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First Substitute H.B. 231

Representative Kraig Powell proposes the following substitute bill:




Chief Sponsor: Kraig Powell

Senate Sponsor: Todd Weiler

             7      LONG TITLE
             8      General Description:
             9          This bill makes changes to the Utah Probate Code defining developmental disabilities
             10      and regarding guardian appointments.
             11      Highlighted Provisions:
             12          This bill:
             13          .    defines terms;
             14          .    requires a specialized care professional to be certified by the Center for
             15      Guardianship Certification;
             16          .    requires guardians to file a management plan within 90 days of appointment; and
             17          .    makes technical corrections.
             18      Money Appropriated in this Bill:
             19          None
             20      Other Special Clauses:
             21          This bill takes effect January 1, 2013.
             22      Utah Code Sections Affected:
             23      AMENDS:
             24          7-5-1, as last amended by Laws of Utah 2011, Chapter 289
             25          48-2c-708 (Repealed 07/01/12), as repealed by Laws of Utah 2011, Chapter 353

             26          75-1-201, as last amended by Laws of Utah 2010, Chapter 93
             27          75-3-303, as last amended by Laws of Utah 1998, Chapter 39
             28          75-3-308, as last amended by Laws of Utah 1998, Chapter 39
             29          75-5-303, as last amended by Laws of Utah 2011, Chapter 366
             30          75-5-311, as last amended by Laws of Utah 1998, Chapter 288
             31          75-5-312, as last amended by Laws of Utah 1992, Chapter 290
             33      Be it enacted by the Legislature of the state of Utah:
             34          Section 1. Section 7-5-1 is amended to read:
             35           7-5-1. Definitions -- Allowable trust companies -- Exceptions.
             36          (1) As used in this chapter:
             37          (a) "Business trust" means an entity engaged in a trade or business that is created by a
             38      declaration of trust that transfers property to trustees, to be held and managed by them for the
             39      benefit of persons holding certificates representing the beneficial interest in the trust estate and
             40      assets.
             41          (b) "Trust business" means, except as provided in Subsection (1)(c), a business in
             42      which one acts in any agency or fiduciary capacity, including that of personal representative,
             43      executor, administrator, conservator, guardian, assignee, receiver, depositary, or trustee under
             44      appointment as trustee for any purpose permitted by law, including the definition of "trust" set
             45      forth in [Subsection] Section 75-1-201 [(55)].
             46          (c) "Trust business" does not include the following means of holding money, assets, or
             47      other property:
             48          (i) money held in a client trust account by an attorney authorized to practice law in this
             49      state;
             50          (ii) money held in connection with the purchase or sale of real estate by a person
             51      licensed as a principal broker in accordance with Title 61, Chapter 2f, Real Estate Licensing
             52      and Practices Act;
             53          (iii) money or other assets held in escrow by a person authorized by the department in
             54      accordance with Chapter 22, Regulation of Independent Escrow Agents, or by the Utah
             55      Insurance Department to act as an escrow agent in this state;
             56          (iv) money held by a homeowners' association or similar organization to pay

             57      maintenance and other related costs for commonly owned property;
             58          (v) money held in connection with the collection of debts or payments on loans by a
             59      person acting solely as the agent or representative or otherwise at the sole direction of the
             60      person to which the debt or payment is owed, including money held by an escrow agent for
             61      payment of taxes or insurance;
             62          (vi) money and other assets held in trust on an occasional or isolated basis by a person
             63      who does not represent that the person is engaged in the trust business in Utah;
             64          (vii) money or other assets found by a court to be held in an implied, resulting, or
             65      constructive trust;
             66          (viii) money or other assets held by a court appointed conservator, guardian, receiver,
             67      trustee, or other fiduciary if:
             68          (A) the conservator, receiver, guardian, trustee, or other fiduciary is responsible to the
             69      court in the same manner as a personal representative under Title 75, Chapter 3, Part 5,
             70      Supervised Administration, or as a receiver under Rule 66, Utah Rules of Civil Procedure;
             71          (B) the conservator, trustee, or other fiduciary is a certified public accountant or has
             72      qualified for and received a designation as a certified financial planner, chartered financial
             73      consultant, certified financial analyst, or similar designation suitable to the court, that
             74      evidences the conservator's, trustee's, or other fiduciary's professional competence to manage
             75      financial matters;
             76          (C) no trust company is willing or eligible to serve as conservator, guardian, trustee, or
             77      receiver after notice has been given pursuant to Section 75-1-401 to all trust companies doing
             78      business in this state, including a statement of the value of the assets to be managed, that notice
             79      need not be provided, however, if a trust company has been employed by the fiduciary to
             80      manage the assets; and
             81          (D) in the event guardianship services are needed, the person seeking appointment as a
             82      guardian under this Subsection (1) is a specialized care professional, as that term is defined in
             83      Section 75-5-311 , or a business or state agency that employs the services of one of those
             84      professionals for the purpose of caring for the incapacitated person, so long as the specialized
             85      care professional, business, or state agency does not:
             86          (I) profit financially or otherwise from, or receive compensation for acting in that
             87      capacity, except for the direct costs of providing guardianship or conservatorship services; or

             88          (II) otherwise have a conflict of interest in providing those services;
             89          (ix) money or other assets held by a credit services organization operating in
             90      compliance with Title 13, Chapter 21, Credit Services Organizations Act;
             91          (x) money, securities, or other assets held in a customer account in connection with the
             92      purchase or sale of securities by a regulated securities broker, dealer, or transfer agent; or
             93          (xi) money, assets, and other property held in a business trust for the benefit of holders
             94      of certificates of beneficial interest if the fiduciary activities of the business trust are merely
             95      incidental to conducting business in the business trust form.
             96          (d) "Trust company" means an institution authorized to engage in the trust business
             97      under this chapter. Only the following may be a trust company:
             98          (i) a Utah depository institution or its wholly owned subsidiary;
             99          (ii) an out-of-state depository institution authorized to engage in business as a
             100      depository institution in Utah or its wholly owned subsidiary;
             101          (iii) a corporation, including a credit union service organization, owned entirely by one
             102      or more federally insured depository institutions as defined in Subsection 7-1-103 (8);
             103          (iv) a direct or indirect subsidiary of a depository institution holding company that also
             104      has a direct or indirect subsidiary authorized to engage in business as a depository institution in
             105      Utah; and
             106          (v) any other corporation continuously and lawfully engaged in the trust business in
             107      this state since before July 1, 1981.
             108          (2) Only a trust company may engage in the trust business in this state.
             109          (3) The requirements of this chapter do not apply to:
             110          (a) an institution authorized to engage in a trust business in another state that is
             111      engaged in trust activities in this state solely to fulfill its duties as a trustee of a trust created
             112      and administered in another state;
             113          (b) a national bank, federal savings bank, federal savings and loan association, or
             114      federal credit union authorized to engage in business as a depository institution in Utah, or any
             115      wholly owned subsidiary of any of these, to the extent the institution is authorized by its
             116      primary federal regulator to engage in the trust business in this state; or
             117          (c) a state agency that is otherwise authorized by statute to act as a conservator,
             118      receiver, guardian, trustee, or in any other fiduciary capacity.

             119          Section 2. Section 48-2c-708 (Repealed 07/01/12) is amended to read:
             120           48-2c-708 (Repealed 07/01/12). Cessation of membership.
             121          (1) A person who is a member of a company ceases to be a member of the company
             122      and the person or the person's successor in interest attains the status of an assignee as set forth
             123      in Section 48-2c-1102 , upon the occurrence of one or more of the following events:
             124          (a) the death of the member, except that the member's personal representative,
             125      executor, or administrator may exercise all of the member's rights for the purpose of settling
             126      the member's estate, including any power of an assignee and any power the member had under
             127      the articles of organization or operating agreement;
             128          (b) the incapacity of the member, as defined in [Subsection] Section 75-1-201 [(22)],
             129      except that the member's guardian or conservator or other legal representative may exercise all
             130      of the member's rights for the purpose of administering the member's property, including any
             131      power of an assignee and any power the member had under the articles of organization or
             132      operating agreement;
             133          (c) the member withdraws by voluntary act from the company as provided in Section
             134      48-2c-709 ;
             135          (d) upon the assignment of the member's entire interest in the company;
             136          (e) the member is expelled as a member pursuant to Section 48-2c-710 ; or
             137          (f) unless otherwise provided in the operating agreement, or with the written consent of
             138      all other members:
             139          (i) at the time the member:
             140          (A) makes a general assignment for the benefit of creditors;
             141          (B) files a voluntary petition in bankruptcy;
             142          (C) becomes the subject of an order for relief in bankruptcy proceedings;
             143          (D) files a petition or answer seeking for the member any reorganization, arrangement,
             144      composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or
             145      regulation;
             146          (E) files an answer or other pleading admitting or failing to contest the material
             147      allegations of a petition filed against the member in any proceeding of the nature described in
             148      Subsections (1)(f)(i)(A) through (D); or
             149          (F) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or

             150      liquidator of the member or of all or any substantial part of the member's properties;
             151          (ii) 120 days after the commencement of any proceeding against the member seeking
             152      reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar
             153      relief under any statute, law, or regulation, the proceeding has not been dismissed, or if within
             154      90 days after the appointment without his or her consent or acquiescence of a trustee, receiver,
             155      or liquidator of the member or of all or any substantial part of the member's properties, the
             156      appointment is not vacated or stayed, or within 90 days after the expiration of any stay, the
             157      appointment is not vacated;
             158          (iii) in the case of a member that is another limited liability company, the filing of
             159      articles of dissolution or the equivalent for that company or the judicial dissolution of that
             160      company or the administrative dissolution of that company and the lapse of any period allowed
             161      for reinstatement;
             162          (iv) in the case of a member that is a corporation, the filing of articles of dissolution or
             163      the equivalent for the corporation or the administrative dissolution of the corporation and the
             164      lapse of any period allowed for reinstatement; or
             165          (v) in the case of a member that is a limited partnership, the dissolution and
             166      commencement of winding up of the limited partnership.
             167          (2) The articles of organization or operating agreement may provide for other events
             168      the occurrence of which result in a person's ceasing to be a member of the company.
             169          Section 3. Section 75-1-201 is amended to read:
             170           75-1-201. General definitions.
             171          Subject to additional definitions contained in the subsequent chapters that are
             172      applicable to specific chapters, parts, or sections, and unless the context otherwise requires, in
             173      this code:
             174          (1) "Agent" includes an attorney-in-fact under a durable or nondurable power of
             175      attorney, an individual authorized to make decisions concerning another's health care, and an
             176      individual authorized to make decisions for another under a natural death act.
             177          (2) "Application" means a written request to the registrar for an order of informal
             178      probate or appointment under Title 75, Chapter 3, Part 3, Informal Probate and Appointment
             179      Proceedings.
             180          (3) "Beneficiary," as it relates to trust beneficiaries, includes a person who has any

             181      present or future interest, vested or contingent, and also includes the owner of an interest by
             182      assignment or other transfer; as it relates to a charitable trust, includes any person entitled to
             183      enforce the trust; as it relates to a "beneficiary of a beneficiary designation," refers to a
             184      beneficiary of an insurance or annuity policy, of an account with POD designation, of a security
             185      registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar
             186      benefit plan, or other nonprobate transfer at death; and, as it relates to a "beneficiary designated
             187      in a governing instrument," includes a grantee of a deed, a devisee, a trust beneficiary, a
             188      beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of
             189      appointment, and a person in whose favor a power of attorney or a power held in any
             190      individual, fiduciary, or representative capacity is exercised.
             191          (4) "Beneficiary designation" refers to a governing instrument naming a beneficiary of
             192      an insurance or annuity policy, of an account with POD designation, of a security registered in
             193      beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or
             194      other nonprobate transfer at death.
             195          (5) "Child" includes any individual entitled to take as a child under this code by
             196      intestate succession from the parent whose relationship is involved and excludes any person
             197      who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
             198          (6) "Claims," in respect to estates of decedents and protected persons, includes
             199      liabilities of the decedent or protected person, whether arising in contract, in tort, or otherwise,
             200      and liabilities of the estate which arise at or after the death of the decedent or after the
             201      appointment of a conservator, including funeral expenses and expenses of administration.
             202      "Claims" does not include estate or inheritance taxes, or demands or disputes regarding title of
             203      a decedent or protected person to specific assets alleged to be included in the estate.
             204          (7) "Conservator" means a person who is appointed by a court to manage the estate of a
             205      protected person.
             206          (8) "Court" means any of the courts of record in this state having jurisdiction in matters
             207      relating to the affairs of decedents.
             208          (9) "Descendant" of an individual means all of his descendants of all generations, with
             209      the relationship of parent and child at each generation being determined by the definition of
             210      child and parent contained in this title.
             211          (10) "Developmental disability" means a severe, chronic disability of an individual five

             212      years of age or older that:
             213          (a) is attributable to a mental or physical impairment or combination of mental and
             214      physical impairments;
             215          (b) is manifested before the individual attains age 22;
             216          (c) is likely to continue indefinitely;
             217          (d) results in substantial functional limitations in three or more of the following areas
             218      of major life activity;
             219          (i) self-care;
             220          (ii) receptive and expressive language;
             221          (iii) learning;
             222          (iv) mobility;
             223          (v) self-direction;
             224          (vi) capacity for independent living; and
             225          (vii) economic self-sufficiency; and
             226          (e) reflects the individual's need for a combination and sequence of special,
             227      interdisciplinary, or generic services, supports, or other assistance that is of lifelong or
             228      extended duration and is individually planned and coordinated, except that the term, when
             229      applied to infants and young children means individuals from birth to age five, inclusive, who
             230      have substantial developmental delay or specific congenital or acquired conditions with a high
             231      probability of resulting in developmental disabilities if services are not provided.
             232          [(10)] (11) "Devise," when used as a noun, means a testamentary disposition of real or
             233      personal property and, when used as a verb, means to dispose of real or personal property by
             234      will.
             235          [(11)] (12) "Devisee" means any person designated in a will to receive a devise. For
             236      the purposes of Title 75, Chapter 3, Probate of Wills and Administration, in the case of a
             237      devise to an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee
             238      is the devisee, and the beneficiaries are not devisees.
             239          [(12)] (13) "Disability" means cause for a protective order as described by Section
             240      75-5-401 .
             241          [(13)] (14) "Distributee" means any person who has received property of a decedent
             242      from his personal representative other than as a creditor or purchaser. A testamentary trustee is

             243      a distributee only to the extent of distributed assets or increment thereto remaining in his hands.
             244      A beneficiary of a testamentary trust to whom the trustee has distributed property received from
             245      a personal representative is a distributee of the personal representative. For purposes of this
             246      provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to
             247      the extent of the devised assets.
             248          [(14)] (15) "Estate" includes the property of the decedent, trust, or other person whose
             249      affairs are subject to this title as originally constituted and as it exists from time to time during
             250      administration.
             251          [(15)] (16) "Exempt property" means that property of a decedent's estate which is
             252      described in Section 75-2-403 .
             253          [(16)] (17) "Fiduciary" includes a personal representative, guardian, conservator, and
             254      trustee.
             255          [(17)] (18) "Foreign personal representative" means a personal representative of
             256      another jurisdiction.
             257          [(18)] (19) "Formal proceedings" means proceedings conducted before a judge with
             258      notice to interested persons.
             259          [(19)] (20) "Governing instrument" means a deed, will, trust, insurance or annuity
             260      policy, account with POD designation, security registered in beneficiary form (TOD), pension,
             261      profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of
             262      appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of
             263      any similar type.
             264          [(20)] (21) "Guardian" means a person who has qualified as a guardian of a minor or
             265      incapacitated person pursuant to testamentary or court appointment, or by written instrument as
             266      provided in Section 75-5-202.5 , but excludes one who is merely a guardian ad litem.
             267          [(21)] (22) "Heirs," except as controlled by Section 75-2-711 , means persons, including
             268      the surviving spouse and state, who are entitled under the statutes of intestate succession to the
             269      property of a decedent.
             270          [(22) "Incapacitated person" means any person who is impaired by reason of mental
             271      illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic
             272      intoxication, or other cause, except minority, to the extent of lacking sufficient understanding
             273      or capacity to make or communicate responsible decisions.]

             274          (23) "Incapacity" is measured by functional limitations and means a judicial
             275      determination after proof by clear and convincing evidence that an adult's ability to do any of
             276      the following is impaired to such an extent that the individual lacks the ability to meet essential
             277      requirements for financial protection or physical health, safety, or self-care:
             278          (a) receive and evaluate information;
             279          (b) make and communicate decisions;
             280          (c) provide for necessities such as food, shelter, clothing, health care, or safety; or
             281          (d) manage property.
             282          [(23)] (24) "Informal proceedings" mean those conducted without notice to interested
             283      persons by an officer of the court acting as a registrar for probate of a will or appointment of a
             284      personal representative.
             285          [(24)] (25) "Interested person" includes heirs, devisees, children, spouses, creditors,
             286      beneficiaries, and any others having a property right in or claim against a trust estate or the
             287      estate of a decedent, ward, or protected person. It also includes persons having priority for
             288      appointment as personal representative, other fiduciaries representing interested persons, a
             289      settlor of a trust, if living, or the settlor's legal representative, if any, if the settlor is living but
             290      incapacitated. The meaning as it relates to particular persons may vary from time to time and
             291      shall be determined according to the particular purposes of, and matter involved in, any
             292      proceeding.
             293          [(25)] (26) "Issue" of a person means descendant as defined in Subsection (9).
             294          [(26)] (27) "Joint tenants with the right of survivorship" and "community property with
             295      the right of survivorship" includes coowners of property held under circumstances that entitle
             296      one or more to the whole of the property on the death of the other or others, but excludes forms
             297      of coownership registration in which the underlying ownership of each party is in proportion to
             298      that party's contribution.
             299          [(27)] (28) "Lease" includes an oil, gas, or other mineral lease.
             300          [(28)] (29) "Letters" includes letters testamentary, letters of guardianship, letters of
             301      administration, and letters of conservatorship.
             302          [(29)] (30) "Minor" means a person who is under 18 years of age.
             303          [(30)] (31) "Mortgage" means any conveyance, agreement, or arrangement in which
             304      property is used as security.

             305          [(31)] (32) "Nonresident decedent" means a decedent who was domiciled in another
             306      jurisdiction at the time of his death.
             307          [(32)] (33) "Organization" includes a corporation, limited liability company, business
             308      trust, estate, trust, partnership, joint venture, association, government or governmental
             309      subdivision or agency, or any other legal or commercial entity.
             310          [(33)] (34) "Parent" includes any person entitled to take, or who would be entitled to
             311      take if the child died without a will, as a parent under this code by intestate succession from the
             312      child whose relationship is in question and excludes any person who is only a stepparent, foster
             313      parent, or grandparent.
             314          [(34)] (35) "Payor" means a trustee, insurer, business entity, employer, government,
             315      governmental agency or subdivision, or any other person authorized or obligated by law or a
             316      governing instrument to make payments.
             317          [(35)] (36) "Person" means an individual or an organization.
             318          [(36)] (37) (a) "Personal representative" includes executor, administrator, successor
             319      personal representative, special administrator, and persons who perform substantially the same
             320      function under the law governing their status.
             321          (b) "General personal representative" excludes special administrator.
             322          [(37)] (38) "Petition" means a written request to the court for an order after notice.
             323          [(38)] (39) "Proceeding" includes action at law and suit in equity.
             324          [(39)] (40) "Property" includes both real and personal property or any interest therein
             325      and means anything that may be the subject of ownership.
             326          [(40)] (41) "Protected person" means a person for whom a conservator has been
             327      appointed. A "minor protected person" means a minor for whom a conservator has been
             328      appointed because of minority.
             329          [(41)] (42) "Protective proceeding" means a proceeding described in Section 75-5-401 .
             330          [(42)] (43) "Record" means information that is inscribed on a tangible medium or that
             331      is stored in an electronic or other medium and is retrievable in perceivable form.
             332          [(43)] (44) "Registrar" refers to the official of the court designated to perform the
             333      functions of registrar as provided in Section 75-1-307 .
             334          [(44)] (45) "Security" includes any note, stock, treasury stock, bond, debenture,
             335      evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or

             336      lease or in payments out of production under such a title or lease, collateral trust certificate,
             337      transferable share, voting trust certificate, and, in general, any interest or instrument commonly
             338      known as a security, or any certificate of interest or participation, any temporary or interim
             339      certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or
             340      purchase, any of the foregoing.
             341          [(45)] (46) "Settlement," in reference to a decedent's estate, includes the full process of
             342      administration, distribution, and closing.
             343          [(46)] (47) "Sign" means, with present intent to authenticate or adopt a record other
             344      than a will:
             345          (a) to execute or adopt a tangible symbol; or
             346          (b) to attach to or logically associate with the record an electronic symbol, sound, or
             347      process.
             348          [(47)] (48) "Special administrator" means a personal representative as described in
             349      Sections 75-3-614 through 75-3-618 .
             350          [(48)] (49) "State" means a state of the United States, the District of Columbia, the
             351      Commonwealth of Puerto Rico, any territory or insular possession subject to the jurisdiction of
             352      the United States, or a Native American tribe or band recognized by federal law or formally
             353      acknowledged by a state.
             354          [(49)] (50) "Successor personal representative" means a personal representative, other
             355      than a special administrator, who is appointed to succeed a previously appointed personal
             356      representative.
             357          [(50)] (51) "Successors" means persons, other than creditors, who are entitled to
             358      property of a decedent under the decedent's will or this title.
             359          [(51)] (52) "Supervised administration" refers to the proceedings described in Title 75,
             360      Chapter 3, Part 5, Supervised Administration.
             361          [(52)] (53) "Survive," except for purposes of Part 3 of Article VI, Uniform TOD
             362      Security Registration Act, means that an individual has neither predeceased an event, including
             363      the death of another individual, nor is considered to have predeceased an event under Section
             364      75-2-104 or 75-2-702 . The term includes its derivatives, such as "survives," "survived,"
             365      "survivor," and "surviving."
             366          [(53)] (54) "Testacy proceeding" means a proceeding to establish a will or determine

             367      intestacy.
             368          [(54)] (55) "Testator" includes an individual of either sex.
             369          [(55)] (56) "Trust" includes a health savings account, as defined in Section 223,
             370      Internal Revenue Code, any express trust, private or charitable, with additions thereto,
             371      wherever and however created. The term also includes a trust created or determined by
             372      judgment or decree under which the trust is to be administered in the manner of an express
             373      trust. The term excludes other constructive trusts, and it excludes resulting trusts,
             374      conservatorships, personal representatives, trust accounts as defined in Title 75, Chapter 6,
             375      Nonprobate Transfers, custodial arrangements pursuant to any Uniform Transfers To Minors
             376      Act, business trusts providing for certificates to be issued to beneficiaries, common trust funds,
             377      voting trusts, preneed funeral plans under Title 58, Chapter 9, Funeral Services Licensing Act,
             378      security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts,
             379      dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any
             380      arrangement under which a person is nominee or escrowee for another.
             381          [(56)] (57) "Trustee" includes an original, additional, and successor trustee, and
             382      cotrustee, whether or not appointed or confirmed by the court.
             383          [(57)] (58) "Ward" means a person for whom a guardian has been appointed. A "minor
             384      ward" is a minor for whom a guardian has been appointed solely because of minority.
             385          [(58)] (59) "Will" includes codicil and any testamentary instrument which merely
             386      appoints an executor, revokes or revises another will, nominates a guardian, or expressly
             387      excludes or limits the right of an individual or class to succeed to property of the decedent
             388      passing by intestate succession.
             389          Section 4. Section 75-3-303 is amended to read:
             390           75-3-303. Informal probate -- Proof and findings required.
             391          (1) In an informal proceeding for original probate of a will, the registrar shall
             392      determine whether:
             393          (a) the application is complete;
             394          (b) the applicant has made oath or affirmation that the statements contained in the
             395      application are true to the best of his knowledge and belief;
             396          (c) the applicant appears from the application to be an interested person as defined in
             397      [Subsection] Section 75-1-201 [(24)];

             398          (d) on the basis of the statements in the application, venue is proper;
             399          (e) an original, duly executed and apparently unrevoked will is in the registrar's
             400      possession;
             401          (f) any notice required by Section 75-3-204 has been given and that the application is
             402      not within Section 75-3-304 ; and
             403          (g) it appears from the application that the time limit for original probate has not
             404      expired.
             405          (2) The application shall be denied if it indicates that a personal representative has
             406      been appointed in another county of this state or except as provided in Subsection (4), if it
             407      appears that this or another will of the decedent has been the subject of a previous probate
             408      order.
             409          (3) A will which appears to have the required signatures and which contains an
             410      attestation clause showing that requirements of execution under Section 75-2-502 , 75-2-503 , or
             411      75-2-506 have been met shall be probated without further proof. In other cases, the registrar
             412      may assume execution if the will appears to have been properly executed, or he may accept a
             413      sworn statement or affidavit of any person having knowledge of the circumstances of
             414      execution, whether or not the person was a witness to the will.
             415          (4) Informal probate of a will which has been previously probated elsewhere may be
             416      granted at any time upon written application by any interested person, together with deposit of
             417      an authenticated copy of the will and of the statement probating it from the office or court
             418      where it was first probated.
             419          (5) A will from a place which does not provide for probate of a will after death and
             420      which is not eligible for probate under Subsection (1) above may be probated in this state upon
             421      receipt by the registrar of a duly authenticated copy of the will and a duly authenticated
             422      certificate of its legal custodian that the copy filed is a true copy and that the will has become
             423      operative under the law of the other place.
             424          Section 5. Section 75-3-308 is amended to read:
             425           75-3-308. Informal appointment proceedings -- Proof and findings required.
             426          (1) In informal appointment proceedings, the registrar shall determine whether:
             427          (a) the application for informal appointment of a personal representative is complete;
             428          (b) the applicant has made oath or affirmation that the statements contained in the

             429      application are true to the best of his knowledge and belief;
             430          (c) the applicant appears from the application to be an interested person as defined in
             431      [Subsection] Section 75-1-201 [(24)];
             432          (d) on the basis of the statements in the application, venue is proper;
             433          (e) any will to which the requested appointment relates has been formally or informally
             434      probated; but this requirement does not apply to the appointment of a special administrator;
             435          (f) any notice required by Section 75-3-204 has been given; and
             436          (g) from the statements in the application, the person whose appointment is sought has
             437      priority entitling him to the appointment.
             438          (2) Unless Section 75-3-612 controls, the application shall be denied if it indicates that
             439      a personal representative who has not filed a written statement of resignation as provided in
             440      Subsection 75-3-610 (3) has been appointed in this or another county of this state, that (unless
             441      the applicant is the domiciliary personal representative or his nominee) the decedent was not
             442      domiciled in this state, and that a personal representative whose appointment has not been
             443      terminated has been appointed by a court in the state of domicile, or that other requirements of
             444      this section have not been met.
             445          Section 6. Section 75-5-303 is amended to read:
             446           75-5-303. Procedure for court appointment of a guardian of an incapacitated
             447      person.
             448          (1) The incapacitated person or any person interested in the incapacitated person's
             449      welfare may petition for a finding of incapacity and appointment of a guardian.
             450          (2) Upon the filing of a petition, the court shall set a date for hearing on the issues of
             451      incapacity; and unless the allegedly incapacitated person has counsel of the person's own
             452      choice, it shall appoint an attorney to represent the person in the proceeding the cost of which
             453      shall be paid by the person alleged to be incapacitated, unless the court determines that the
             454      petition is without merit, in which case the attorney fees and court costs shall be paid by the
             455      person filing the petition.
             456          (3) The person alleged to be incapacitated may be examined by a physician appointed
             457      by the court who shall submit a report in writing to the court and may be interviewed by a
             458      visitor sent by the court. The visitor also may interview the person seeking appointment as
             459      guardian, visit the present place of abode of the person alleged to be incapacitated and the place

             460      it is proposed that the person will be detained or reside if the requested appointment is made,
             461      conduct other investigations or observations as directed by the court, and submit a report in
             462      writing to the court.
             463          (4) (a) The person alleged to be incapacitated shall be present at the hearing in person
             464      and see or hear all evidence bearing upon the person's condition. If the person seeking the
             465      guardianship requests a waiver of presence of the person alleged to be incapacitated, the court
             466      shall order an investigation by a court visitor, the costs of which shall be paid by the person
             467      seeking the guardianship.
             468          (b) The investigation by a court visitor is not required if there is clear and convincing
             469      evidence from a physician that the person alleged to be incapacitated has:
             470          (i) fourth stage Alzheimer's Disease;
             471          (ii) extended comatosis; or
             472          (iii) (A) an intellectual disability; and
             473          (B) an intelligence quotient score under 20 to 25.
             474          (c) The person alleged to be incapacitated is entitled to be represented by counsel, to
             475      present evidence, to cross-examine witnesses, including the court-appointed physician and the
             476      visitor, and to trial by jury. The issue may be determined at a closed hearing without a jury if
             477      the person alleged to be incapacitated or the person's counsel so requests.
             478          Section 7. Section 75-5-311 is amended to read:
             479           75-5-311. Who may be guardian -- Priorities.
             480          (1) As used in this section:
             481          (a) "Specialized care professional" means a person who[: (i)] has been certified [or
             482      designated as a provider of guardianship services by a nationally recognized guardianship
             483      accrediting organization] as a National Certified Guardian or National Master Guardian by the
             484      Center for Guardianship Certification;
             485          [(ii) is licensed by or registered with the Division of Occupational and Professional
             486      Licensing as a health care provider including, but not limited to, a registered nurse licensed
             487      under Section 58-31b-301 , a social service worker, certified social worker, or clinical social
             488      worker licensed under Section 58-60-205 , a marriage and family therapist licensed under
             489      Section 58-60-305 , a physician licensed under Title 58, Chapter 67, or a psychologist licensed
             490      under Title 58, Chapter 61; or]

             491          [(iii) has been approved by the court as one with specialized training and experience in
             492      the care of incapacitated persons.]
             493          (b) "Suitable institution" means any nonprofit or for profit corporation, partnership,
             494      sole proprietorship, or other type of business organization that is owned, operated by, or
             495      employs a specialized care professional.
             496          [(2) Any competent person or suitable institution may be appointed guardian of an
             497      incapacitated person.]
             498          [(3)] (2) The court shall appoint a guardian in accordance with the incapacitated
             499      person's most recent nomination, unless that person is disqualified or the court finds other good
             500      cause why the person should not serve as guardian. That nomination shall have been made
             501      prior to the person's incapacity, shall be in writing and shall be signed by the person making the
             502      nomination. The nomination shall be in substantially the following form:
Nomination of Guardian by an Adult

             504          I, (Name), being of sound mind and not acting under duress, fraud, or other undue
             505      influence, do hereby nominate (Name, current residence, and relationship, if any, of the
             506      nominee) to serve as my guardian in the event that after the date of this instrument I become
             507      incapacitated.
             508                  Executed at ____________________________ (city, state)
             509                  on this ____________ day of ______________
             510                          ____________________________________
             511                                  (Signature)
             512          [(4)] (3) Except as provided in Subsection [(3)] (2), persons who are not disqualified
             513      have priority for appointment as guardian in the following order:
             514          (a) a person who has been nominated by the incapacitated person, by any means other
             515      than that described in Subsection [(3)] (2), if the incapacitated person was 14 years of age or
             516      older when the nomination was executed and, in the opinion of the court, that person acted
             517      with sufficient mental capacity to make the nomination;
             518          (b) the spouse of the incapacitated person;
             519          (c) an adult child of the incapacitated person;
             520          (d) a parent of the incapacitated person, including a person nominated by will, written
             521      instrument, or other writing signed by a deceased parent;

             522          (e) any relative of the incapacitated person with whom he has resided for more than six
             523      months prior to the filing of the petition;
             524          (f) a person nominated by the person who is caring for him or paying benefits to him;
             525      [or]
             526          (g) a specialized care professional, so long as the specialized care professional does
             527      not:
             528          (i) profit financially or otherwise from or receive compensation for acting in that
             529      capacity, except for the direct costs of providing guardianship or conservatorship services; or
             530          (ii) otherwise have a conflict of interest in providing those services[.]; or
             531          (h) any competent person or suitable institution.
             532          Section 8. Section 75-5-312 is amended to read:
             533           75-5-312. General powers and duties of guardian -- Penalties.
             534          (1) A guardian of an incapacitated person has only the powers, rights, and duties
             535      respecting the ward granted in the order of appointment under Section 75-5-304 .
             536          (2) Absent a specific limitation on the guardian's power in the order of appointment,
             537      the guardian has the same powers, rights, and duties respecting the ward that a parent has
             538      respecting the parent's unemancipated minor child except that a guardian is not liable to third
             539      persons for acts of the ward solely by reason of the parental relationship. In particular, and
             540      without qualifying the foregoing, a guardian has the following powers and duties, except as
             541      modified by order of the court:
             542          (a) To the extent that it is consistent with the terms of any order by a court of
             543      competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled
             544      to custody of the person of the ward and may establish the ward's place of abode within or
             545      without this state.
             546          (b) If entitled to custody of the ward the guardian shall provide for the care, comfort,
             547      and maintenance of the ward and, whenever appropriate, arrange for the ward's training and
             548      education. Without regard to custodial rights of the ward's person, the guardian shall take
             549      reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and
             550      commence protective proceedings if other property of the ward is in need of protection.
             551          (c) A guardian may give any consents or approvals that may be necessary to enable the
             552      ward to receive medical or other professional care, counsel, treatment, or service.

             553          (d) If no conservator for the estate of the ward has been appointed, the guardian may:
             554          (i) institute proceedings to compel any person under a duty to support the ward or to
             555      pay sums for the welfare of the ward to perform that duty; or
             556          (ii) receive money and tangible property deliverable to the ward and apply the money
             557      and property for support, care, and education of the ward; but the guardian may not use funds
             558      from the ward's estate for room and board which the guardian, the guardian's spouse, parent, or
             559      child have furnished the ward unless a charge for the service is approved by order of the court
             560      made upon notice to at least one adult relative in the nearest degree of kinship to the ward in
             561      which there is an adult. The guardian must exercise care to conserve any excess for the ward's
             562      needs.
             563          (e) (i) A guardian is required to report the condition of the ward and of the estate which
             564      has been subject to the guardian's possession or control, as required by the court or court rule.
             565          (ii) The guardian shall, for all estates in excess of $50,000, excluding the residence
             566      owned by the ward, send a report with a full accounting to the court on an annual basis. For
             567      estates less than $50,000, excluding the residence owned by the ward, the guardian shall fill out
             568      an informal annual report and mail the report to the court. The report shall include the
             569      following: a statement of assets at the beginning and end of the reporting year, income received
             570      during the year, disbursements for the support of the ward, and other expenses incurred by the
             571      estate. The guardian shall also report the physical conditions of the ward, the place of
             572      residence, and a list of others living in the same household. The court may require additional
             573      information. The forms for both the informal report for estates under $50,000, excluding the
             574      residence owned by the ward, and the full accounting report for larger estates shall be approved
             575      by the Judicial Council. This annual report shall be examined and approved by the court. If
             576      the ward's income is limited to a federal or state program requiring an annual accounting
             577      report, a copy of that report may be submitted to the court in lieu of the required annual report.
             578          (iii) Corporate fiduciaries are not required to petition the court, but shall submit their
             579      internal report annually to the court. The report shall be examined and approved by the court.
             580          (iv) The guardian shall also render an annual accounting of the status of the person to
             581      the court which shall be included in the petition or the informal annual report as required under
             582      Subsection (2)(e). If a fee is paid for an accounting of an estate, no fee shall be charged for an
             583      accounting of the status of a person.

             584          (v) If a guardian:
             585          (A) makes a substantial misstatement on filings of annual reports;
             586          (B) is guilty of gross impropriety in handling the property of the ward; or
             587          (C) willfully fails to file the report required by this subsection, after receiving written
             588      notice from the court of the failure to file and after a grace period of two months has elapsed,
             589      the court may impose a penalty in an amount not to exceed $5,000. The court may also order
             590      restitution of funds misappropriated from the estate of a ward. The penalty shall be paid by the
             591      guardian and may not be paid by the estate.
             592          (f) Within 90 days after appointment, the guardian shall file and serve a management
             593      plan as required by court rule or court order, describing the strategies that will be used to
             594      implement the court order.
             595          [(vi)] (g) These provisions and penalties governing [annual] reports and plans do not
             596      apply if the guardian is the parent of the ward with developmental disabilities.
             597          [(f)] (h) If a conservator has been appointed, all of the ward's estate received by the
             598      guardian in excess of those funds expended to meet current expenses for support, care, and
             599      education of the ward must be paid to the conservator for management as provided in this code;
             600      and the guardian must account to the conservator for funds expended.
             601          (3) Any guardian of one for whom a conservator also has been appointed shall control
             602      the custody and care of the ward and is entitled to receive reasonable sums for services and for
             603      room and board furnished to the ward as agreed upon between the guardian and the
             604      conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian
             605      may request the conservator to expend the ward's estate by payment to third persons or
             606      institutions for the ward's care and maintenance.
             607          Section 9. Effective date.
             608          This bill takes effect January 1, 2013.

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