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H.B. 300 Enrolled

    

EXPANDED CONSERVATORSHIP AND

    
GUARDIANSHIP SERVICES FOR ELDERLY

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Afton B. Bradshaw

    AN ACT RELATING TO THE UNIFORM PROBATE CODE AND FINANCIAL
    INSTITUTIONS; AMENDING DEFINITIONS; PROVIDING FOR ADDITIONAL
    INDIVIDUALS OR INSTITUTIONS WHO MAY BE GUARDIANS.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         7-5-1, as last amended by Chapter 49, Laws of Utah 1995
         75-5-311, as last amended by Chapter 41, Laws of Utah 1985
         75-5-316, as last amended by Chapter 30, Laws of Utah 1992
         75-5-410, as enacted by Chapter 150, Laws of Utah 1975
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 7-5-1 is amended to read:
         7-5-1. Definitions -- Allowable trust companies -- Exceptions.
        (1) As used in this chapter:
        (a) "Business trust" means an entity engaged in a trade or business that is created by a
    declaration of trust that transfers property to trustees, to be held and managed by them for the
    benefit of persons holding certificates representing the beneficial interest in the trust estate and
    assets.
        (b) "Trust business" means, except as provided in Subsection (1)(c), a business in which
    one acts in any agency or fiduciary capacity, including that of personal representative, executor,
    administrator, conservator, guardian, assignee, receiver, depositary, or trustee under appointment
    as trustee for any purpose permitted by law, including the definition of "trust" set forth in
    Subsection 75-1-201(45).
        (c) "Trust business" does not include the following means of holding funds, assets, or other
    property:


        (i) funds held in a client trust account by an attorney authorized to practice law in this state;
        (ii) funds held in connection with the purchase or sale of real estate by a person authorized
    to act as a real estate broker in this state;
        (iii) funds or other assets held in escrow by a person authorized by the department in
    accordance with Chapter 22 or by the Utah Insurance Department to act as an escrow agent in this
    state;
        (iv) funds held by a homeowners' association or similar organization to pay maintenance and
    other related costs for commonly owned property;
        (v) funds held in connection with the collection of debts or payments on loans by a person
    acting solely as the agent or representative or otherwise at the sole direction of the person to which
    the debt or payment is owed, including funds held by an escrow agent for payment of taxes or
    insurance;
        (vi) funds and other assets held in trust on an occasional or isolated basis by a person who
    does not represent that he is engaged in the trust business in Utah;
        (vii) funds or other assets found by a court to be held in an implied, resulting, or constructive
    trust;
        (viii) funds or other assets held by a court appointed conservator [or], guardian, receiver,
    trustee, or other fiduciary if [the conservatorship or receivership is under continuous court
    supervision and]:
        (A) the conservator, receiver, guardian, trustee, or other fiduciary is responsible to the court
    in the same manner as a personal representative under Title 75, Chapter 3, Part 5, Supervised
    Administration, or as a receiver under Rule 66, Utah Rules of Civil Procedure;
        (B) the conservator, trustee, or other fiduciary is a certified public accountant or has
    qualified for and received a designation as a certified financial planner, chartered financial
    consultant, certified financial analyst, or similar designation suitable to the court, that evidences the
    conservator's, trustee's, or other fiduciary's professional competence to manage financial matters;
        (C) no trust company is willing or eligible to serve as conservator, guardian, trustee, or
    receiver[;] after notice has been given pursuant to Section 75-1-401 to all trust companies doing

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    business in this state, including a statement of the value of the assets to be managed. That notice
    need not be provided, however, if a trust company has been employed by the fiduciary to manage
    the assets; and
        (D) in the event guardianship services are needed, the person seeking appointment as a
    guardian under this subsection is a specialized care professional, as that term is defined in Section
    75-5-311, or a business or state agency that employs the services of one of those professionals for
    the purpose of caring for the incapacitated person, so long as the specialized care professional,
    business, or state agency does not:
        (I) profit financially or otherwise from, or receive compensation for acting in that capacity,
    except for the direct costs of providing guardianship or conservatorship services; or
        (II) otherwise have a conflict of interest in providing those services;
        (ix) funds or other assets held by a credit services organization operating in compliance with
    Title 13, Chapter 21, Credit Services Organizations Act;
        (x) funds, securities, or other assets held in a customer account in connection with the
    purchase or sale of securities by a regulated securities broker, dealer, or transfer agent; or
        (xi) funds, assets, and other property held in a business trust for the benefit of holders of
    certificates of beneficial interest if the fiduciary activities of the business trust are merely incidental
    to conducting business in the business trust form.
        (d) "Trust company" means an institution authorized to engage in the trust business under
    this chapter. Only the following may be a trust company:
        (i) a Utah depository institution or its wholly owned subsidiary;
        (ii) an out-of-state depository institution authorized to engage in business as a depository
    institution in Utah or its wholly owned subsidiary;
        (iii) a direct or indirect subsidiary of a depository institution holding company that also has
    a direct or indirect subsidiary authorized to engage in business as a depository institution in Utah;
    and
        (iv) any other corporation continuously and lawfully engaged in the trust business in this
    state since before July 1, 1981.

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        (2) Only a trust company may engage in the trust business in this state.
        (3) The requirements of this chapter do not apply to:
        (a) an institution authorized to engage in a trust business in another state that is engaged in
    trust activities in this state solely to fulfill its duties as a trustee of a trust created and administered
    in another state; [or]
        (b) a national bank, federal savings bank, federal savings and loan association, or federal
    credit union authorized to engage in business as a depository institution in Utah, or any wholly
    owned subsidiary of any of these, to the extent the institution is authorized by its primary federal
    regulator to engage in the trust business in this state; or
        (c) a state agency that is otherwise authorized by statute to act as a conservator, receiver,
    guardian, trustee, or in any other fiduciary capacity.
        Section 2. Section 75-5-311 is amended to read:
         75-5-311. Who may be guardian -- Priorities.
        (1) As used in this section:
        (a) "Specialized care professional" means a person who:
        (i) has been certified or designated as a provider of guardianship services by a nationally
    recognized guardianship accrediting organization;
        (ii) is licensed by or registered with the Division of Occupational and Professional Licensing
    as a health care provider including, but not limited to, a registered nurse licensed under Section
    58-31-9, a social service worker, certified social worker, or clinical social worker licensed under
    Section 58-60-205, a marriage and family therapist licensed under Section 58-60-305, a physician
    licensed under Title 58, Chapter 67, or a psychologist licensed under Title 58, Chapter 61; or
        (iii) has been approved by the court as one with specialized training and experience in the
    care of incapacitated persons.
        (b) "Suitable institution" means any nonprofit or for profit corporation, partnership, sole
    proprietorship, or other type of business organization that is owned, operated by, or employs a
    specialized care professional.
        [(1)] (2) Any competent person or [a] suitable institution may be appointed guardian of an

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    incapacitated person.
        (3) The court shall appoint a guardian in accordance with the incapacitated person's most
    recent nomination, unless that person is disqualified or the court finds other good cause why the
    person should not serve as guardian. That nomination shall have been made prior to the person's
    incapacity, shall be in writing and shall be signed by the person making the nomination. The
    nomination shall be in substantially the following form:
    
Nomination of Guardian by an Adult

        I, (Name) , being of sound mind and not acting under duress, fraud, or other
    undue influence, do hereby nominate (Name, current residence, and relationship, if any, of the
    nominee) to serve as my guardian in the event that after the date of this instrument I become
    incapacitated.
                Executed at (city, state)
                on this day of
                            
                                (Signature)
        [(2) Persons] (4) Except as provided in Subsection (3), persons who are not disqualified
    have priority for appointment as guardian in the following order:
        (a) a person who has been nominated by the incapacitated person, by any means other than
    that described in Subsection (3), if the incapacitated person was 14 years of age or older when the
    nomination was executed and, in the opinion of the court, that person acted with sufficient mental
    capacity to make the nomination;
        [(a)] (b) the spouse of the incapacitated person;
        [(b)] (c) an adult child of the incapacitated person;
        [(c)] (d) a parent of the incapacitated person, including a person nominated by will, written
    instrument, or other writing signed by a deceased parent;
        [(d)] (e) any relative of the incapacitated person with whom he has resided for more than six
    months prior to the filing of the petition;
        [(e)] (f) a person nominated by the person who is caring for him or paying benefits to him[.];

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    or
        (g) a specialized care professional, so long as the specialized care professional does not:
        (i) profit financially or otherwise from or receive compensation for acting in that capacity,
    except for the direct costs of providing guardianship or conservatorship services; or
        (ii) otherwise have a conflict of interest in providing those services.
        Section 3. Section 75-5-316 is amended to read:
         75-5-316. Expedited guardianship proceedings.
        (1) (a) With regard to persons who are residents of the Utah State Developmental Center,
    the expedited process provided by this section may be applied to obtain a limited guardianship.
        (b) For purposes of this section:
        (i) "Limited guardianship" means a guardianship solely for the purpose of granting consent
    for medical care and for participation in approval of the ward's individualized program plan.
        (ii) "Ward" means a resident of the Utah State Developmental Center who is the subject of
    guardianship proceedings under this section.
        (2) Any person interested in the incapacitated person's welfare may file a petition for a
    finding of incapacity and appointment of a guardian. That person may seek the limited guardianship
    pro se, using the forms described in this section. Any fee for filing a petition for a limited
    guardianship shall be waived if the guardian is proceeding under this section.
        (3) Upon filing a petition for limited guardianship under this section, the court shall set a
    date for hearing.
        (4) The ward has the right to be present at the hearing and to see and hear all evidence
    relating to his condition.
        (5) At that hearing the court shall review the affidavit of the superintendent of the Utah State
    Developmental Center, described in Subsection [(12)](11), and determine whether notice has been
    given to the appropriate persons described in Subsection (6).
        (6) If the proposed guardian is not a parent or relative of the ward, personal notice shall be
    given to the ward's spouse, parents, and any adult children of the ward. Personal notice shall also
    be given to [the Utah Legal Center for the Handicapped and] such other persons as the court may

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    direct.
        (7) The court may, in its discretion, appoint a guardian ad litem to represent the ward in the
    hearing, and may request independent evaluation by a physician appointed by the court. The
    physician shall submit his findings to the court in writing.
        [(8) The Utah Legal Center for the Handicapped shall have access to the ward, and to his
    files for purposes associated with the hearing for limited guardianship.]
        [(9)] (8) The court may grant the petition for a limited guardianship and sign the Order of
    Appointment if the court finds that:
        (a) the appropriate parties have been given notice;
        (b) the ward is incapacitated, based on the affidavit of the superintendent of the Utah State
    Developmental Center and any affidavit or testimony of persons entitled to receive notice or
    requested to present evidence under this section; and
        (c) it is necessary and desirable to establish the guardianship.
        [(10)] (9) Venue for these expedited guardianship proceedings shall be the same as that
    described in Section 75-5-302.
        [(11)] (10) A petition for a limited guardianship shall include the following information:
        (a) the interest of the petitioner;
        (b) the name, age, residence, and address of the ward;
        (c) verification that the ward is a resident of the Utah State Developmental Center;
        (d) the name and address of the nearest relative of the ward; and
        (e) the reason for appointment of guardianship.
        [(12)] (11) The petitioner shall also provide the court with an affidavit of the superintendent
    of the Utah State Developmental Center that includes the following information:
        (a) that the ward is a resident of the Utah State Developmental Center;
        (b) the date on which the ward was originally admitted to the Utah State Developmental
    Center;
        (c) the diagnosis of the ward, including a description of his handicapping condition, the level
    of retardation, and any medical or physical conditions;

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        (d) that the Utah State Developmental Center is certified as an Intermediate Care Facility
    for the Mentally Retarded under Title XIX of the Social Security Act;
        (e) that because of that certification, the Utah State Developmental Center receives financial
    participation from the United States Government for its operation and maintenance costs; and
        (f) that federal regulations under Title XIX require the ward to have a guardian appointed
    for the sole purpose of giving consent for medical and dental care and of participation in and
    approval of the ward's individual program plan.
        [(13)] (12) If the court finds that, under the requirements of this section the proposed limited
    guardian should be appointed, it shall enter an order establishing that limited guardianship in
    substantially the following form:
        The court finds that:
        (a) appointment of a limited guardianship for (named ward) is necessary and desirable as a
    means of providing continuing care and supervision and to ensure his welfare;
        (b) the ward is incapacitated;
        (c) (named guardian) is appointed as the limited guardian of (named ward); and
        (d) the guardianship is a limited guardianship solely for the purpose of:
        (i) granting permission for medical and dental care on behalf of the ward; and
        (ii) participation in the development and approval of the ward's individual program plan.
        [(14) A limited guardianship established under this section is automatically terminated when
    the ward is no longer a resident of the Utah State Developmental Center.]
        [(15)] (13) Appointment of guardianship under this section places no additional
    responsibility or liability on the guardian with regard to the ward. The limited guardianship is solely
    for consent for medical care and approval of the ward's individualized program plan, and shall not
    be construed to increase or create liability or responsibility for the guardian.
        Section 4. Section 75-5-410 is amended to read:
         75-5-410. Who may be appointed conservator -- Priorities.
        (1) The court may appoint an individual, or a corporation with general power to serve as
    trustee, as conservator of the estate of a protected person. The following are entitled to consideration

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    for appointment in the order listed:
        (a) a conservator, guardian of property, or other like fiduciary appointed or recognized by
    the appropriate court of any other jurisdiction in which the protected person resides;
        (b) an individual or corporation nominated by the protected person if he is 14 or more years
    of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
        (c) the court shall appoint a conservator in accordance with the protected person's most
    recent nomination, unless the potential conservator is disqualified or the court finds other good cause
    why that person should not serve as conservator. The nomination shall be in writing and shall be
    signed by the person making the nomination. The nomination shall be in substantially the following
    form:
    
Nomination of Conservator

        I, (Name) , being of sound mind and not acting under duress, fraud, or other
    undue influence, do hereby nominate (Name, current residence, and relationship, if any, of the
    nominee) to serve as the conservator of my property in the event that after the date of this
    instrument I become incapacitated or have other need for protection.
                Executed at (city, state)
                on this day of
                            
                                (Signature)
        (d) a person who has been nominated by the protected person, by any means other than that
    described in Subsection (c), if the protected person was 14 years of age or older when the nomination
    was executed and, in the opinion of the court, that person acted with sufficient mental capacity to
    make the nomination;
        [(c)] (e) the spouse of the protected person;
        [(d)] (f) an adult child of the protected person;
        [(e)] (g) a parent of the protected person, or a person nominated by the will of a deceased
    parent;
        [(f)] (h) any relative of the protected person with whom he has resided for more than six

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    months prior to the filing of the petition;
        [(g)] (i) a person nominated by the person who is caring for him or paying benefits to him.
        (2) A person in the priorities described in Subsection (1)(a), [(c), (d),] (e), [or] (f), (g), or (h)
    above may nominate in writing a person to serve in his stead. With respect to persons having equal
    priority, the court is to select the one who is best qualified of those willing to serve. The court, for
    good cause, may pass over a person having priority and appoint a person having less priority or no
    priority.

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