to a "beneficiary of a beneficiary designation," refers to a
             607      beneficiary of an insurance or annuity policy, of an account with POD designation, of a security
             608      registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar
             609      benefit plan, or other nonprobate transfer at death; and, as it relates to a "beneficiary designated
             610      in a governing instrument," includes a grantee of a deed, a devisee, a trust beneficiary, a
             611      beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of
             612      appointment, and a person in whose favor a power of attorney or a power held in any
             613      individual, fiduciary, or representative capacity is exercised.
             614          (4) "Beneficiary designation" refers to a governing instrument naming a beneficiary of
             615      an insurance or annuity policy, of an account with POD designation, of a security registered in
             616      beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or


             617      other nonprobate transfer at death.
             618          (5) "Child" includes any individual entitled to take as a child under this code by
             619      intestate succession from the parent whose relationship is involved and excludes any person
             620      who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
             621          (6) "Claims," in respect to estates of decedents and protected persons, includes
             622      liabilities of the decedent or protected person, whether arising in contract, in tort, or otherwise,
             623      and liabilities of the estate which arise at or after the death of the decedent or after the
             624      appointment of a conservator, including funeral expenses and expenses of administration.
             625      "Claims" does not include estate or inheritance taxes, or demands or disputes regarding title of
             626      a decedent or protected person to specific assets alleged to be included in the estate.
             627          (7) "Conservator" means a person who is appointed by a court to manage the estate of a
             628      protected person.
             629          (8) "Court" means any of the courts of record in this state having jurisdiction in matters
             630      relating to the affairs of decedents.
             631          (9) "Descendant" of an individual means all of his descendants of all generations, with
             632      the relationship of parent and child at each generation being determined by the definition of
             633      child and parent contained in this title.
             634          (10) "Devise," when used as a noun, means a testamentary disposition of real or
             635      personal property and, when used as a verb, means to dispose of real or personal property by
             636      will.
             637          (11) "Devisee" means any person designated in a will to receive a devise. For the
             638      purposes of Title 75, Chapter 3, Probate of Wills and Administration, in the case of a devise to
             639      an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee is the
             640      devisee, and the beneficiaries are not devisees.
             641          (12) "Disability" means cause for a protective order as described by Section 75-5-401 .
             642          (13) "Distributee" means any person who has received property of a decedent from his
             643      personal representative other than as a creditor or purchaser. A testamentary trustee is a
             644      distributee only to the extent of distributed assets or increment thereto remaining in his hands.
             645      A beneficiary of a testamentary trust to whom the trustee has distributed property received from
             646      a personal representative is a distributee of the personal representative. For purposes of this
             647      provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to


             648      the extent of the devised assets.
             649          (14) "Estate" includes the property of the decedent, trust, or other person whose affairs
             650      are subject to this title as originally constituted and as it exists from time to time during
             651      administration.
             652          (15) "Exempt property" means that property of a decedent's estate which is described in
             653      Section 75-2-403 .
             654          (16) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
             655          (17) "Foreign personal representative" means a personal representative of another
             656      jurisdiction.
             657          (18) "Formal proceedings" means proceedings conducted before a judge with notice to
             658      interested persons.
             659          (19) "Governing instrument" means a deed, will, trust, insurance or annuity policy,
             660      account with POD designation, security registered in beneficiary form (TOD), pension,
             661      profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of
             662      appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of
             663      any similar type.
             664          (20) "Guardian" means a person who has qualified as a guardian of a minor or
             665      incapacitated person pursuant to testamentary or court appointment, or by written instrument as
             666      provided in Section 75-5-202.5 , but excludes one who is merely a guardian ad litem.
             667          (21) "Heirs," except as controlled by Section 75-2-711 , means persons, including the
             668      surviving spouse and state, who are entitled under the statutes of intestate succession to the
             669      property of a decedent.
             670          [(22) "Incapacitated person" means any person who is impaired by reason of mental
             671      illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic
             672      intoxication, or other cause, except minority, to the extent of lacking sufficient understanding
             673      or capacity to make or communicate responsible decisions.]
             674          (22) "Incapacitated" or "incapacity" is measured by functional limitations and means a
             675      judicial determination after proof by clear and convincing evidence that an adult's ability to do
             676      the following is impaired to the extent that the individual lacks the ability, even with
             677      appropriate technological assistance, to meet the essential requirements for financial protection
             678      or physical health, safety, or self-care:


             679          (a) receive and evaluate information;
             680          (b) make and communicate decisions; or
             681          (c) provide for necessities such as food, shelter, clothing, health care, or safety.
             682          (23) "Informal proceedings" mean those conducted without notice to interested persons
             683      by an officer of the court acting as a registrar for probate of a will or appointment of a personal
             684      representative.
             685          (24) "Interested person" includes heirs, devisees, children, spouses, creditors,
             686      beneficiaries, and any others having a property right in or claim against a trust estate or the
             687      estate of a decedent, ward, or protected person. It also includes persons having priority for
             688      appointment as personal representative, other fiduciaries representing interested persons, a
             689      settlor of a trust, if living, or the settlor's legal representative, if any, if the settlor is living but
             690      incapacitated. The meaning as it relates to particular persons may vary from time to time and
             691      shall be determined according to the particular purposes of, and matter involved in, any
             692      proceeding.
             693          (25) "Issue" of a person means descendant as defined in Subsection (9).
             694          (26) "Joint tenants with the right of survivorship" and "community property with the
             695      right of survivorship" includes coowners of property held under circumstances that entitle one
             696      or more to the whole of the property on the death of the other or others, but excludes forms of
             697      coownership registration in which the underlying ownership of each party is in proportion to
             698      that party's contribution.
             699          (27) "Lease" includes an oil, gas, or other mineral lease.
             700          (28) "Letters" includes letters testamentary, letters of guardianship, letters of
             701      administration, and letters of conservatorship.
             702          (29) "Minor" means a person who is under 18 years of age.
             703          (30) "Mortgage" means any conveyance, agreement, or arrangement in which property
             704      is used as security.
             705          (31) "Nonresident decedent" means a decedent who was domiciled in another
             706      jurisdiction at the time of his death.
             707          (32) "Organization" includes a corporation, limited liability company, business trust,
             708      estate, trust, partnership, joint venture, association, government or governmental subdivision or
             709      agency, or any other legal or commercial entity.


             710          (33) "Parent" includes any person entitled to take, or who would be entitled to take if
             711      the child died without a will, as a parent under this code by intestate succession from the child
             712      whose relationship is in question and excludes any person who is only a stepparent, foster
             713      parent, or grandparent.
             714          (34) "Payor" means a trustee, insurer, business entity, employer, government,
             715      governmental agency or subdivision, or any other person authorized or obligated by law or a
             716      governing instrument to make payments.
             717          (35) "Person" means an individual or an organization.
             718          (36) (a) "Personal representative" includes executor, administrator, successor personal
             719      representative, special administrator, and persons who perform substantially the same function
             720      under the law governing their status.
             721          (b) "General personal representative" excludes special administrator.
             722          (37) "Petition" means a written request to the court for an order after notice.
             723          (38) "Proceeding" includes action at law and suit in equity.
             724          (39) "Property" includes both real and personal property or any interest therein and
             725      means anything that may be the subject of ownership.
             726          (40) "Protected person" means a person for whom a conservator has been appointed. A
             727      "minor protected person" means a minor for whom a conservator has been appointed because
             728      of minority.
             729          (41) "Protective proceeding" means a proceeding described in Section 75-5-401 .
             730          (42) "Record" means information that is inscribed on a tangible medium or that is
             731      stored in an electronic or other medium and is retrievable in perceivable form.
             732          (43) "Registrar" refers to the official of the court designated to perform the functions of
             733      registrar as provided in Section 75-1-307 .
             734          (44) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of
             735      indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in
             736      payments out of production under such a title or lease, collateral trust certificate, transferable
             737      share, voting trust certificate, and, in general, any interest or instrument commonly known as a
             738      security, or any certificate of interest or participation, any temporary or interim certificate,
             739      receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of
             740      the foregoing.


             741          (45) "Settlement," in reference to a decedent's estate, includes the full process of
             742      administration, distribution, and closing.
             743          (46) "Sign" means, with present intent to authenticate or adopt a record other than a
             744      will:
             745          (a) to execute or adopt a tangible symbol; or
             746          (b) to attach to or logically associate with the record an electronic symbol, sound, or
             747      process.
             748          (47) "Special administrator" means a personal representative as described in Sections
             749      75-3-614 through 75-3-618 .
             750          (48) "State" means a state of the United States, the District of Columbia, the
             751      Commonwealth of Puerto Rico, any territory or insular possession subject to the jurisdiction of
             752      the United States, or a Native American tribe or band recognized by federal law or formally
             753      acknowledged by a state.
             754          (49) "Successor personal representative" means a personal representative, other than a
             755      special administrator, who is appointed to succeed a previously appointed personal
             756      representative.
             757          (50) "Successors" means persons, other than creditors, who are entitled to property of a
             758      decedent under the decedent's will or this title.
             759          (51) "Supervised administration" refers to the proceedings described in Title 75,
             760      Chapter 3, Part 5, Supervised Administration.
             761          (52) "Survive," except for purposes of Part 3 of Article VI, Uniform TOD Security
             762      Registration Act, means that an individual has neither predeceased an event, including the
             763      death of another individual, nor is considered to have predeceased an event under Section
             764      75-2-104 or 75-2-702 . The term includes its derivatives, such as "survives," "survived,"
             765      "survivor," and "surviving."
             766          (53) "Testacy proceeding" means a proceeding to establish a will or determine
             767      intestacy.
             768          (54) "Testator" includes an individual of either sex.
             769          (55) "Trust" includes a health savings account, as defined in Section 223, Internal
             770      Revenue Code, any express trust, private or charitable, with additions thereto, wherever and
             771      however created. The term also includes a trust created or determined by judgment or decree


             772      under which the trust is to be administered in the manner of an express trust. The term
             773      excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal
             774      representatives, trust accounts as defined in Title 75, Chapter 6, Nonprobate Transfers,
             775      custodial arrangements pursuant to any Uniform Transfers To Minors Act, business trusts
             776      providing for certificates to be issued to beneficiaries, common trust funds, voting trusts,
             777      preneed funeral plans under Title 58, Chapter 9, Funeral Services Licensing Act, security
             778      arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends,
             779      interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any
             780      arrangement under which a person is nominee or escrowee for another.
             781          (56) "Trustee" includes an original, additional, and successor trustee, and cotrustee,
             782      whether or not appointed or confirmed by the court.
             783          (57) "Ward" means a person for whom a guardian has been appointed. A "minor ward"
             784      is a minor for whom a guardian has been appointed solely because of minority.
             785          (58) "Will" includes codicil and any testamentary instrument which merely appoints an
             786      executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits
             787      the right of an individual or class to succeed to property of the decedent passing by intestate
             788      succession.
             789          Section 12. Section 75-2-1203 is amended to read:
             790           75-2-1203. Validity of nonvested property interest -- Validity of general power of
             791      appointment subject to a condition precedent -- Validity of nongeneral or testamentary
             792      power of appointment -- Effect of certain "later-of" type language.
             793          (1) A nonvested property interest is invalid unless within 1,000 years after the interest's
             794      creation the interest vests or terminates.
             795          (2) A general power of appointment not presently exercisable because of a condition
             796      precedent is invalid unless within 1,000 years after the general power of appointment's creation
             797      the power of appointment is irrevocably exercised or terminates.
             798          (3) A nongeneral power of appointment or a general testamentary power of
             799      appointment is invalid unless within 1,000 years after its creation the power of appointment is
             800      irrevocably exercised or terminates.
             801          (4) The language in a governing instrument is inoperative to the extent it produces a
             802      period of time that exceeds [21] 1,000 years after [the death of the survivor of the specified


             803      lives,] if, in measuring a period from the creation of a trust or other property arrangement, the
             804      language:
             805          (a) seeks to disallow the vesting or termination of any interest or trust beyond;
             806          (b) seeks to postpone the vesting or termination of any interest or trust until; or
             807          (c) seeks to operate in effect in any similar fashion upon, the later of:
             808          (i) the expiration of a period of time not exceeding [21] 1,000 years [after the death of
             809      the survivor of specified lives in being at the creation of the trust or other property
             810      arrangement]; or
             811          (ii) the expiration of a period of time that exceeds or might exceed [21] 1,000 years
             812      [after the death of the survivor of lives in being at the creation of the trust or other property
             813      arrangement].
             814          (5) If a nongeneral power of appointment is exercised to create a new presently
             815      exercisable general power of appointment, all property interests subject to that new presently
             816      exercisable general power of appointment are invalid unless, within 1,000 years after the
             817      creation of the new presently exercisable general power of appointment, the property interests
             818      that are subject to the new presently exercisable general power of appointment vest or
             819      terminate.
             820          (6) If a nongeneral power of appointment is exercised to create a new or successive
             821      nongeneral power of appointment or a new or successive testamentary general power of
             822      appointment, all property interests subject to the exercise of that new or successive nongeneral
             823      or testamentary general power of appointment are invalid unless, within 1,000 years from the
             824      time of creation of the original instrument or conveyance creating the original nongeneral
             825      power of appointment that is exercised to create a new or successive nongeneral or
             826      testamentary general power of appointment, the property interests that are subject to the new or
             827      successive nongeneral or testamentary general power of appointment vest or terminate.
             828          Section 13. Section 75-2-1204 is amended to read:
             829           75-2-1204. When nonvested property interest or power of appointment created.
             830          (1) Except as provided in Subsections (2) and (3) and in Section 75-2-1207 , the time of
             831      creation of a nonvested property interest or a power of appointment is determined under
             832      general principles of property law.
             833          (2) For purposes of this part, if there is a person who alone can exercise a power


             834      created by a governing instrument to become the unqualified beneficial owner of:
             835          (a) a nonvested property interest; or
             836          (b) a property interest subject to a power of appointment described in [Subsection]
             837      Section 75-2-1203 [(2)(a) or (b)], the nonvested property interest or power of appointment is
             838      created when the power to become the unqualified beneficial owner terminates.
             839          (3) For purposes of this title, a nonvested property interest or a power of appointment
             840      arising from a transfer of property to a previously funded trust or other existing property
             841      arrangement is created when the nonvested property interest or power of appointment in the
             842      original contribution was created.
             843          Section 14. Section 75-3-102 is amended to read:
             844           75-3-102. Necessity of order of probate for will.
             845          Except as provided in Section 75-3-1201 , to be effective to prove the transfer of any
             846      property or to nominate a personal representative, a will must be declared to be valid by an
             847      order of informal probate by the registrar, or an adjudication of probate by the court, except
             848      that a duly executed and unrevoked will which has not been probated may be admitted as
             849      evidence of a devise if both:
             850          (1) no court proceeding concerning the succession or administration of the estate [has
             851      occurred] was commenced during the time period for testacy proceedings; and
             852          (2) either the devisee or the devisee's successors and assigns possessed the property
             853      devised in accordance with the provisions of the will, or the property devised was not
             854      possessed or claimed by anyone by virtue of the decedent's title during the time period for
             855      testacy proceedings.
             856          Section 15. Section 75-3-107 is amended to read:
             857           75-3-107. Probate, testacy, and appointment proceedings -- Ultimate time limit --
             858      Presumption and order of intestacy.
             859          (1) No informal probate [or appointment] proceeding or formal testacy [or
             860      appointment] proceeding, other than a proceeding to probate a will previously probated at the
             861      testator's domicile and appointment proceedings relating to an estate in which there has been a
             862      prior appointment, may be commenced more than three years after the decedent's death, except:
             863          (a) If a previous proceeding was dismissed because of doubt about the fact of the
             864      decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained


             865      at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of
             866      the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the
             867      subsequent proceeding.
             868          (b) Appropriate probate, appointment, or testacy proceedings may be maintained in
             869      relation to the estate of an absent, disappeared, or missing person for whose estate a
             870      conservator has been appointed, at any time within three years after the conservator becomes
             871      able to establish the death of the protected person.
             872          (c) A proceeding to contest an informally probated will and to secure appointment of
             873      the person with legal priority for appointment in the event the contest is successful, may be
             874      commenced within the later of 12 months from the informal probate or three years from the
             875      decedent's death.
             876          (2) The limitations provided in Subsection (1) do not apply to proceedings to construe
             877      probated wills or determine heirs of an intestate. In cases under Subsection (1)(a) or (b), the
             878      date on which a testacy or appointment proceeding is properly commenced shall be deemed to
             879      be the date of the decedent's death for purposes of other limitations provisions of this title
             880      which relate to the date of death.
             881          (3) If no will is probated within three years from death, the presumption of intestacy is
             882      final and the court shall upon filing a proper petition enter an order to that effect [and provide
             883      for the distribution of the decedent's property in accordance with the laws of intestacy under
             884      Title 75, Chapter 2, Part 1,]. The court also has continuing jurisdiction to [handle all matters
             885      necessary to distribute the decedent's property, including jurisdiction to]:
             886          (a) determine what property was owned by the decedent at the time of death[.]; and
             887          (b) appoint a personal representative or special administrator to administer the
             888      decedent's estate.
             889          Section 16. Section 75-3-301 is amended to read:
             890           75-3-301. Informal probate or appointment proceedings -- Application --
             891      Contents.
             892          (1) Applications for informal probate or informal appointment shall be directed to the
             893      registrar, and verified by the applicant to be accurate and complete to the best of his knowledge
             894      and belief as to the appropriate information required under this section.
             895          (2) Every application for informal probate of a will or for informal appointment of a


             896      personal representative, other than a special or successor representative, shall contain the
             897      following:
             898          (a) a statement of the interest of the applicant;
             899          (b) the name and date of death of the decedent, his age, the county and state of his
             900      domicile at the time of death, and the names and addresses of the spouse, children, heirs, and
             901      devisees and the ages of any who are minors so far as known or ascertainable with reasonable
             902      diligence by the applicant;
             903          (c) if the decedent was not domiciled in the state at the time of his death, a statement
             904      showing venue;
             905          (d) a statement identifying and indicating the address of any personal representative of
             906      the decedent appointed in this state or elsewhere whose appointment has not been terminated;
             907          (e) a statement indicating whether the applicant has received a demand for notice or is
             908      aware of any demand for notice of any probate or appointment proceeding concerning the
             909      decedent that may have been filed in this state or elsewhere; and
             910          (f) that the time limit for informal probate or appointment as provided in this chapter
             911      has not expired either because three years or less have passed since the decedent's death, or if
             912      more than three years from death have passed, that circumstances as described by Section
             913      75-3-107 authorizing tardy probate or appointment have occurred.
             914          (3) An application for informal probate of a will shall state the following in addition to
             915      the statements required by Subsection (2):
             916          (a) that the original of the decedent's last will is:
             917          (i) in the possession of the court[, or];
             918          (ii) was presented to the court for electronic storage and electronic filing and is now in
             919      the possession of the applicant or the applicant's attorney; or
             920          (iii) accompanies the application, or that an authenticated copy of a will probated in
             921      another jurisdiction accompanies the application;
             922          (b) that the applicant, to the best of his knowledge, believes the will to have been
             923      validly executed; and
             924          (c) that after the exercise of reasonable diligence, the applicant is unaware of any
             925      instrument revoking the will, and that the applicant believes that the instrument which is the
             926      subject of the application is the decedent's last will.


             927          (4) An application for informal appointment of a personal representative to administer
             928      an estate under a will shall describe the will by date of execution and state the time and place of
             929      probate or the pending application or petition for probate. The application for appointment
             930      shall adopt the statements in the application or petition for probate, state the name, address and
             931      priority for appointment of the person whose appointment is sought, state whether or not bond
             932      is required, and, if required, unless specified by the will, state the estimated value of the
             933      personal and real estate of the decedent and of the income expected from the personal and real
             934      estate during the next year.
             935          (5) An application for informal appointment of an administrator in intestacy shall state
             936      in addition to the statements required by Subsection (2):
             937          (a) That after the exercise of reasonable diligence, the applicant is unaware of any
             938      unrevoked testamentary instrument relating to property having a situs in this state under
             939      Section 75-1-301 , or, a statement why any such instrument of which he may be aware is not
             940      being probated;
             941          (b) The priority of the person whose appointment is sought and the names of any other
             942      persons having a prior or equal right to the appointment under Section 75-3-203 ;
             943          (c) If bond is required, the estimated value of the personal and real estate of the
             944      decedent and of the income expected from the personal and real estate during the next year.
             945          (6) An application for appointment of a personal representative to succeed a personal
             946      representative appointed under a different testacy status shall refer to the order in the most
             947      recent testacy proceeding, state the name and address of the person whose appointment is
             948      sought and of the person whose appointment will be terminated if the application is granted,
             949      and describe the priority of the applicant.
             950          (7) An application for appointment of a personal representative to succeed a personal
             951      representative who has tendered a resignation as provided in Subsection 75-3-610 (3), or whose
             952      appointment has been terminated by death or removal, shall adopt the statements in the
             953      application or petition which led to the appointment of the person being succeeded, except as
             954      specifically changed or corrected, state the name and address of the person who seeks
             955      appointment as successor, and describe the priority of the applicant.
             956          Section 17. Section 75-3-303 is amended to read:
             957           75-3-303. Informal probate -- Proof and findings required.


             958          (1) In an informal proceeding for original probate of a will, the registrar shall
             959      determine whether:
             960          (a) the application is complete;
             961          (b) the applicant has made oath or affirmation that the statements contained in the
             962      application are true to the best of his knowledge and belief;
             963          (c) the applicant appears from the application to be an interested person as defined in
             964      Subsection 75-1-201 (24);
             965          (d) on the basis of the statements in the application, venue is proper;
             966          (e) an original, duly executed and apparently unrevoked will was presented to the court
             967      for electronic storage and electronic filing and is now in the possession of the applicant or the
             968      applicant's attorney, or is in the registrar's possession;
             969          (f) any notice required by Section 75-3-204 has been given and that the application is
             970      not within Section 75-3-304 ; and
             971          (g) it appears from the application that the time limit for original probate has not
             972      expired.
             973          (2) The application shall be denied if it indicates that a personal representative has
             974      been appointed in another county of this state or except as provided in Subsection (4), if it
             975      appears that this or another will of the decedent has been the subject of a previous probate
             976      order.
             977          (3) A will which appears to have the required signatures and which contains an
             978      attestation clause showing that requirements of execution under Section 75-2-502 , 75-2-503 , or
             979      75-2-506 have been met shall be probated without further proof. In other cases, the registrar
             980      may assume execution if the will appears to have been properly executed, or he may accept a
             981      sworn statement or affidavit of any person having knowledge of the circumstances of
             982      execution, whether or not the person was a witness to the will.
             983          (4) Informal probate of a will which has been previously probated elsewhere may be
             984      granted at any time upon written application by any interested person, together with deposit of
             985      an authenticated copy of the will and of the statement probating it from the office or court
             986      where it was first probated.
             987          (5) A will from a place which does not provide for probate of a will after death and
             988      which is not eligible for probate under Subsection (1) above may be probated in this state upon


             989      receipt by the registrar of a duly authenticated copy of the will and a duly authenticated
             990      certificate of its legal custodian that the copy filed is a true copy and that the will has become
             991      operative under the law of the other place.
             992          Section 18. Section 75-3-402 is amended to read:
             993           75-3-402. Formal testacy or appointment proceedings -- Petition -- Contents.
             994          (1) Petitions for formal probate of a will, or for adjudication of intestacy with or
             995      without request for appointment of a personal representative, [must] shall be directed to the
             996      court, request a judicial order after notice and hearing, and contain further statements as
             997      indicated in this section. A petition for formal probate of a will:
             998          (a) requests an order as to the testacy of the decedent in relation to a particular
             999      instrument which may or may not have been informally probated and determining the heirs;
             1000          (b) contains the statements required for informal applications as stated in Subsection
             1001      75-3-301 (2) and the statements required by Subsections 75-3-301 (3)(b) and (c), and, if the
             1002      petition requests appointment of a personal representative, the statements required by
             1003      Subsection 75-3-301 (4); and
             1004          (c) states whether the original of the last will of the decedent is in the possession of the
             1005      court [or], accompanies the petition[.], or was presented to the court for electronic storage or
             1006      electronic filing and is not in the possession of the petitioner or the petitioner's attorney.
             1007          (2) If the original will is [neither] not in the possession of the court [nor accompanies],
             1008      has not been presented to the court for electronic storage or electronic filing, does not
             1009      accompany the petition, and no authenticated copy of a will probated in another jurisdiction
             1010      accompanies the petition, the petition also [must] shall state the contents of the will and
             1011      indicate that it is lost, destroyed, or otherwise unavailable.
             1012          (3) A petition for adjudication of intestacy and appointment of an administrator in
             1013      intestacy [must] shall request a judicial finding and order that the decedent left no will and,
             1014      determining the heirs, contain the statements required by Subsections 75-3-301 (2) and
             1015      75-3-301 (5) and indicate whether supervised administration is sought. A petition may request
             1016      an order determining intestacy and heirs without requesting the appointment of an
             1017      administrator, in which case, the statements required by Subsection 75-3-301 (5)(b) [above]
             1018      may be omitted.
             1019          Section 19. Section 75-3-801 is amended to read:


             1020           75-3-801. Notice to creditors.
             1021          (1) (a) [Unless notice has already been given under this section, a] A personal
             1022      representative, upon [his] appointment [shall], may publish a notice to creditors announcing the
             1023      personal representative's appointment and address and notifying creditors of the estate to
             1024      present their claims within three months after the date of the first publication of the notice or be
             1025      forever barred.
             1026          (b) The notice described in Subsection (1)(a) shall be published:
             1027          (i) once a week for three successive weeks in a newspaper of general circulation in the
             1028      county; and
             1029          (ii) in accordance with Section 45-1-101 for three weeks.
             1030          (2) A personal representative may give written notice by mail or other delivery to any
             1031      creditor, notifying the creditor to present his claim within 90 days from the published notice if
             1032      given as provided in Subsection (1) above or within 60 days from the mailing or other delivery
             1033      of the notice, whichever is later, or be forever barred. Written notice shall be the notice
             1034      described in Subsection (1) above or a similar notice.
             1035          (3) The personal representative shall not be liable to any creditor or to any successor of
             1036      the decedent for giving or failing to give notice under this section.
             1037          (4) If the estate is being administered in accordance with Section 75-3-1201 , a notice to
             1038      creditors may be published in an affidavit in accordance with this section by the person
             1039      claiming to be the successor or the decedent.
             1040          Section 20. Section 75-5-303 is amended to read:
             1041           75-5-303. Procedure for court appointment of a guardian of an incapacitated
             1042      person.
             1043          (1) The incapacitated person or any person interested in the incapacitated person's
             1044      welfare may petition for a finding of incapacity and appointment of a guardian.
             1045          (2) Upon the filing of a petition, the court shall set a date for hearing on the issues of
             1046      incapacity. Unless the allegedly incapacitated person has counsel of the person's own choice,
             1047      the court shall appoint an attorney to represent the person in the proceeding the cost of which
             1048      shall be paid by the person alleged to be incapacitated. If the court determines that the petition
             1049      is without merit, the attorney fees and court costs shall be paid by the person filing the petition.
             1050      If the court appoints the petitioner or the petitioner's nominee as guardian of the incapacitated


             1051      person, regardless of whether the nominee is specified in the moving petition or nominated
             1052      during the proceedings, the petitioner shall be entitled to receive from the incapacitated person
             1053      reasonable attorney fees and court costs incurred in bringing [and], prosecuting, or defending
             1054      the petition.
             1055          (3) The legal representation of the incapacitated person by an attorney shall terminate
             1056      upon the appointment of a guardian, unless:
             1057          (a) there are separate conservatorship proceedings still pending before the court
             1058      subsequent to the appointment of a guardian;
             1059          [(b) the appointed guardian elects at the time to maintain the attorney's representation
             1060      of the incapacitated person;]
             1061          [(c)] (b) there is a timely filed appeal of the appointment of the guardian or the
             1062      determination of incapacity; or
             1063          [(d)] (c) upon an express finding of good cause, the court orders otherwise.
             1064          (4) The person alleged to be incapacitated may be examined by a physician appointed
             1065      by the court who shall submit a report in writing to the court and may be interviewed by a
             1066      visitor sent by the court. The visitor also may interview the person seeking appointment as
             1067      guardian, visit the present place of abode of the person alleged to be incapacitated and the place
             1068      it is proposed that the person will be detained or reside if the requested appointment is made,
             1069      conduct other investigations or observations as directed by the court, and submit a report in
             1070      writing to the court.
             1071          (5) (a) The person alleged to be incapacitated shall be present at the hearing in person
             1072      and see or hear all evidence bearing upon the person's condition. If the person seeking the
             1073      guardianship requests a waiver of presence of the person alleged to be incapacitated, the court
             1074      shall order an investigation by a court visitor, the costs of which shall be paid by the person
             1075      seeking the guardianship.
             1076          (b) The investigation by a court visitor is not required if there is clear and convincing
             1077      evidence from a physician that the person alleged to be incapacitated has:
             1078          (i) fourth stage Alzheimer's Disease;
             1079          (ii) extended comatosis; or
             1080          (iii) (A) an intellectual disability; and
             1081          (B) an intelligence quotient score under 20 to 25.


             1082          (c) The person alleged to be incapacitated is entitled to be represented by counsel, to
             1083      present evidence, to cross-examine witnesses, including the court-appointed physician and the
             1084      visitor, and to trial by jury. The issue may be determined at a closed hearing without a jury if
             1085      the person alleged to be incapacitated or the person's counsel so requests.
             1086          Section 21. Section 75-5-311 is amended to read:
             1087           75-5-311. Who may be guardian -- Priorities.
             1088          (1) As used in this section:
             1089          (a) "Specialized care professional" means a person who[:] is certified as a National
             1090      Certified Guardian or National Master Guardian by the Center for Guardianship Certification
             1091      or similar organization.
             1092          [(i) has been certified or designated as a provider of guardianship services by a
             1093      nationally recognized guardianship accrediting organization;]
             1094          [(ii) is licensed by or registered with the Division of Occupational and Professional
             1095      Licensing as a health care provider including, but not limited to, a registered nurse licensed
             1096      under Section 58-31b-301 , a social service worker, certified social worker, or clinical social
             1097      worker licensed under Section 58-60-205 , a marriage and family therapist licensed under
             1098      Section 58-60-305 , a physician licensed under Title 58, Chapter 67, or a psychologist licensed
             1099      under Title 58, Chapter 61; or]
             1100          [(iii) has been approved by the court as one with specialized training and experience in
             1101      the care of incapacitated persons.]
             1102          (b) "Suitable institution" means any nonprofit or for profit corporation, partnership,
             1103      sole proprietorship, or other type of business organization that is owned, operated by, or
             1104      employs a specialized care professional.
             1105          [(2) Any competent person or suitable institution may be appointed guardian of an
             1106      incapacitated person.]
             1107          [(3)] (2) The court shall appoint a guardian in accordance with the incapacitated
             1108      person's most recent nomination, unless that person is disqualified or the court finds other good
             1109      cause why the person should not serve as guardian. That nomination shall have been made
             1110      prior to the person's incapacity, shall be in writing and shall be signed by the person making the
             1111      nomination. The nomination shall be in substantially the following form:
             1112     
Nomination of Guardian by an Adult


             1113          I, (Name), being of sound mind and not acting under duress, fraud, or other undue
             1114      influence, do hereby nominate (Name, current residence, and relationship, if any, of the
             1115      nominee) to serve as my guardian in the event that after the date of this instrument I become
             1116      incapacitated.
             1117                  Executed at ____________________________ (city, state)
             1118                  on this ____________ day of ______________
             1119                          ____________________________________
             1120                                  (Signature)
             1121          [(4)] (3) Except as provided in Subsection [(3)] (2), persons who are not disqualified
             1122      have priority for appointment as guardian in the following order:
             1123          (a) a person who has been nominated by the incapacitated person, by any means other
             1124      than that described in Subsection [(3)] (2), if the incapacitated person was 14 years of age or
             1125      older when the nomination was executed and, in the opinion of the court, that person acted
             1126      with sufficient mental capacity to make the nomination;
             1127          (b) the spouse of the incapacitated person;
             1128          (c) an adult child of the incapacitated person;
             1129          (d) a parent of the incapacitated person, including a person nominated by will, written
             1130      instrument, or other writing signed by a deceased parent;
             1131          (e) any relative of the incapacitated person with whom he has resided for more than six
             1132      months prior to the filing of the petition;
             1133          (f) a person nominated by the person who is caring for him or paying benefits to him;
             1134      [or]
             1135          (g) a specialized care professional, so long as the specialized care professional does
             1136      not:
             1137          (i) profit financially or otherwise from or receive compensation for acting in that
             1138      capacity, except for the direct costs of providing guardianship or conservatorship services; or
             1139          (ii) otherwise have a conflict of interest in providing those services[.]; or
             1140          (h) any competent person or suitable institution.
             1141          Section 22. Section 75-5-312 is amended to read:
             1142           75-5-312. General powers and duties of guardian -- Penalties.
             1143          (1) A guardian of an incapacitated person has only the powers, rights, and duties


             1144      respecting the ward granted in the order of appointment under Section 75-5-304 .
             1145          (2) Absent a specific limitation on the guardian's power in the order of appointment,
             1146      the guardian has the same powers, rights, and duties respecting the ward that a parent has
             1147      respecting the parent's unemancipated minor child except that a guardian is not liable to third
             1148      persons for acts of the ward solely by reason of the parental relationship. In particular, and
             1149      without qualifying the foregoing, a guardian has the following powers and duties, except as
             1150      modified by order of the court:
             1151          (a) To the extent that it is consistent with the terms of any order by a court of
             1152      competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled
             1153      to custody of the person of the ward and may establish the ward's place of abode within or
             1154      without this state.
             1155          (b) If entitled to custody of the ward the guardian shall provide for the care, comfort,
             1156      and maintenance of the ward and, whenever appropriate, arrange for the ward's training and
             1157      education. Without regard to custodial rights of the ward's person, the guardian shall take
             1158      reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and
             1159      commence protective proceedings if other property of the ward is in need of protection.
             1160          (c) A guardian may give any consents or approvals that may be necessary to enable the
             1161      ward to receive medical or other professional care, counsel, treatment, or service.
             1162          (d) If no conservator for the estate of the ward has been appointed, the guardian may:
             1163          (i) institute proceedings to compel any person under a duty to support the ward or to
             1164      pay sums for the welfare of the ward to perform that duty; or
             1165          (ii) receive money and tangible property deliverable to the ward and apply the money
             1166      and property for support, care, and education of the ward; but the guardian may not use funds
             1167      from the ward's estate for room and board which the guardian, the guardian's spouse, parent, or
             1168      child have furnished the ward unless a charge for the service is approved by order of the court
             1169      made upon notice to at least one adult relative in the nearest degree of kinship to the ward in
             1170      which there is an adult. The guardian must exercise care to conserve any excess for the ward's
             1171      needs.
             1172          (e) (i) A guardian is required to report the condition of the ward and of the estate which
             1173      has been subject to the guardian's possession or control, as required by the court or court rule.
             1174          (ii) A guardian is required to immediately notify all interested persons if the guardian


             1175      reasonably believes that the ward's death is likely to occur within the next 30 days, based on:
             1176          (A) the guardian's own observations; or
             1177          (B) information from the ward's physician or other medical care providers.
             1178          (iii) A guardian is required to immediately notify all interested persons of the ward's
             1179      death.
             1180          (iv) Unless emergency conditions exist, a guardian is required to file with the court a
             1181      notice of the guardian's intent to move the ward and to serve the notice on all interested persons
             1182      at least 10 days before the move. The guardian shall take reasonable steps to notify all
             1183      interested persons and to file the notice with the court as soon as practicable following the
             1184      earlier of the move or the date when the guardian's intention to move the ward is made known
             1185      to the ward, the ward's care giver, or any other third party.
             1186          [(ii)] (v) The guardian shall, for all estates in excess of $50,000, excluding the
             1187      residence owned by the ward, send a report with a full accounting to the court on an annual
             1188      basis. For estates less than $50,000, excluding the residence owned by the ward, the guardian
             1189      shall fill out an informal annual report and mail the report to the court. The report shall include
             1190      the following: a statement of assets at the beginning and end of the reporting year, income
             1191      received during the year, disbursements for the support of the ward, and other expenses
             1192      incurred by the estate. The guardian shall also report the physical conditions of the ward, the
             1193      place of residence, and a list of others living in the same household. The court may require
             1194      additional information. The forms for both the informal report for estates under $50,000,
             1195      excluding the residence owned by the ward, and the full accounting report for larger estates
             1196      shall be approved by the Judicial Council. This annual report shall be examined and approved
             1197      by the court. If the ward's income is limited to a federal or state program requiring an annual
             1198      accounting report, a copy of that report may be submitted to the court in lieu of the required
             1199      annual report.
             1200          [(iii)] (vi) Corporate fiduciaries are not required to petition the court, but shall submit
             1201      their internal report annually to the court. The report shall be examined and approved by the
             1202      court.
             1203          [(iv)] (vii) The guardian shall also render an annual accounting of the status of the
             1204      person to the court which shall be included in the petition or the informal annual report as
             1205      required under Subsection (2)(e). If a fee is paid for an accounting of an estate, no fee shall be


             1206      charged for an accounting of the status of a person.
             1207          [(v)] (viii) If a guardian:
             1208          (A) makes a substantial misstatement on filings of annual reports;
             1209          (B) is guilty of gross impropriety in handling the property of the ward; or
             1210          (C) willfully fails to file the report required by this subsection, after receiving written
             1211      notice from the court of the failure to file and after a grace period of two months has elapsed,
             1212      the court may impose a penalty in an amount not to exceed $5,000. The court may also order
             1213      restitution of funds misappropriated from the estate of a ward. The penalty shall be paid by the
             1214      guardian and may not be paid by the estate.
             1215          [(vi)] (ix) These provisions and penalties governing annual reports do not apply if the
             1216      guardian is the parent of the ward.
             1217          (x) For the purposes of Subsections (2)(e)(i), (ii), (iii), and (iv), "interested persons"
             1218      means those persons required to receive notice in guardianship proceedings as set forth in
             1219      Section 75-5-309 .
             1220          (f) If a conservator has been appointed, all of the ward's estate received by the guardian
             1221      in excess of those funds expended to meet current expenses for support, care, and education of
             1222      the ward [must] shall be paid to the conservator for management as provided in this code; and
             1223      the guardian [must] shall account to the conservator for funds expended.
             1224          (3) Any guardian of one for whom a conservator also has been appointed shall control
             1225      the custody and care of the ward and is entitled to receive reasonable sums for services and for
             1226      room and board furnished to the ward as agreed upon between the guardian and the
             1227      conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian
             1228      may request the conservator to expend the ward's estate by payment to third persons or
             1229      institutions for the ward's care and maintenance.
             1230          Section 23. Section 75-5-407 is amended to read:
             1231           75-5-407. Procedure concerning hearing and order on original petition.
             1232          (1) Upon receipt of a petition for appointment of a conservator or other protective order
             1233      because of minority, the court shall set a date for the hearing on the matters alleged in the
             1234      petition. If, at any time in the proceeding, the court determines that the interests of the minor
             1235      are or may be inadequately represented, it may appoint an attorney to represent the minor,
             1236      giving consideration to the choice of the minor if 14 years of age or older. An attorney


             1237      appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
             1238          (2) Upon receipt of a petition for appointment of a conservator or other protective order
             1239      for reasons other than minority, the court shall set a date for hearing. Unless the person to be
             1240      protected has already retained counsel, the court may appoint an attorney to represent the
             1241      person to be protected who then has the powers and duties of a guardian ad litem.
             1242          (3) The legal representation of the protected person by an attorney shall terminate upon
             1243      the appointment of a conservator, unless:
             1244          (a) there are separate guardianship proceedings still pending before the court
             1245      subsequent to the appointment of a conservator;
             1246          [(b) the appointed conservator elects at the time to maintain the attorney's
             1247      representation of the protected person;]
             1248          [(c)] (b) there is a timely filed appeal of the appointment of the conservator [or the
             1249      determination of the incapacity]; or
             1250          [(d)] (c) upon an express finding of good cause, the court orders otherwise.
             1251          (4) If the alleged disability is mental illness, mental deficiency, physical illness or
             1252      disability, advanced age, chronic use of drugs, or chronic intoxication, the court may direct that
             1253      the person to be protected be examined by a physician designated by the court, preferably a
             1254      physician who is not connected with any institution in which the person is a patient or is
             1255      detained. The court may send a visitor to interview the person to be protected. The visitor may
             1256      be a guardian ad litem or an officer or employee of the court.
             1257          (5) After hearing, upon finding that a basis for the appointment of a conservator or
             1258      other protective order has been established, the court shall make an appointment or other
             1259      appropriate protective order.




Legislative Review Note
    as of 2-14-13 11:53 AM


Office of Legislative Research and General Counsel


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