Representative Mike Winder proposes the following substitute bill:


1     
INCAPACITATED PERSON REVISIONS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mike Winder

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to guardianship of an incapacitated person.
10     Highlighted Provisions:
11          This bill:
12          ▸     extends the repeal date related to appointment of counsel in a guardianship
13     proceeding;
14          ▸     addresses notices in guardianship proceedings;
15          ▸     addresses appointment of counsel as part of the procedure for court appointment of
16     a guardian;
17          ▸     addresses priorities in appointment of a guardian; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          63I-2-275, as enacted by Laws of Utah 2016, Chapter 400

26          75-5-303, as last amended by Laws of Utah 2016, Chapter 400
27          75-5-309, as last amended by Laws of Utah 2017, Chapter 403
28          75-5-311, as last amended by Laws of Utah 2013, Chapter 364
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 63I-2-275 is amended to read:
32          63I-2-275. Repeal dates -- Title 75.
33          Subsection 75-5-303(5)(d) is repealed on July 1, [2018] 2028.
34          Section 2. Section 75-5-303 is amended to read:
35          75-5-303. Procedure for court appointment of a guardian of an incapacitated
36     person.
37          (1) [The] An incapacitated person or any person interested in the incapacitated person's
38     welfare may petition for a finding of incapacity and appointment of a guardian.
39          (2) (a) Upon the filing of a petition, the court shall set a date for hearing on the issues
40     of incapacity.
41          (b) Unless the allegedly incapacitated person has counsel of the person's own choice,
42     the court shall appoint an attorney to represent the person in the proceeding the cost of which
43     shall be paid by the person alleged to be incapacitated, unless the allegedly incapacitated
44     person is indigent.
45          (c) If the court determines that the petition is without merit, the attorney fees and court
46     costs shall be paid by the person filing the petition.
47          (d) If the court appoints the petitioner or the petitioner's nominee as guardian of the
48     incapacitated person, regardless of whether the nominee is specified in the moving petition or
49     nominated during the proceedings, the petitioner shall be entitled to receive from the
50     incapacitated person reasonable attorney fees and court costs incurred in bringing, prosecuting,
51     or defending the petition.
52          (3) The legal representation of the incapacitated person by an attorney shall terminate
53     upon the appointment of a guardian, unless:
54          (a) there are separate conservatorship proceedings still pending before the court
55     subsequent to the appointment of a guardian;
56          (b) there is a timely filed appeal of the appointment of the guardian or the

57     determination of incapacity; or
58          (c) upon an express finding of good cause, the court orders otherwise.
59          (4) The person alleged to be incapacitated may be examined by a physician appointed
60     by the court who shall submit a report in writing to the court and may be interviewed by a
61     visitor sent by the court. The visitor also may interview the person seeking appointment as
62     guardian, visit the present place of abode of the person alleged to be incapacitated and the place
63     it is proposed that the person will be detained or reside if the requested appointment is made,
64     conduct other investigations or observations as directed by the court, and submit a report in
65     writing to the court.
66          (5) (a) The person alleged to be incapacitated shall be present at the hearing in person
67     and see or hear all evidence bearing upon the person's condition. If the person seeking the
68     guardianship requests a waiver of presence of the person alleged to be incapacitated, the court
69     shall order an investigation by a court visitor, the costs of which shall be paid by the person
70     seeking the guardianship.
71          (b) The investigation by a court visitor is not required if there is clear and convincing
72     evidence from a physician that the person alleged to be incapacitated has:
73          (i) fourth stage Alzheimer's Disease;
74          (ii) extended comatosis; or
75          (iii) (A) an intellectual disability; and
76          (B) an intelligence quotient score under 25.
77          (c) The person alleged to be incapacitated is entitled to be represented by counsel, to
78     present evidence, to cross-examine witnesses, including the court-appointed physician and the
79     visitor, and to trial by jury. The issue may be determined at a closed hearing without a jury if
80     the person alleged to be incapacitated or the person's counsel so requests.
81          (d) Counsel for the person alleged to be incapacitated, as defined in Subsection
82     75-1-201(22), is not required if:
83          (i) the person is the biological or adopted child of the petitioner;
84          (ii) the value of the person's entire estate does not exceed $20,000 as established by an
85     affidavit of the petitioner in accordance with Section 75-3-1201;
86          (iii) the person appears in court with the petitioner;
87          (iv) the person is given the opportunity to communicate, to the extent possible, the

88     person's acceptance of the appointment of petitioner; [and]
89          (v) no attorney from the state court's list of attorneys who have volunteered to represent
90     respondents in guardianship proceedings is able to provide counsel to the person within 60
91     days of the date of the appointment described in Subsection (2);
92          [(v)] (vi) the court is satisfied that counsel is not necessary in order to protect the
93     interests of the person[.]; and
94          (vii) the court appoints a visitor under Subsection (4).
95          Section 3. Section 75-5-309 is amended to read:
96          75-5-309. Notices in guardianship proceedings.
97          (1) In a proceeding for the appointment or removal of a guardian of an incapacitated
98     person other than the appointment of an emergency guardian or temporary suspension of a
99     guardian, notice of hearing shall be given to each of the following:
100          (a) the ward or the person alleged to be incapacitated and spouse, parents, and adult
101     children of the ward or person;
102          (b) any person who is serving as guardian or conservator or who has care and custody
103     of the ward or person;
104          (c) in case no other person is notified under Subsection (1)(a), at least one of the
105     closest adult relatives, if any can be found; [and]
106          (d) any guardian appointed by the will of the parent who died later or spouse of the
107     incapacitated person[.]; and
108          (e) Adult Protective Services if Adult Protective Services has received a referral under
109     Title 62A, Chapter 3, Part 3, Abuse, Neglect, or Exploitation of a Vulnerable Adult, concerning
110     the welfare of the ward or person alleged to be incapacitated or concerning the guardian or
111     conservator or proposed guardian or conservator.
112          (2) The notice shall be in plain language and large type and the form shall have the
113     final approval of the Judicial Council. The notice shall indicate the time and place of the
114     hearing, the possible adverse consequences to the person receiving notice of rights, a list of
115     rights, including the person's own or a court appointed counsel, and a copy of the petition.
116          (3) Notice shall be served personally on the alleged incapacitated person and the
117     person's spouse and parents if they can be found within the state. Notice to the spouse and
118     parents, if they cannot be found within the state, and to all other persons except the alleged

119     incapacitated person shall be given as provided in Section 75-1-401. Waiver of notice by the
120     person alleged to be incapacitated is not effective unless the person attends the hearing or the
121     person's waiver of notice is confirmed in an interview with the visitor appointed pursuant to
122     Section 75-5-303.
123          (4) A court shall provide to the Social Security Administration a court order affecting
124     the estate of a ward or person alleged to be incapacitated if the ward or person alleged to be
125     incapacitated receives social security benefits.
126          Section 4. Section 75-5-311 is amended to read:
127          75-5-311. Who may be guardian -- Priorities.
128          (1) As used in this section:
129          (a) "Specialized care professional" means a person who is certified as a National
130     Certified Guardian or National Master Guardian by the Center for Guardianship Certification
131     or similar organization.
132          (b) "Suitable institution" means any nonprofit or for profit corporation, partnership,
133     sole proprietorship, or other type of business organization that is owned, operated by, or
134     employs a specialized care professional.
135          (2) The court shall appoint a guardian in accordance with the incapacitated person's
136     most recent nomination, unless that person is disqualified or the court finds other good cause
137     why the person should not serve as guardian. That nomination shall have been made prior to
138     the person's incapacity, shall be in writing and shall be signed by the person making the
139     nomination. The nomination shall be in substantially the following form:
140     
Nomination of Guardian by an Adult

141          I, (Name), being of sound mind and not acting under duress, fraud, or other undue
142     influence, do hereby nominate (Name, current residence, and relationship, if any, of the
143     nominee) to serve as my guardian in the event that after the date of this instrument I become
144     incapacitated.
145                    Executed at ____________________________ (city, state)
146                    on this ____________ day of ______________
147                              ____________________________________
148                                        (Signature)
149          (3) Except as provided in Subsection (2), persons who are not disqualified have

150     priority for appointment as guardian in the following order:
151          (a) a person who has been nominated by the incapacitated person, by any means other
152     than that described in Subsection (2), if the incapacitated person was 14 years of age or older
153     when the nomination was executed and, in the opinion of the court, that person acted with
154     sufficient mental capacity to make the nomination;
155          (b) the spouse of the incapacitated person;
156          (c) an adult child of the incapacitated person;
157          (d) a parent of the incapacitated person, including a person nominated by will, written
158     instrument, or other writing signed by a deceased parent;
159          (e) any relative of the incapacitated person with whom he has resided for more than six
160     months prior to the filing of the petition;
161          (f) a person nominated by the person who is caring for him or paying benefits to him;
162          (g) a specialized care professional, so long as the specialized care professional does
163     not:
164          (i) profit financially or otherwise from or receive compensation for acting in that
165     capacity, except for the direct costs of providing guardianship or conservatorship services; or
166          (ii) otherwise have a conflict of interest in providing those services; [or]
167          (h) any competent person or suitable institution[.]; or
168          (i) the Office of Public Guardian under Title 62A, Chapter 14, Office of Public
169     Guardian Act.