7 Brian M. Greene
V. Lowry Snow
9 LONG TITLE
10 General Description:
11 This bill provides that, under certain circumstances, counsel is not required for a
12 disabled adult when the petitioner for guardianship is the disabled adult's parent.
13 Highlighted Provisions:
14 This bill:
15 ▸ provides that counsel is not required for the prospective ward under certain
16 circumstances; and
17 ▸ allows the provision to sunset.
18 Money Appropriated in this Bill:
20 Other Special Clauses:
22 Utah Code Sections Affected:
24 75-5-303, as last amended by Laws of Utah 2013, Chapter 364
26 63I-2-275, Utah Code Annotated 1953
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 63I-2-275 is enacted to read:
30 63I-2-275. Repeal dates -- Title 75.
31 Subsection 75-5-303(5)(d) is repealed on July 1, 2018.
32 Section 2. Section 75-5-303 is amended to read:
33 75-5-303. Procedure for court appointment of a guardian of an incapacitated
35 (1) The incapacitated person or any person interested in the incapacitated person's
36 welfare may petition for a finding of incapacity and appointment of a guardian.
37 (2) Upon the filing of a petition, the court shall set a date for hearing on the issues of
38 incapacity. Unless the allegedly incapacitated person has counsel of the person's own choice,
39 the court shall appoint an attorney to represent the person in the proceeding the cost of which
40 shall be paid by the person alleged to be incapacitated. If the court determines that the petition
41 is without merit, the attorney fees and court costs shall be paid by the person filing the petition.
42 If the court appoints the petitioner or the petitioner's nominee as guardian of the incapacitated
43 person, regardless of whether the nominee is specified in the moving petition or nominated
44 during the proceedings, the petitioner shall be entitled to receive from the incapacitated person
45 reasonable attorney fees and court costs incurred in bringing, prosecuting, or defending the
47 (3) The legal representation of the incapacitated person by an attorney shall terminate
48 upon the appointment of a guardian, unless:
49 (a) there are separate conservatorship proceedings still pending before the court
50 subsequent to the appointment of a guardian;
51 (b) there is a timely filed appeal of the appointment of the guardian or the
52 determination of incapacity; or
53 (c) upon an express finding of good cause, the court orders otherwise.
54 (4) The person alleged to be incapacitated may be examined by a physician appointed
55 by the court who shall submit a report in writing to the court and may be interviewed by a
56 visitor sent by the court. The visitor also may interview the person seeking appointment as
57 guardian, visit the present place of abode of the person alleged to be incapacitated and the place
58 it is proposed that the person will be detained or reside if the requested appointment is made,
59 conduct other investigations or observations as directed by the court, and submit a report in
60 writing to the court.
61 (5) (a) The person alleged to be incapacitated shall be present at the hearing in person
62 and see or hear all evidence bearing upon the person's condition. If the person seeking the
63 guardianship requests a waiver of presence of the person alleged to be incapacitated, the court
64 shall order an investigation by a court visitor, the costs of which shall be paid by the person
65 seeking the guardianship.
66 (b) The investigation by a court visitor is not required if there is clear and convincing
67 evidence from a physician that the person alleged to be incapacitated has:
68 (i) fourth stage Alzheimer's Disease;
69 (ii) extended comatosis; or
70 (iii) (A) an intellectual disability; and
71 (B) an intelligence quotient score under [
72 (c) The person alleged to be incapacitated is entitled to be represented by counsel, to
73 present evidence, to cross-examine witnesses, including the court-appointed physician and the
74 visitor, and to trial by jury. The issue may be determined at a closed hearing without a jury if
75 the person alleged to be incapacitated or the person's counsel so requests.
76 (d) Counsel for the person alleged to be incapacitated, as defined in Subsection
77 75-1-201(22), is not required if:
78 (i) the person is the biological or adopted child of the petitioner;
79 (ii) the value of the person's entire estate does not exceed $20,000 as established by an
80 affidavit of the petitioner in accordance with Section 75-3-1201;
81 (iii) the person appears in court with the petitioner;
82 (iv) the person is given the opportunity to communicate, to the extent possible, the
83 person's acceptance of the appointment of petitioner; and
84 (v) the court is satisfied that counsel is not necessary in order to protect the interests of
85 the person.