H.B. 300

1

EXPANDED CONSERVATORSHIP AND
2 GUARDIANSHIP SERVICES FOR ELDERLY
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Afton B. Bradshaw
6 AN ACT RELATING TO THE UNIFORM PROBATE CODE AND FINANCIAL
7 INSTITUTIONS; AMENDING DEFINITIONS; PROVIDING FOR ADDITIONAL
8 INDIVIDUALS OR INSTITUTIONS WHO MAY BE GUARDIANS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 7-5-1, as last amended by Chapter 49, Laws of Utah 1995
12 75-5-311, as last amended by Chapter 41, Laws of Utah 1985
13 Be it enacted by the Legislature of the state of Utah:
14 Section 1. Section 7-5-1 is amended to read:
15 7-5-1. Definitions -- Allowable trust companies -- Exceptions.
16 (1) As used in this chapter:
17 (a) "Business trust" means an entity engaged in a trade or business that is created by a
18 declaration of trust that transfers property to trustees, to be held and managed by them for the
19 benefit of persons holding certificates representing the beneficial interest in the trust estate and
20 assets.
21 (b) "Trust business" means, except as provided in Subsection (1)(c), a business in which
22 one acts in any agency or fiduciary capacity, including that of personal representative, executor,
23 administrator, conservator, guardian, assignee, receiver, depositary, or trustee under appointment
24 as trustee for any purpose permitted by law, including the definition of "trust" set forth in
25 Subsection 75-1-201(45).
26 (c) "Trust business" does not include the following means of holding funds, assets, or other
27 property:

1 (i) funds held in a client trust account by an attorney authorized to practice law in this
2 state;
3 (ii) funds held in connection with the purchase or sale of real estate by a person authorized
4 to act as a real estate broker in this state;
5 (iii) funds or other assets held in escrow by a person authorized by the department in
6 accordance with Chapter 22 or by the Utah Insurance Department to act as an escrow agent in this
7 state;
8 (iv) funds held by a homeowners' association or similar organization to pay maintenance
9 and other related costs for commonly owned property;
10 (v) funds held in connection with the collection of debts or payments on loans by a person
11 acting solely as the agent or representative or otherwise at the sole direction of the person to which
12 the debt or payment is owed, including funds held by an escrow agent for payment of taxes or
13 insurance;
14 (vi) funds and other assets held in trust on an occasional or isolated basis by a person who
15 does not represent that he is engaged in the trust business in Utah;
16 (vii) funds or other assets found by a court to be held in an implied, resulting, or
17 constructive trust;
18 (viii) funds or other assets held by a court appointed conservator [or], guardian, receiver,
19 h TRUSTEE, h or other fiduciary if:
20 (A) h [ the conservatorship ] h [or] h [, receivership, guardianship, ] CONSERVATOR,
20a RECEIVER, GUARDIAN, TRUSTEE, h or other fiduciary h [relationship ] h is
21 [under continuous court supervision and] responsible to the court in the same manner as a personal
22 representative under Title 75, Chapter 3, Part 5 or as a receiver under Rule 66, Utah Rules of Civil
23 Procedure;
24 (B) no trust company is willing or eligible to serve as conservator h , GUARDIAN,
24a TRUSTEE, h or receiver[;] after notice
25 has been given pursuant to Section 75-1-401 to all trust companies doing business in this state,
26 including a statement of the value of the assets to be managed h , EXCEPT THAT NOTICE NEED NOT BE
26a PROVIDED IF A TRUST COMPANY HAS BEEN EMPLOYED BY THE FIDUCIARY TO MANAGE THE
26b ASSETS h ; and
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27 (C) h IN THE EVENT GUARDIANSHIP SERVICES ARE NEEDED, h the person seeking
27a appointment as a h [conservator, ] h guardian, h [receiver, or other fiduciary ] h
28 under this subsection is licensed by the Division of Occupational and Professional Licensing with
29 training in the care of incapacitated persons, including a registered nurse licensed under Section
30 58-31-9 h [, a ] HAVING AT LEAST A BACHELOR DEGREE IN NURSING, A SOCIAL SERVICE
30a WORKER, h certified social worker h [licensed under Section 58-60-205, a ] , OR h clinical
30b social worker
31 licensed under Section 58-60-205, a marriage and family therapist licensed under Section

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1 58-60-305, a physician licensed under Title 58, Chapter 67, a psychologist licensed under Title 58,
2 Chapter 61, or a business h OR STATE AGENCY h that employs the services of one of those
2a professionals for the purpose
3 of caring for the incapacitated person.
4 (ix) funds or other assets held by a credit services organization operating in compliance
5 with Title 13, Chapter 21, Credit Services Organizations Act;
6 (x) funds, securities, or other assets held in a customer account in connection with the
7 purchase or sale of securities by a regulated securities broker, dealer, or transfer agent; or
8 (xi) funds, assets, and other property held in a business trust for the benefit of holders of
9 certificates of beneficial interest if the fiduciary activities of the business trust are merely
10 incidental to conducting business in the business trust form.
11 (d) "Trust company" means an institution authorized to engage in the trust business under
12 this chapter. Only the following may be a trust company:
13 (i) a Utah depository institution or its wholly owned subsidiary;
14 (ii) an out-of-state depository institution authorized to engage in business as a depository
15 institution in Utah or its wholly owned subsidiary;
16 (iii) a direct or indirect subsidiary of a depository institution holding company that also
17 has a direct or indirect subsidiary authorized to engage in business as a depository institution in
18 Utah; and
19 (iv) any other corporation continuously and lawfully engaged in the trust business in this
20 state since before July 1, 1981.
21 (2) Only a trust company may engage in the trust business in this state.
22 (3) The requirements of this chapter do not apply to:
23 (a) an institution authorized to engage in a trust business in another state that is engaged
24 in trust activities in this state solely to fulfill its duties as a trustee of a trust created and
25 administered in another state; or
26 (b) a national bank, federal savings bank, federal savings and loan association, or federal
27 credit union authorized to engage in business as a depository institution in Utah, or any wholly
28 owned subsidiary of any of these, to the extent the institution is authorized by its primary federal
29 regulator to engage in the trust business in this state.
30 Section 2. Section 75-5-311 is amended to read:
31 75-5-311. Who may be guardian -- Priorities.

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1 (1) As used in this section:
2 (a) "Specialized care professional" means a person who is licensed by the Division of
3 Occupational and Professional Licensing as one with training in the care of incapacitated persons,
4 including a registered nurse licensed under Section 58-31-9 h [, a ] HAVING AT LEAST A BACHELOR
4a DEGREE IN NURSING, A SOCIAL SERVICE WORKER, h certified social worker h [licensed
5 under Section 58-60-205, a ] OR h clinical social worker licensed under Section 58-60-205, a
5a marriage
6 and family therapist licensed under Section 58-60-305, a physician licensed under Title 58,
7 Chapter 67, or a psychologist licensed under Title 58, Chapter 61.
8 (b) "Suitable institution" means any nonprofit or for profit corporation, partnership, sole
9 proprietorship, or other type of business organization that is owned, operated by, or employs a
10 specialized care professional.
11 [(1)] (2) Any competent person or [a] suitable institution may be appointed guardian of an
12 incapacitated person.
13 [(2)] (3) Persons who are not disqualified have priority for appointment as guardian in the
14 following order:
15 (a) the spouse of the incapacitated person;
16 (b) an adult child of the incapacitated person;
17 (c) a parent of the incapacitated person, including a person nominated by will, written
18 instrument, or other writing signed by a deceased parent;
19 (d) any relative of the incapacitated person with whom he has resided for more than six
20 months prior to the filing of the petition;
21 (e) a person nominated by the person who is caring for him or paying benefits to him[.];
22 or
23 (f) a specialized care professional.




Legislative Review Note
as of 1-27-97 12:25 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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