S.B. 39

1

OFFICE OF PUBLIC GUARDIAN
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Lyle W. Hillyard
5 AN ACT RELATING TO HUMAN SERVICES; CREATING THE OFFICE OF PUBLIC
6 GUARDIAN AND THE BOARD OF PUBLIC GUARDIAN SERVICES; ESTABLISHING THE
7 POWERS AND DUTIES OF THE OFFICE AND THE FUNCTION AND MAKE UP OF THE
8 BOARD; AUTHORIZING THE OFFICE TO SEEK COURT APPOINTMENT AS GUARDIAN
9 AND CONSERVATOR OF AN INCAPACITATED PERSON WHEN NO OTHER PERSON IS
10 WILLING AND ABLE TO DO SO; PERMITTING THE OFFICE TO ENTER INTO PRIVATE
11 CONTRACTS AND TO USE VOLUNTEERS TO PROVIDE GUARDIAN AND
12 CONSERVATOR SERVICES; REQUIRING THE WARD OR HIS ESTATE TO PAY FOR
13 OFFICE SERVICES UNLESS INDIGENT; S [ REQUIRING THE COUNTY ATTORNEY TO
14 REPRESENT THE OFFICE IN COURT; REQUIRING THE ATTORNEY GENERAL TO
15 REPRESENT THE OFFICE IN COURT IF THE COUNTY ATTORNEY FAILS TO DO SO; ]
15a REQUIRING THE ATTORNEY GENERAL TO REPRESENT THE OFFICE AND AUTHORIZING THE
15b ATTORNEY GENERAL TO REQUEST THE ASSISTANCE OF COUNTY ATTORNEYS; s
16 REQUIRING THE OFFICE TO SUBMIT AN IMPLEMENTATION PLAN; MAKING
17 CONFORMING AMENDMENTS; AND PROVIDING AN EFFECTIVE DATE.
18 This act affects sections of Utah Code Annotated 1953 as follows:
19 AMENDS:
20 62A-1-105, as last amended by Chapters 240 and 318, Laws of Utah 1996
21 62A-1-107, as last amended by Chapter 243, Laws of Utah 1996
22 ENACTS:
23 62A-14-101, Utah Code Annotated 1953
24 62A-14-102, Utah Code Annotated 1953
25 62A-14-103, Utah Code Annotated 1953
26 62A-14-104, Utah Code Annotated 1953
27 62A-14-105, Utah Code Annotated 1953

28 62A-14-106, Utah Code Annotated 1953
29 62A-14-107, Utah Code Annotated 1953
30 62A-14-108, Utah Code Annotated 1953
31 62A-14-109, Utah Code Annotated 1953
32 62A-14-110, Utah Code Annotated 1953
33 62A-14-111, Utah Code Annotated 1953
34 62A-14-112, Utah Code Annotated 1953
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 62A-1-105 is amended to read:
37 62A-1-105. Creation of boards, divisions, and offices.
38 (1) The following policymaking boards are created within the Department of Human
39 Services:
40 (a) the Board of Aging and Adult Services;
41 (b) the Board of Child and Family Services;
42 (c) the Board of Mental Health;
43 (d) the Board of Public Guardian Services;
44 [(d)] (e) the Board of Services for People with Disabilities;
45 [(e)] (f) the Board of Substance Abuse; and
46 [(f)] (g) the Board of Youth Corrections.
47 (2) The following divisions are created within the Department of Human Services:
48 (a) the Division of Aging and Adult Services;
49 (b) the Division of Child and Family Services;
50 (c) the Division of Mental Health;
51 (d) the Division of Services for People with Disabilities;
52 (e) the Division of Substance Abuse; and
53 (f) the Division of Youth Corrections.
54 (3) The following offices are created within the Department of Human Services:
55 (a) the Office of Licensing; [and]
56 (b) the Office of Public Guardian; and
57 [(b)] (c) the Office of Recovery Services.
58 Section 2. Section 62A-1-107 is amended to read:

59 62A-1-107. Boards within department -- Members, appointment, terms, vacancies,
60 chairperson, compensation, meetings, quorum.
61 (1) Except as specifically provided in Section 62A-4a-102 and 62A-14-106 regarding the
62 Board of Child and Family Services and the Board of Public Guardian Services, each board
63 described in Section 62A-1-105 shall have seven members who are appointed by the governor,
64 with the advice and consent of the Senate.
65 (2) (a) Except as required by Subsection (2)(b), each member shall be appointed for a term
66 of four years, and is eligible for one reappointment.
67 (b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time
68 of appointment or reappointment, adjust the length of terms to ensure that the terms of board
69 members are staggered so that approximately half of the board is appointed every two years.
70 (c) Board members shall continue in office until the expiration of their terms and until
71 their successors are appointed, which may not exceed 90 days after the formal expiration of a term.
72 (d) When a vacancy occurs in the membership for any reason, the replacement shall be
73 appointed for the unexpired term.
74 (3) No more than four members of any board may be from the same political party. Each
75 board shall have diversity of gender, ethnicity, and culture; and members shall be chosen on the
76 basis of their active interest, experience, and demonstrated ability to deal with issues related to
77 their specific boards.
78 (4) Each board shall annually elect a chairperson from its membership. Each board shall
79 hold meetings at least once every three months. Meetings shall be held from time to time on the
80 call of the chairperson or of the majority of the members of any board. Four members of a board
81 are necessary to constitute a quorum at any meeting, and, if a quorum exists, the action of the
82 majority of members present shall be the action of the board.
83 (5) (a) Members shall receive no compensation or benefits for their services, but may
84 receive per diem and expenses incurred in the performance of the member's official duties at the
85 rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
86 (b) Members may decline to receive per diem and expenses for their service.
87 (6) Each board shall adopt bylaws governing its activities. Bylaws shall include
88 procedures for removal of a board member who is unable or unwilling to fulfill the requirements
89 of his appointment.

90 (7) Each board has program policymaking authority for the division over which it presides.
91 Section 3. Section 62A-14-101 is enacted to read:
92 CHAPTER 14. OFFICE OF PUBLIC GUARDIAN ACT
93 62A-14-101. Title.
94 This chapter is known as the "Office of Public Guardian Act."
95 Section 4. Section 62A-14-102 is enacted to read:
96 62A-14-102. Definitions.
97 As used in this chapter:
98 (1) "Board" means the Board of Public Guardian Services.
99 (2) "Conservator" is as defined in Section 75-1-201 .
100 (3) "Court" is as defined in Section 75-1-201 .
101 (4) "Estate" is as defined in Section 75-1-201 .
102 (5) "Guardian" is as defined in Section 75-1-201 .
103 (6) "Incapacitated person" means a person who has been determined by a court, pursuant
104 to Section 75-5-303 , to be incapacitated after the office has determined that the person is 18 years
105 of age or older and suffers from a mental or physical impairment as part of the prepetition
106 assessment in Section 62A-14-107 .
107 (7) "Office" means the Office of Public Guardian.
108 (8) "Property" is as defined in Section 75-1-201 .
109 (9) "Ward" means an incapacitated person for whom the office has been appointed as
110 guardian or conservator.
111 Section 5. Section 62A-14-103 is enacted to read:
112 62A-14-103. Office of Public Guardian -- Creation.
113 (1) There is created within the department the Office of Public Guardian which has the
114 powers and duties provided in this chapter.
115 (2) The office is under the administrative and general supervision of the executive director.
116 Section 6. Section 62A-14-104 is enacted to read:
117 62A-14-104. Director of the office -- Appointment -- Qualifications.
118 (1) The director of the office shall be appointed by the executive director with the
119 concurrence of the board.
120 (2) The director shall have a bachelor's degree from an accredited university or college,

121 be experienced in administration, and be knowledgeable in matters concerning guardianship and
122 conservatorship.
123 (3) The director is the administrative head of the office.
124 Section 7. Section 62A-14-105 is enacted to read:
125 62A-14-105. Powers and duties of the office.
126 (1) The office shall:
127 (a) before January 1, 2000, develop and operate a statewide program to:
128 (i) educate the public about the role and functions of guardians and conservators; and
129 (ii) serve as a guardian, conservator, or both for a ward upon appointment by a court when
130 no other person is able and willing to do so S AND THE OFFICE PETITIONED FOR OR AGREED IN
130a ADVANCE TO THE APPOINTMENT s ;
131 (b) possess and exercise all the powers and duties specifically given to the office by virtue
132 of being appointed as guardian or conservator of a ward, including the power to access a ward's
133 records;
134 (c) review and monitor the personal and, if appropriate, financial status of each ward for
135 whom the office has been appointed to serve as guardian or conservator;
136 (d) train and monitor each employee and volunteer, and monitor each contract provider
137 to whom the office has delegated a responsibility for a ward;
138 (e) retain all court-delegated powers and duties for a ward;
139 (f) report on the personal and financial status of a ward as required by a court in
140 accordance with Title 75, Chapter 5, Protection of Persons under Disability and their Property;
141 (g) handle a ward's funds in accordance with the department's trust account system;
142 (h) request that the department's audit plan, established pursuant to Section 63-91-401 ,
143 include the requirement of an annual audit of all funds and property held by the office on behalf
144 of wards;
145 (i) maintain accurate records concerning each ward, his property, and office services
146 provided to him;
147 (j) make reasonable and continuous efforts to find a family member, friend, or other person
148 to serve as a ward's guardian or conservator;
149 (k) after termination as guardian or conservator, distribute a ward's property in accordance
150 with Title 75, Chapter 5, Protection of Persons under Disability and their Property;
151 (l) submit recommendations for changes in state law and funding to the governor and the

152 Legislature and report to the governor and Legislature, upon request; and
153 (m) implement and enforce policies established by the board.
154 (2) The office may:
155 (a) petition a court pursuant to Title 75, Chapter 5, Protection of Persons under Disability
156 and their Property, to be appointed an incapacitated person's guardian, conservator, or both after
157 conducting a prepetition assessment under Section 62A-14-107 ;
158 (b) develop and operate a statewide program to recruit, train, supervise, and monitor
159 volunteers to assist the office in providing guardian and conservator services;
160 (c) delegate one or more responsibilities for a ward to an employee, volunteer, or contract
161 provider S , EXCEPT AS PROVIDED IN SUBSECTION 62A-14-107(1) s ;
162 (d) solicit and receive private donations to provide guardian and conservator services under
163 this chapter; and
164 (e) adopt rules, in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking
165 Act, to:
166 (i) effectuate board policy; and
167 (ii) carry out the office's role as guardian and conservator of wards as provided in this
168 chapter.
169 Section 8. Section 62A-14-106 is enacted to read:
170 62A-14-106. Board of Public Guardian Services.
171 (1) The Board of Public Guardian Services, created in accordance with this section and
172 Section 62A-1-105 , is responsible for establishing the policy of the office in accordance with this
173 chapter and seeing that the legislative purposes for the office are carried out.
174 (2) The executive director shall appoint nine members to the Board of Public Guardian
175 Services, as follows:
176 (a) a member of the Board of Aging and Adult Services;
177 (b) a member of the Board of Services for Persons with Disabilities;
178 (c) a member of the Board of Mental Health;
179 (d) a representative of the long-term care industry;
180 (e) a representative of the hospital industry;
181 (f) a representative of persons with disabilities;
182 (g) a representative of senior citizens;

183 (h) a physician; and
184 (i) an attorney with experience in guardianship and conservatorship law.
185 (3) (a) Except as provided in Subsection (3)(b), each member shall be appointed for a
186 four-year term and eligible for one reappointment.
187 (b) Notwithstanding Subsection (3)(a), the executive director shall, at the time of
188 appointment or reappointment, adjust the length of terms to ensure that the terms of board
189 members are staggered so that approximately half of the board is appointed every two years, taking
190 into account the remaining term of board members who serve on other department boards.
191 (c) A board member shall continue in office until the expiration of the member's term and
192 until a successor is appointed, which may not exceed 90 days after the formal expiration of the
193 term.
194 (d) When a vacancy occurs in membership for any reason, the replacement shall be
195 appointed for the unexpired term.
196 (e) The make up of the board should reflect political and geographic diversity.
197 (4) The board shall annually elect a chairperson from its membership. The board shall
198 hold meetings at least once every three months. Meetings shall be held from time to time on the
199 call of the chairperson or a majority of the board members. Five board members are necessary to
200 constitute a quorum at any meeting and, if a quorum exists, the action of a majority of members
201 present shall be the action of the board.
202 (5) (a) Board members who are not government employees may not receive compensation
203 or benefits for their services, but may receive per diem and expenses incurred in the performance
204 of their official duties at rates established by the Division of Finance under Sections 63A-3-106
205 and 63A-3-107 .
206 (b) Members of the board may decline to receive per diem expenses for their services.
207 (6) The board shall:
208 (a) establish program policy for the office;
209 (b) establish a mechanism for systematic and regular review of existing policy and for
210 consideration of policy changes; and
211 (c) set fees for the office, excluding attorneys fees, in accordance with Section 63-38-3.2 .
212 Section 9. Section 62A-14-107 is enacted to read:
213 62A-14-107. Prepetition assessment and plan.

214 (1) Before the office may file a petition in court to be appointed guardian or conservator
215 of a person, the office shall:
216 (a) conduct a face-to-face needs assessment S , BY SOMEONE OTHER THAN A VOLUNTEER, s 216a to determine whether the person suffers from
217 a mental or physical impairment that renders the person substantially incapable of:
218 (i) caring for his personal safety;
219 (ii) managing his financial affairs; or
220 (iii) attending to and providing for such necessities as food, shelter, clothing, and medical
221 care, to the extent that physical injury or illness may result;
222 (b) assess the financial resources of the person based on information supplied to the office
223 at the time of assessment;
224 (c) inquire and, if appropriate, search to determine whether any other person may be
225 willing and able to serve as the person's guardian or conservator; and
226 (d) determine the form of guardianship or conservatorship to request of a court, if any,
227 giving preference to the least intensive form of guardianship or conservatorship, consistent with
228 the best interests of the person.
229 (2) The office shall prepare an individualized guardianship or conservator plan for each
230 ward within 60 days of appointment.
231 Section 10. Section 62A-14-108 is enacted to read:
232 62A-14-108. Office volunteers.
233 (1) A person who desires to be an office volunteer shall:
234 (a) possess demonstrated personal characteristics of honesty, integrity, compassion, and
235 concern for incapacitated persons; and
236 (b) upon request, submit information for a background check pursuant to Section
237 62A-1-118 .
238 (2) An office volunteer may not receive compensation or benefits, but may be reimbursed
239 by the office for expenses actually and reasonably incurred, consistent with Title 67, Chapter 20,
240 Volunteer Government Workers Act.
241 (3) An office volunteer is immune from civil liability pursuant to Title 63, Chapter 30b,
242 Immunity for Persons Performing Voluntary Services.
243 Section 11. Section 62A-14-109 is enacted to read:
244 62A-14-109. Contract for services.

245 (1) In accordance with Title 63, Chapter 56, Utah Procurement Code, the office may
246 contract with one or more providers to perform guardian and conservator duties.
247 (2) The office shall review and monitor the services provided by a contract provider to a
248 ward for whom the office has been appointed guardian or conservator.
249 Section 12. Section 62A-14-110 is enacted to read:
250 62A-14-110. Court, legal, and other costs.
250a S (1) THE OFFICE MAY NOT BE APPOINTED AS THE GUARDIAN OR CONSERVATOR OF A PERSON
250b UNLESS THE OFFICE PETITIONED FOR OR AGREED IN ADVANCE TO THE APPOINTMENT. s
251 S [(1)] (2) s Except as provided in Subsection S [ (3) ] (4) s , the court shall order the ward or the
251a ward's estate
252 to pay for the cost of services rendered under this chapter, including court costs and reasonable
253 attorneys' fees.
254 S [ (2) ] (3) s If the office recovers attorneys' fees under Subsection S [ (1) ] (2) s , the office shall
254a transmit
255 those fees to the attorneys who represented the ward or the office in connection with the ward's
256 case.
257 S [ (3) ] (4) s If a ward is indigent, the office shall provide guardian and conservator services free of
258 charge and shall make reasonable efforts to secure pro bono legal services for the ward.
259 S [ (4) ] (5) s Under no circumstances may court costs or attorneys' fees be assessed to the office.
260 Section 13. Section 62A-14-111 is enacted to read:
261 62A-14-111. Duty of the county attorney or district attorney.
262 S [ (1) The county attorney shall represent the office in connection with a petition for
263 appointment as guardian or conservator of an incapacitated person and with routine, subsequent
264 appearances.
265 (2) If the county attorney fails to act upon the request of the office within 30 days, the
266 office may request the attorney general to act, and the attorney general shall assume the
267 responsibility and carry the action forward in place of the county attorney. ] (1) THE ATTORNEY
267a GENERAL SHALL ADVISE THE OFFICE ON LEGAL MATTERS AND REPRESENT THE OFFICE IN
267b LEGAL PROCEEDINGS.
267c (2) UPON THE REQUEST OF THE ATTORNEY GENERAL, A COUNTY ATTORNEY MAY
267d REPRESENT THE OFFICE IN CONNECTION WITH THE FILING OF A PETITION FOR APPOINTMENT AS
267e GUARDIAN OR CONSERVATOR OF AN INCAPACITATED PERSON AND WITH ROUTINE,
267f SUBSEQUENT APPEARANCES. s
268 Section 14. Section 62A-14-112 is enacted to read:
269 62A-14-112. Implementation plan and independent evaluation.

270 (1) By September 15, 1999, the department, in consultation with the board, shall prepare
271 a comprehensive implementation plan for the services to be provided by the office under this
272 chapter. The implementation plan shall S FOCUS ON MAXIMIZING THE INDEPENDENCE OF
272a POTENTIAL AND ADJUDICATED WARDS AND s address such issues as case management standards,
272b client
273 rights, the delivery of services to home-based and institutionalized clients, geographic distribution
274 of services, S STATEWIDE CRISIS RESPONSE, s funding, and target dates. Prior to finalizing the
274a implementation plan, the department
275 shall seek public comment on the proposed implementation plan. The department shall submit a

276 copy of the plan to the Health and Human Services Interim Committee within five days of
277 finalizing the plan.
278 (2) By July 1, 2001, the office shall obtain an independent evaluation of its programs and
279 services. The office shall provide a copy of the evaluation to the board, the executive director, and
280 the Health and Human Services Interim Committee no later than September 15, 2001.
281 Section 15. Effective date.
282 This act takes effect on July 1, 1999.




Legislative Review Note
as of 1-22-99 10:49 AM

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

Office of Legislative Research and General Counsel