1     
GUARDIANSHIP, CONSERVATORSHIP, AND OTHER

2     
PROTECTIVE ORDER AMENDMENTS

3     
2020 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Lyle W. Hillyard

6     
House Sponsor: ____________

7     

8     LONG TITLE
9     General Description:
10          This bill amends provisions related to guardianships, conservatorships, and other
11     protective orders.
12     Highlighted Provisions:
13          This bill:
14          ▸     creates definitions;
15          ▸     provides notice requirements for guardianship proceedings, conservatorship
16     proceedings, and other protective proceedings under Title 75, Chapter 5, Protection
17     of Persons Under Disability and Their Property;
18          ▸     requires the disclosure of certain financial and criminal history for a guardian or
19     conservator;
20          ▸     provides requirements for the compensation or reimbursement of a conservator or
21     guardian;
22          ▸     amends the persons who can examine an individual for whom a guardianship or
23     conservatorship is sought;
24          ▸     repeals language regarding the types of individuals that a court visitor may
25     investigate;
26          ▸     provides notice requirements for guardianship and conservatorship proceedings for
27     adults and minors, including the contents of the notice and the persons that shall
28     receive the notice;
29          ▸     allows the court to modify the powers of a guardian to meet the specific needs of a
30     person subject to the guardianship;
31          ▸     provides the persons that can be appointed a guardian or conservator for certain
32     persons and the order of priority for an appointment of a guardian and conservator;
33          ▸     amends requirements that allow the mailing of conservatorship reports to the court
34     and require the reports be filed with the court;
35          ▸     repeals certain notice requirements for guardianship and conservatorship
36     proceedings; and
37          ▸     makes technical and conforming changes.
38     Money Appropriated in this Bill:
39          None
40     Other Special Clauses:
41          None
42     Utah Code Sections Affected:
43     AMENDS:
44          63I-2-275, as last amended by Laws of Utah 2018, Chapter 455
45          75-5-207, as last amended by Laws of Utah 1995, Chapter 156
46          75-5-208, as last amended by Laws of Utah 1985, Chapter 41
47          75-5-303, as last amended by Laws of Utah 2018, Chapter 455
48          75-5-304, as last amended by Laws of Utah 2017, Chapter 403
49          75-5-305, as last amended by Laws of Utah 1977, Chapter 194
50          75-5-310.5, as enacted by Laws of Utah 2014, Chapter 142
51          75-5-312, as last amended by Laws of Utah 2018, Chapters 244 and 294
52          75-5-316, as last amended by Laws of Utah 2011, Chapter 366
53          75-5-402, as last amended by Laws of Utah 1992, Chapter 30
54          75-5-406, as enacted by Laws of Utah 1975, Chapter 150
55          75-5-407, as last amended by Laws of Utah 2013, Chapter 364
56          75-5-412, as enacted by Laws of Utah 1975, Chapter 150
57          75-5-413, as enacted by Laws of Utah 1975, Chapter 150
58          75-5-417, as last amended by Laws of Utah 2004, Chapter 89
59          75-5-428, as last amended by Laws of Utah 2007, Chapter 306
60     ENACTS:
61          75-5-101.5, Utah Code Annotated 1953
62          75-5-106, Utah Code Annotated 1953
63          75-5-107, Utah Code Annotated 1953
64          75-5-108, Utah Code Annotated 1953
65          75-5-207.5, Utah Code Annotated 1953
66          75-5-303.5, Utah Code Annotated 1953
67          75-5-311.5, Utah Code Annotated 1953
68          75-5-405.5, Utah Code Annotated 1953
69          75-5-410.5, Utah Code Annotated 1953
70     REPEALS:
71          75-5-308, as enacted by Laws of Utah 1975, Chapter 150
72          75-5-309, as last amended by Laws of Utah 2018, Chapter 455
73          75-5-311, as last amended by Laws of Utah 2018, Chapter 455
74          75-5-405, as enacted by Laws of Utah 1975, Chapter 150
75          75-5-410, as last amended by Laws of Utah 2010, Chapter 324
76     

77     Be it enacted by the Legislature of the state of Utah:
78          Section 1. Section 63I-2-275 is amended to read:
79          63I-2-275. Repeal dates -- Title 75.
80          Subsection 75-5-303[(5)(d)](6)(e), regarding when counsel is not required for a person
81     who is alleged to be incapacitated, is repealed on July 1, 2028.
82          Section 2. Section 75-5-101.5 is enacted to read:
83          75-5-101.5. Definitions.
84          As used in this chapter:
85          (1) "Protected person" means a person for whom a conservator or other protective
86     order is sought or appointed.
87          (2) "Visitor" means an individual who:
88          (a) is appointed by the court in accordance with this chapter;
89          (b) has no personal interest in the guardianship or conservatorship proceeding; and
90          (c) has training or experience in guardianship and conservatorship arrangements.
91          Section 3. Section 75-5-106 is enacted to read:
92          75-5-106. Notice of a hearing.
93          (1) Except as provided in Sections 75-5-207.5, 75-5-303.5, and 75-5-405.5, if a notice
94     of a hearing under this chapter is required, the movant shall give notice of the date, time, and
95     place of the hearing to the person to be notified unless otherwise ordered by the court for good
96     cause.
97          (2) Except as otherwise provided in this chapter, notice shall be given, in compliance
98     with the Utah Rules of Civil Procedure, at least 14 days before the hearing.
99          (3) Proof of notice of a hearing under this chapter shall be made before or at the
100     hearing and filed in the proceeding.
101          (4) Notice of a hearing under this chapter shall be in at least 16-point font, in plain
102     language, and to the extent feasible, in a language in which the person to be notified is
103     proficient.
104          Section 4. Section 75-5-107 is enacted to read:
105          75-5-107. Disclosure of bankruptcy or criminal history.
106          (1) Before accepting appointment as a guardian or conservator, a person shall disclose
107     to the court whether the person:
108          (a) is or has been a debtor in a bankruptcy, insolvency, or receivership proceeding; or
109          (b) been convicted of:
110          (i) a felony;
111          (ii) a crime involving dishonesty, neglect, violence, or use of physical force; or
112          (iii) a crime relevant to the functions that the person would assume as guardian or
113     conservator.
114          (2) A guardian or conservator shall promptly disclose to the court whether the guardian
115     or conservator engages or anticipates in engaging an agent that the guardian or conservator
116     knows has been convicted of:
117          (a) a felony;
118          (b) a crime involving dishonesty, neglect, violence, or use of physical force; or
119          (c) a crime relevant to the functions that the agent is being engaged to perform.
120          (3) If a conservator engages or anticipates engaging an agent to manage finances of the
121     person subject to a conservatorship and knows the agent is or has been a debtor in a
122     bankruptcy, insolvency, or receivership proceeding, the conservator shall disclose that
123     knowledge to the court.
124          Section 5. Section 75-5-108 is enacted to read:
125          75-5-108. Compensation of guardian or conservator.
126          (1) Subject to court approval, a guardian is entitled to:
127          (a) reasonable compensation for services as a guardian; and
128          (b) reimbursement for room, board, clothing, and other appropriate expenses advanced
129     for the benefit of the person subject to the guardianship.
130          (2) If a conservator, other than the guardian or a person affiliated with the guardian, is
131     appointed for a protected person, reasonable compensation and reimbursement to the guardian
132     may be approved and paid by the conservator without court approval.
133          (3) Subject to court approval, a conservator is entitled to:
134          (a) reasonable compensation for services; and
135          (b) reimbursement for appropriate expenses from the property of the protected person.
136          (4) In determining reasonable compensation for a guardian or conservator, the court, or
137     a conservator, shall consider:
138          (a) the necessity and quality of the services provided;
139          (b) the experience, training, professional standing, and skills of the guardian or
140     conservator;
141          (c) the difficulty of the services performed, including the degree of skill and care
142     required;
143          (d) the conditions and circumstances under which a service was performed, including
144     whether the service was provided outside regular business hours or under dangerous or
145     extraordinary conditions;
146          (e) the effect of the services on the person subject to the guardianship or
147     conservatorship;
148          (f) the extent to which the services provided were or were not consistent with an
149     individualized plan created by a guardian or conservator; and
150          (g) the fees customarily paid to a person that performs a like service in the community.
151          (5) A guardian or conservator need not use personal funds of the guardian or
152     conservator for the expenses of the person subject to the guardianship or conservatorship.
153          (6) If a person subject to a guardianship or conservatorship seeks to modify or
154     terminate the guardianship or conservatorship or remove the guardian or conservator, the court
155     may order compensation to the guardian or conservator for time spent opposing modification,
156     termination, or removal only to the extent the court determines the opposition was reasonably
157     necessary to protect the interest of the person subject to the guardianship or conservatorship.
158          Section 6. Section 75-5-207 is amended to read:
159          75-5-207. Court appointment of guardian of minor -- Procedure.
160          [(1) Notice of the time and place of hearing of a petition for the appointment of a
161     guardian of a minor is to be given by the petitioner in the manner prescribed by Section
162     75-1-401 to:]
163          [(a) the minor, if the minor is 14 years of age or older;]
164          [(b) the person who has had the principal care and custody of the minor during the 60
165     days preceding the date of the petition;]
166          [(c) any living parent of the minor;]
167          [(d) any guardian appointed by the will or written instrument of the parent of the minor
168     who died last; and]
169          [(e) the school district in which the petitioner resides and a representative of the school
170     district may participate in the hearing.]
171          [(2) (a) Upon hearing, if the court finds that a qualified person seeks appointment,
172     venue is proper, the required notices have been given, the requirements of Sections 75-5-204
173     and 75-5-206 have been met, and the welfare and best interests of the minor will be served by
174     the requested appointment, it may make the appointment.]
175          (1) A petitioner shall give notice of the time and place of a hearing on a petition for the
176     appointment of a guardian of a minor in accordance with Sections 75-5-106 and 75-5-207.5.
177          (2) (a) After a hearing, the court may appoint a guardian of a minor if:
178          (i) a qualified person seeks appointment;
179          (ii) venue is proper;
180          (iii) notice has been given in accordance with Sections 75-5-106 and 75-5-207.5;
181          (iv) the requirements of Sections 75-5-204 and 75-5-206 have been met; and
182          (v) the welfare and best interest of the minor will be served by the requested
183     appointment.
184          (b) In other cases, the court may dismiss the proceedings or make any other disposition
185     of the matter that will best serve the interest of the minor.
186          (3) (a) If necessary, the court may appoint a temporary guardian[,] with the status of an
187     ordinary guardian of a minor.
188          (b) The authority of a temporary guardian may not last longer than six months.
189          (4) If, at any time in the proceeding, the court determines that the [interests] interest of
190     the minor are or may be inadequately represented, [it] the court may appoint an attorney to
191     represent the minor, giving consideration to the preference of the minor if the minor is 14 years
192     [of age] old or older.
193          Section 7. Section 75-5-207.5 is enacted to read:
194          75-5-207.5. Notice of a hearing for appointment of a guardian for a minor.
195          (1) Upon the filing of a petition for an appointment of a guardian for a minor under this
196     part:
197          (a) the court shall schedule a hearing; and
198          (b) the petitioner shall:
199          (i) serve notice in accordance with Section 75-5-106, together with a copy of the
200     petition, personally served on each of the following that is not the petitioner:
201          (A) the minor if the minor will be 12 years old or older at the time of the hearing;
202          (B) each parent of the minor, or if there is none, the adult nearest in kinship who can be
203     found with reasonable diligence;
204          (C) any adult with whom the minor resides;
205          (D) each person that had primary care or custody of the minor for at least 60 days
206     during the two years immediately before the filing of the petition or for at least 730 days during
207     the five years immediately before the filing of the petition; and
208          (E) any other person the court determines should receive personal service of notice;
209     and
210          (ii) give notice in accordance with Section 75-5-106, together with a copy of the
211     petition, to:
212          (A) any person nominated as guardian by the minor if the minor is 12 years old or
213     older;
214          (B) any person nominated as guardian by a parent of the minor;
215          (C) each grandparent and adult sibling of the minor;
216          (D) any guardian or conservator acting for the minor in any jurisdiction; and
217          (E) any other person the court determines.
218          (2) Notice under Subsection (1) shall include:
219          (a) a statement of the right to request appointment of an attorney and to object to
220     appointment of a guardian; and
221          (b) a description of the nature, purpose, and consequences of appointment of a
222     guardian.
223          (3) The court may not grant a petition for guardianship of a minor if notice
224     substantially complying with Subsection (1)(b) is not served on:
225          (a) the minor if the minor is 12 years old or older; and
226          (b) each parent of the minor, unless the court finds by clear and convincing evidence
227     that the parent cannot with due diligence be located and served or the parent waived, in a
228     record, the right to notice.
229          (4) If a petitioner is unable to serve notice under Subsection (1)(b) on a parent of a
230     minor or alleges that the parent waived, in a record, the right to notice under this section, the
231     court may appoint a visitor to:
232          (a) interview the petitioner and the minor;
233          (b) if the petitioner alleges the parent cannot be located, ascertain whether the parent
234     cannot be located with due diligence; and
235          (c) investigate any other matter relating to the petition the court directs.
236          Section 8. Section 75-5-208 is amended to read:
237          75-5-208. Consent to service by acceptance of appointment -- Notice.
238          (1) By accepting a testamentary, instrumental, or court appointment as guardian, a
239     guardian submits personally to the jurisdiction of the court in any proceeding relating to the
240     guardianship that may be instituted by any interested person or any person interested in the
241     welfare of the minor.
242          (2) Notice of any proceeding under this part shall be [delivered to the guardian or
243     mailed to him by ordinary mail at his address as listed in the court records and to his address as
244     then known to the petitioner.] given in accordance with Sections 75-5-106 and 75-5-207.5.
245          (3) Letters of guardianship shall indicate whether the guardian was appointed by will,
246     written instrument, or by court order.
247          Section 9. Section 75-5-303 is amended to read:
248          75-5-303. Procedure for court appointment of a guardian of an incapacitated
249     person.
250          (1) [An incapacitated person] A person alleged to be incapacitated or any person
251     interested in the [incapacitated] person's welfare may petition for a finding of incapacity and
252     appointment of a guardian.
253          (2) (a) Upon the filing of a petition, the court shall set a date for hearing on the issues
254     of incapacity.
255          [(b) Unless the allegedly incapacitated person has counsel of the person's own choice,
256     the court shall appoint an attorney to represent the person in the proceeding the cost of which
257     shall be paid by the person alleged to be incapacitated, unless the allegedly incapacitated
258     person and the allegedly incapacitated person's parents are indigent.]
259          (b) (i) Except as provided in Subsection (6)(d), if the person alleged to be incapacitated
260     in a proceeding for an appointment of a guardian is not represented by an attorney, the court
261     shall appoint an attorney to represent the person.
262          (ii) The cost of the allegedly incapacitated person's attorney under Subsection (2)(b)(i)
263     shall be paid by the person alleged to be incapacitated, unless the person and the person's
264     parents are indigent.
265          (c) If the court determines that the petition is without merit, the attorney fees and court
266     costs shall be paid by the person filing the petition.
267          (d) If the court appoints the petitioner or the petitioner's nominee as guardian of the
268     incapacitated person, regardless of whether the nominee is specified in the moving petition or
269     nominated during the proceedings, the petitioner [shall be] is entitled to receive from the
270     incapacitated person reasonable attorney fees and court costs incurred in bringing, prosecuting,
271     or defending the petition.
272          (3) The legal representation of the incapacitated person by an attorney shall terminate
273     upon the appointment of a guardian, unless:
274          (a) there [are separate conservatorship proceedings still] is a separate conservatorship
275     proceeding pending before the court subsequent to the appointment of a guardian;
276          (b) there is a timely filed appeal of the appointment of the guardian or the
277     determination of incapacity; or
278          (c) upon an express finding of good cause, the court orders otherwise.
279          [(4) The person alleged to be incapacitated may be examined by a physician appointed
280     by the court who shall submit a report in writing to the court and may be interviewed by a
281     visitor sent by the court. The visitor also may interview the person seeking appointment as
282     guardian, visit the present place of abode of the person alleged to be incapacitated and the place
283     it is proposed that the person will be detained or reside if the requested appointment is made,
284     conduct other investigations or observations as directed by the court, and submit a report in
285     writing to the court.]
286          (4) (a) A person who is alleged to be incapacitated may be examined by:
287          (i) a licensed physician;
288          (ii) a psychologist;
289          (iii) a social worker;
290          (iv) an individual who:
291          (A) is qualified to evaluate the incapacitated person's alleged cognitive and functional
292     abilities and limitations; and
293          (B) will not be advantaged or disadvantaged by a decision to grant the petition or
294     otherwise have a conflict of interest.
295          (b) An individual who provides an examination in Subsection (4)(a) shall promptly file
296     the report with the court.
297          (5) (a) A person who is alleged to be incapacitated may be interviewed by a visitor sent
298     by the court.
299          (b) A visitor may:
300          (i) interview an individual seeking to be appointed as a guardian;
301          (ii) (A) visit the present place of abode of the person alleged to be incapacitated; or
302          (B) visit the place that the person will be detained or reside if the requested
303     appointment is made;
304          (iii) conduct other investigations or observations as directed by the court; and
305          (iv) submit a report in writing to the court.
306          [(5)] (6) (a) [The] A person alleged to be incapacitated shall:
307          (i) be present at the hearing in person; and
308          (ii) see or hear all evidence bearing upon the person's condition.
309          (b) (i) If the person seeking the guardianship requests a waiver of presence of the
310     person alleged to be incapacitated, the court shall order an investigation by a [court] visitor[,
311     the costs of which].
312          (ii) The costs of a visitor under Subsection (5)(b)(i) shall be paid by the person seeking
313     the guardianship.
314          [(b) The] (c) An investigation by a [court] visitor under Subsection (5)(b) is not
315     required if there is clear and convincing evidence from a licensed physician that the person
316     alleged to be incapacitated has:
317          [(i) fourth stage Alzheimer's Disease;]
318          [(ii)] (i) extended comatosis; or
319          [(iii)] (ii) (A) an intellectual disability; and
320          (B) an intelligence quotient score under 25.
321          [(c) The person]
322          (d) (i) A person alleged to be incapacitated is entitled to:
323          (A) be represented by counsel[, to];
324          (B) present evidence[, to];
325          (C) cross-examine witnesses, including the court-appointed physician and the visitor[,
326     and to]; and
327          (D) a trial by jury.
328          (ii) The issue may be determined at a closed hearing without a jury if the person
329     alleged to be incapacitated or the person's counsel so requests.
330          [(d)] (e) Counsel for the person alleged to be incapacitated[, as defined in Subsection
331     75-1-201(22),] is not required if:
332          (i) the person is the biological or adopted child of the petitioner;
333          (ii) the value of the person's entire estate does not exceed $20,000 as established by an
334     affidavit of the petitioner in accordance with Section 75-3-1201;
335          (iii) the person appears in court with the petitioner;
336          (iv) the person is given the opportunity to communicate, to the extent possible, the
337     person's acceptance of the appointment of petitioner;
338          (v) no attorney from the state court's list of attorneys who have volunteered to represent
339     respondents in guardianship proceedings is able to provide counsel to the person within 60
340     days [of the date of the appointment described in Subsection (2)] from the day on which
341     counsel is appointed under Subsection (2)(b);
342          (vi) the court is satisfied that counsel is not necessary in order to protect the interests of
343     the person; and
344          (vii) the court appoints a visitor under Subsection [(4)] (5).
345          Section 10. Section 75-5-303.5 is enacted to read:
346          75-5-303.5. Notice of a hearing for appointment of a guardian for an allegedly
347     incapacitated person.
348          (1) Upon the filing of a petition for an appointment of a guardian for a person alleged
349     to be incapacitated under Section 75-5-303, the court shall schedule a hearing on the petition.
350          (2) (a) A copy of a petition under Section 75-5-303 and notice of a hearing on the
351     petition in accordance with Section 75-5-106 shall be served personally on the person for
352     whom the guardianship is sought.
353          (b) The notice shall:
354          (i) inform the person alleged to be incapacitated of the person's rights at the hearing,
355     including the right to an attorney and to attend the hearing; and
356          (ii) include a description of the nature, purpose, and consequences of granting the
357     petition.
358          (c) The court may not grant the petition if notice substantially complying with this
359     Subsection (2) is not served on the person alleged to be incapacitated.
360          (3) In a proceeding on a petition under Section 75-5-303, the notice required under
361     Subsection (2)(b) shall be given to:
362          (a) the person alleged to be incapacitated;
363          (b) (i) the allegedly incapacitated person's spouse; or
364          (ii) if the allegedly incapacitated person has no spouse, any adult with whom the
365     allegedly incapacitated person shared household responsibilities for more than six months in
366     the 12-month period immediately before the filing of the petition;
367          (c) (i) the allegedly incapacitated person's adult children;
368          (ii) if the allegedly incapacitated person has no adult children, each parent and adult
369     sibling of the allegedly incapacitated person; or
370          (iii) if the allegedly incapacitated person has no adult children and no living parent or
371     adult sibling, at least one adult nearest in kinship to the allegedly incapacitated person who can
372     be found with reasonable diligence;
373          (d) any adult stepchildren whom the allegedly incapacitated person actively parented
374     during the stepchildren's minor years and with whom the allegedly incapacitated person had an
375     ongoing relationship in the two-year period immediately before the filing of the petition;
376          (e) if applicable:
377          (i) a person responsible for the care of the allegedly incapacitated person;
378          (ii) any attorney currently representing the allegedly incapacitated person;
379          (iii) any representative payee appointed by the Social Security Administration for the
380     allegedly incapacitated person;
381          (iv) a guardian or conservator acting for the allegedly incapacitated person in this state
382     or in another jurisdiction;
383          (v) a trustee or custodian of a trust or custodianship of which the allegedly
384     incapacitated person is a beneficiary;
385          (vi) any fiduciary for the allegedly incapacitated person appointed by the United States
386     Department of Veterans Affairs;
387          (vii) an agent designated under a power of attorney for health care in which the
388     allegedly incapacitated person is identified as the principal;
389          (viii) an agent designated under a power of attorney for finances in which the allegedly
390     incapacitated person is identified as the principal;
391          (ix) a person nominated as guardian by the allegedly incapacitated person;
392          (x) a person nominated as guardian by the allegedly incapacitated person's parent or
393     spouse in a will or other signed record;
394          (xii) a proposed guardian; and
395          (xiii) a person known by the petitioner to have routinely assisted the allegedly
396     incapacitated person with decision making during the six months immediately before the filing
397     of the petition; and
398          (f) any other person interested in the respondent's welfare the court determines.
399          (4) Failure to give notice under Subsection (2) does not preclude the court from
400     appointing a guardian.
401          (5) After the appointment of a guardian, notice of a hearing on any other petition for an
402     order under this part, together with a copy of the petition or order, shall be given to:
403          (a) the incapacitated person subject to the guardianship;
404          (b) the guardian; and
405          (c) any other person the court determines.
406          Section 11. Section 75-5-304 is amended to read:
407          75-5-304. Findings -- Limited guardianship preferred -- Order of appointment.
408          (1) [The] A court may appoint a guardian as requested if [it] the court is satisfied that
409     the person for whom a guardian is sought is incapacitated and that the appointment is necessary
410     or desirable as a means of providing continuing care and supervision of the incapacitated
411     person.
412          (2) (a) (i) The court shall prefer a limited guardianship and may only grant a full
413     guardianship if no other alternative exists.
414          (ii) If the court does not grant a limited guardianship, a specific finding shall be made
415     that nothing less than a full guardianship is adequate.
416          (b) (i) An order of appointment of a limited guardianship shall state the limitations of
417     the guardianship.
418          (ii) Letters of guardianship for a limited guardianship shall state the limitations of the
419     guardianship unless the court determines for good cause shown that a limitation should not be
420     listed in the letters.
421          (c) The court may modify the powers of the guardian to the specific needs of the
422     incapacitated person subject to the guardianship upon clear and convincing evidence that
423     modification is necessary to address the needs of the incapacitated person.
424          (3) (a) A guardian appointed by will or written instrument, under Section 75-5-301,
425     whose appointment has not been prevented or nullified under Subsection 75-5-301(4), has
426     priority over any guardian who may be appointed by the court[, but the].
427          (b) The court may:
428          (i) proceed with an appointment upon a finding that the testamentary or instrumental
429     guardian has failed to accept the appointment within 30 days after the testamentary or
430     instrumental guardian received notice of the guardianship proceeding[. Alternatively, the court
431     may]; or
432          (ii) dismiss the proceeding or enter any other appropriate order.
433          Section 12. Section 75-5-305 is amended to read:
434          75-5-305. Acceptance of appointment -- Consent to jurisdiction.
435          (1) (a) By accepting appointment, a guardian submits personally to the jurisdiction of
436     the court in any proceeding relating to the guardianship [that].
437          (b) A guardianship proceeding may be instituted by any interested person or any person
438     interested in the welfare of the [ward] person for whom the guardianship is sought.
439          (2) Notice of any proceeding shall be [delivered to the guardian or mailed to him by
440     ordinary mail at his address as listed in the court records and to his address as then known to
441     the petitioner] given to the guardian in accordance with Section 75-5-106 and Section
442     75-5-303.5.
443          Section 13. Section 75-5-310.5 is amended to read:
444          75-5-310.5. Temporary guardians.
445          [(1) If, after notice and hearing as required by Section 75-5-303,]
446          (1) (a) If a person files a petition for the appointment of a temporary guardian for a
447     person alleged to be incapacitated, the person shall give notice in accordance with Sections
448     75-5-106 and 75-5-303.5.
449          (b) If the court finds good cause, the court may:
450          [(a)] (i) appoint a temporary guardian;
451          [(b)] (ii) convert an emergency guardian to a temporary guardian if an emergency
452     guardian has been appointed under Section 75-5-310; or
453          [(c)] (iii) appoint a different person as temporary guardian to replace an emergency
454     guardian appointed under Section 75-5-310.
455          (2) Unless the allegedly incapacitated person has already obtained counsel in this
456     proceeding or an attorney has been already appointed for the person, the court shall appoint an
457     attorney to represent the person in the proceeding.
458          (3) (a) Until a full hearing and further order of the court, the temporary guardian shall
459     be charged with the care and custody of the [ward] allegedly incapacitated person and may not
460     permit the [ward] allegedly incapacitated person to be removed from the state.
461          (b) The authority of any permanent guardian previously appointed by the court is
462     suspended so long as a temporary guardian has authority.
463          (4) A temporary guardian:
464          (a) may be removed at any time[,]; and
465          (b) shall obey all orders and make any reports required by the court.
466          (5) A temporary guardian has all of the powers and duties of a permanent guardian as
467     set forth in Section 75-5-312.
468          Section 14. Section 75-5-311.5 is enacted to read:
469          75-5-311.5. Who may be a guardian for an incapacitated person -- Order of
470     priority.
471          (1) Except as provided in Subsection (3), the court in appointing a guardian for a
472     person alleged to be incapacitated shall consider persons qualified to be guardian in the
473     following order of priority:
474          (a) a guardian, other than a temporary or emergency guardian, currently acting for the
475     incapacitated person in another jurisdiction;
476          (b) a person nominated as guardian by the incapacitated person, including the
477     incapacitated person's most recent nomination made in a power of attorney if:
478          (i) the incapacitated person was 14 years old or older when the nomination was
479     executed; and
480          (ii) the incapacitated person acted with sufficient mental capacity to make the
481     nomination;
482          (c) a person nominated as guardian by the incapacitated person, including the
483     incapacitated person's most recent nomination made in a power of attorney;
484          (d) an agent appointed by the incapacitated person under a power of attorney for health
485     care;
486          (e) a spouse of the incapacitated person;
487          (f) a family member or other individual who has shown special care and concern for
488     the incapacitated person; and
489          (g) the Office of Public Guardian created in Title 62A, Chapter 14, Office of Public
490     Guardian Act.
491          (2) (a) If two or more persons have equal priority under Subsection (1), the court shall
492     select as guardian the person the court considers best qualified.
493          (b) In determining the best qualified person, the court shall consider:
494          (i) the person's relationship with the incapacitated person;
495          (ii) the person's skills;
496          (iii) the expressed wishes of the incapacitated person;
497          (iv) the extent to which the person and the incapacitated person have similar values and
498     preferences; and
499          (v) the likelihood the person will be able to perform the duties of a guardian
500     successfully.
501          (3) The court, acting in the best interest of the incapacitated person, may decline to
502     appoint as guardian a person having priority under Subsection (1) and appoint a person having
503     a lower priority or no priority.
504          (4) A person that provides paid services to an incapacitated person, or an individual
505     who is employed by a person that provides paid services to the incapacitated person or is the
506     spouse, parent, or child of an individual who provides or is employed to provide paid services
507     to the incapacitated person, may not be appointed as guardian unless:
508          (a) the individual is related to the incapacitated person by blood, marriage, or adoption;
509     or
510          (b) the court finds by clear and convincing evidence that the person is the best qualified
511     person available for appointment and the appointment is in the best interest of the incapacitated
512     person.
513          (5) An owner, operator, or employee of a long-term care institution at which an
514     incapacitated person is receiving care may not be appointed as guardian for the incapacitated
515     person unless the owner, operator, or employee is related to the incapacitated person by blood,
516     marriage, or adoption.
517          Section 15. Section 75-5-312 is amended to read:
518          75-5-312. General powers and duties of guardian -- Penalties.
519          (1) A guardian of [an incapacitated person] a ward has only the powers, rights, and
520     duties respecting the ward granted in the order of appointment under Section 75-5-304.
521          (2) Except as provided in Subsection (4), a guardian has the same powers, rights, and
522     duties respecting the ward that a parent has respecting the parent's unemancipated minor child.
523          (3) In particular, and without qualifying Subsections (1) and (2), a guardian has the
524     following powers and duties, except as modified by order of the court:
525          (a) To the extent that it is consistent with the terms of any order by a court of
526     competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled
527     to custody of the person of the ward and may establish the ward's place of abode within or
528     without this state.
529          (b) If entitled to custody of the ward the guardian shall provide for the care, comfort,
530     and maintenance of the ward and, whenever appropriate, arrange for the ward's training and
531     education. Without regard to custodial rights of the ward's person, the guardian shall take
532     reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and
533     commence protective proceedings if other property of the ward is in need of protection.
534          (c) A guardian may give any consents or approvals that may be necessary to enable the
535     ward to receive medical or other professional care, counsel, treatment, or service.
536          (d) A guardian may not unreasonably restrict visitation with the ward by family,
537     relatives, or friends.
538          (e) If no conservator for the estate of the ward has been appointed, the guardian may:
539          (i) institute proceedings to compel any person under a duty to support the ward or to
540     pay sums for the welfare of the ward to perform that duty;
541          (ii) compel the production of the ward's estate documents, including the ward's will,
542     trust, power of attorney, and any advance health care directive; and
543          (iii) receive money and tangible property deliverable to the ward and apply the money
544     and property for support, care, and education of the ward:
545          (A) except that the guardian may not use funds from the ward's estate for room and
546     board that the guardian, the guardian's spouse, parent, or child have furnished the ward unless a
547     charge for the service is approved by order of the court made upon notice to at least one adult
548     relative in the nearest degree of kinship to the ward in which there is an adult; and
549          (B) the guardian shall exercise care to conserve any excess for the ward's needs.
550          (f) (i) A guardian is required to report the condition of the ward and of the estate that
551     has been subject to the guardian's possession or control, as required by the court or court rule.
552          (ii) A guardian is required to immediately notify all interested persons if the guardian
553     reasonably believes that the ward's death is likely to occur within the next 30 days, based on:
554          (A) the guardian's own observations; or
555          (B) information from the ward's physician or other medical care providers.
556          (iii) A guardian is required to immediately notify persons [who] that request
557     notification and are not restricted in associating with the ward [pursuant to] under Section
558     75-5-312.5 of:
559          (A) the ward's admission to a hospital for three or more days or to a hospice program;
560          (B) the ward's death; and
561          (C) the arrangements for the disposition of the ward's remains .
562          (iv) (A) Unless emergency conditions exist, a guardian is required to file with the court
563     a notice of the guardian's intent to move the ward and to serve [the notice on all interested
564     persons at least 10 days before the move.] notice to all interested persons in accordance with
565     Section 75-5-106.
566          (B) The guardian shall take reasonable steps to notify all interested persons and to file
567     the notice with the court as soon as practicable following the earlier of the move or the date
568     when the guardian's intention to move the ward is made known to the ward, the ward's care
569     giver, or any other third party.
570          (v) (A) If no conservator for the estate of the ward has been appointed, the guardian
571     shall, for all estates in excess of $50,000, excluding the residence owned by the ward, [send]
572     file a report with a full accounting to the court on an annual basis.
573          (B) For estates less than $50,000, excluding the residence owned by the ward, the
574     guardian shall fill out an informal annual report and [mail] file the report [to] with the court.
575          (C) A report under Subsection (3)(f)(v)(A) or (B) shall include a statement of assets at
576     the beginning and end of the reporting year, income received during the year, disbursements for
577     the support of the ward, and other expenses incurred by the estate. The guardian shall also
578     report the physical conditions of the ward, the place of residence, and a list of others living in
579     the same household. The court may require additional information.
580          (D) The forms for both the informal report for estates under $50,000, excluding the
581     residence owned by the ward, and the full accounting report for larger estates shall be approved
582     by the Judicial Council.
583          (E) An annual report shall be examined and approved by the court.
584          (F) If the ward's income is limited to a federal or state program requiring an annual
585     accounting report, a copy of that report may be submitted to the court in lieu of the required
586     annual report.
587          (vi) Corporate fiduciaries are not required to petition the court, but shall submit their
588     internal report annually to the court. The report shall be examined and approved by the court.
589          (vii) The guardian shall also render an annual accounting of the status of the person to
590     the court that shall be included in the petition or the informal annual report as required under
591     this Subsection (3)(f). If a fee is paid for an accounting of an estate, a fee may not be charged
592     for an accounting of the status of a person.
593          (viii) If a guardian:
594          (A) makes a substantial misstatement on filings of annual reports;
595          (B) is guilty of gross impropriety in handling the property of the ward; or
596          (C) willfully fails to file the report required by this Subsection (3)(f), after receiving
597     written notice from the court of the failure to file and after a grace period of two months has
598     elapsed, the court may impose a penalty in an amount not to exceed $5,000.
599          (ix) The court may also order restitution of funds misappropriated from the estate of a
600     ward. The penalty shall be paid by the guardian and may not be paid by the estate.
601          (x) The provisions and penalties in this Subsection (3)(f) governing annual reports do
602     not apply if the guardian or a coguardian is the parent of the ward.
603          (xi) For the purposes of Subsections (3)(f)[(i),] (ii), (iii), and (iv), "interested persons"
604     means [those persons] any person required to receive notice in guardianship proceedings as set
605     forth in Section [75-5-309] 75-5-303.5.
606          (g) If a conservator has been appointed:
607          (i) all of the ward's estate received by the guardian in excess of those funds expended
608     to meet current expenses for support, care, and education of the ward shall be paid to the
609     conservator for management as provided in this code; and
610          (ii) the guardian shall account to the conservator for funds expended.
611          (4) (a) A court may, in the order of appointment, place specific limitations on the
612     guardian's power.
613          (b) A guardian may not prohibit or place restrictions on association with a relative or
614     qualified acquaintance of an adult ward, unless permitted by court order under Section
615     75-5-312.5.
616          (c) A guardian is not liable to a third person for acts of the guardian's ward solely by
617     reason of the relationship described in Subsection (2).
618          (5) Any guardian of [one] a ward for whom a conservator also has been appointed shall
619     control the custody and care of the ward and is entitled to receive reasonable sums for services
620     and for room and board furnished to the ward as agreed upon between the guardian and the
621     conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian
622     may request the conservator to expend the ward's estate by payment to third persons or
623     institutions for the ward's care and maintenance.
624          (6) A person [who] that refuses to accept the authority of a guardian with authority
625     over financial decisions to transact business with the assets of the protected person after
626     receiving a certified copy of letters of guardianship is liable for costs, expenses, attorney fees,
627     and damages if the court determines that the person did not act in good faith in refusing to
628     accept the authority of the guardian.
629          (7) A guardian shall, to the extent practicable, encourage the ward to participate in
630     decisions, exercise self-determination, act on the ward's own behalf, and develop or regain the
631     capacity to manage the ward's personal affairs. To the extent known, a guardian, in making
632     decisions, shall consider the expressed desires and personal values of the ward.
633          Section 16. Section 75-5-316 is amended to read:
634          75-5-316. Expedited guardianship proceedings.
635          (1) (a) With regard to persons who are residents of the Utah State Developmental
636     Center, the expedited process provided by this section may be applied to obtain a limited
637     guardianship.
638          (b) [For purposes of this section] As used in this section:
639          (i) "Limited guardianship" means a guardianship solely for the purpose of granting
640     consent for medical care and for participation in approval of the ward's individualized program
641     plan.
642          (ii) "Ward" means a resident of the Utah State Developmental Center who is the
643     subject of guardianship proceedings under this section.
644          (2) (a) Any person interested in the [incapacitated person's welfare] the welfare of a
645     person alleged to be incapacitated may file a petition for a finding of incapacity and
646     appointment of a guardian. [That]
647          (b) A person may seek the limited guardianship [pro se] without an attorney, using the
648     forms described in this section.
649          (c) Any fee for filing a petition for a limited guardianship shall be waived if the
650     guardian is proceeding under this section.
651          (3) Upon filing a petition for limited guardianship under this section, the court shall set
652     a date for hearing.
653          (4) The ward has the right to be present at the hearing and to see and hear all evidence
654     relating to [his] the ward's condition.
655          (5) At that hearing the court shall review the affidavit of the superintendent of the Utah
656     State Developmental Center, described in Subsection (11), and determine whether notice has
657     been given to the appropriate persons described in Subsection (6).
658          [(6) If the proposed guardian is not a parent or relative of the ward, personal notice
659     shall be given to the ward's spouse, parents, and any adult children of the ward. Personal
660     notice shall also be given to other persons as the court may direct.]
661          (6) A person filing a petition under this section shall give notice in accordance with
662     Sections 75-5-106 and 75-5-303.5.
663          (7) The court may, in its discretion, appoint a guardian ad litem to represent the ward in
664     the hearing, and may request independent evaluation by a physician appointed by the court.
665     The physician shall submit his findings to the court in writing.
666          (8) The court may grant the petition for a limited guardianship and sign the Order of
667     Appointment if the court finds that:
668          (a) the appropriate parties have been [given notice] properly served;
669          (b) the ward is incapacitated, based on the affidavit of the superintendent of the Utah
670     State Developmental Center and any affidavit or testimony of persons entitled to receive notice
671     or requested to present evidence under this section; and
672          (c) it is necessary and desirable to establish the guardianship.
673          (9) Venue for these expedited guardianship proceedings shall be the same as that
674     described in Section 75-5-302.
675          (10) A petition for a limited guardianship shall include the following information:
676          (a) the interest of the petitioner;
677          (b) the name, age, residence, and address of the ward;
678          (c) verification that the ward is a resident of the Utah State Developmental Center;
679          (d) the name and address of the nearest relative of the ward; and
680          (e) the reason for appointment of guardianship.
681          (11) The petitioner shall also provide the court with an affidavit of the superintendent
682     of the Utah State Developmental Center that includes the following information:
683          (a) that the ward is a resident of the Utah State Developmental Center;
684          (b) the date the ward was originally admitted to the Utah State Developmental Center;
685          (c) the diagnosis of the ward, including a description of the ward's disabling condition,
686     the level of the ward's intellectual disability, and any medical or physical conditions of the
687     ward;
688          (d) that the Utah State Developmental Center is certified as an intermediate care
689     facility for people with an intellectual disability;
690          (e) that because of that certification, the Utah State Developmental Center receives
691     financial participation from the United States Government for its operation and maintenance
692     costs; and
693          (f) that federal regulations under Title XIX require the ward to have a guardian
694     appointed for the sole purpose of giving consent for medical and dental care and of
695     participation in and approval of the ward's individual program plan.
696          (12) If the court finds that, under the requirements of this section the proposed limited
697     guardian should be appointed for a ward, [it] the court shall enter an order establishing that
698     [limited guardianship in substantially the following form]:
699          [The court finds that:]
700          (a) an appointment of a limited guardianship for [(named ward)] the ward is necessary
701     and desirable as a means of providing continuing care and supervision and to ensure [his] the
702     ward's welfare;
703          (b) the ward is incapacitated;
704          (c) [(named guardian)] the limited guardian is appointed as the limited guardian of
705     [(named ward)] the ward; and
706          (d) the guardianship is a limited guardianship solely for the purpose of:
707          (i) granting permission for medical and dental care on behalf of the ward; and
708          (ii) participation in the development and approval of the ward's individual program
709     plan.
710          (13) (a) Appointment of guardianship under this section places no additional
711     responsibility or liability on the guardian with regard to the ward.
712          (b) The limited guardianship is solely for consent for medical care and approval of the
713     ward's individualized program plan[, and shall not].
714          (c) A limited guardianship may not be construed to increase or create liability or
715     responsibility for the guardian.
716          Section 17. Section 75-5-402 is amended to read:
717          75-5-402. Protective proceedings -- Jurisdiction of affairs of protected persons.
718          After the service of notice in a proceeding seeking the appointment of a conservator or
719     other protective order under Sections 75-5-106 and 75-5-405.5 and until termination of the
720     proceeding, the court in which the petition is filed has:
721          (1) [Exclusive] exclusive jurisdiction to determine the need for a conservator or other
722     protective order until the proceedings are terminated;
723          (2) [Exclusive] exclusive jurisdiction to determine how the estate of the protected
724     person [which] that is subject to the laws of this state shall be managed, expended, or
725     distributed to or for the use of the protected person or any of [his] the protected person's
726     dependents; and
727          (3) [Concurrent] concurrent jurisdiction to determine the validity of claims against the
728     person or estate of the protected person and [his] the protected person's title to any property or
729     claim.
730          Section 18. Section 75-5-405.5 is enacted to read:
731          75-5-405.5. Notice and hearing for appointment of a conservator.
732          (1) Upon the filing of a petition under Section 75-5-404 for appointment of a
733     conservator, the court shall schedule a hearing on the petition.
734          (2) (a) A copy of a petition under Section 75-5-404 and notice of a hearing on the
735     petition in accordance with Section 75-5-106 shall be served personally on the protected
736     person.
737          (b) If the protected person's whereabouts are unknown or personal service cannot be
738     made, service on the protected person shall be made in accordance with the Utah Rules of Civil
739     Procedure, Rule 4.
740          (c) The notice shall:
741          (i) inform the protected person of the person's rights at the hearing, including the right
742     to an attorney and to attend the hearing; and
743          (ii) include a description of the nature, purpose, and consequences of granting the
744     petition.
745          (d) The court may not grant a petition for appointment of a conservator or other
746     protective order under this part if notice substantially complying with this Subsection (2) is not
747     served on the protected person.
748          (3) In a proceeding on a petition under Section 75-5-404, the notice required under
749     Subsection (2) shall be given to:
750          (a) the protected person;
751          (b) (i) the protected person's spouse; or
752          (ii) if the protected person has no spouse, any adult with whom the protected person
753     has shared household responsibilities for more than six months in the 12-month period before
754     the filing of the petition;
755          (c) (i) the protected person's adult children;
756          (ii) if the protected person has no adult children, each parent and adult sibling of the
757     person; or
758          (iii) if the protected person has no adult children or no living parent or adult sibling, at
759     least one adult nearest in kinship to the protected person who can be found with reasonable
760     diligence;
761          (d) any adult stepchildren whom the protected person actively parented during the
762     stepchildren's minor years and with whom the protected person had an ongoing relationship
763     during the two years immediately before the filing of the petition;
764          (e) if applicable:
765          (i) a person responsible for the care or custody of the protected person;
766          (ii) any attorney currently representing the protected person;
767          (iii) the representative payee appointed by the Social Security Administration for the
768     protected person;
769          (iv) a guardian or conservator acting for the protected person in this state or another
770     jurisdiction;
771          (v) a trustee or custodian of a trust or custodianship of which the protected person is a
772     beneficiary;
773          (vi) the fiduciary appointed for the protected person by the United States Department
774     of Veterans Affairs;
775          (vii) an agent designated under a power of attorney for health care in which the
776     protected person is identified as the principal;
777          (viii) an agent designated under a power of attorney for finances in which the protected
778     person is identified as the principal;
779          (ix) a person known to have routinely assisted the protected person with decision
780     making in the six-month period immediately before the filing of the petition;
781          (x) any proposed conservator, including a person nominated by the protected person if
782     the protected person is 12 years old or older; and
783          (xi) if the protected person is a minor, an adult not otherwise listed with whom the
784     minor resides and each person not otherwise listed that had primary care or custody of the
785     minor for at least 60 days during the two years immediately before the filing of the petition or
786     for at least 730 days during the five years immediately before the filing of the petition; and
787          (f) any other person interested in the protected person's welfare that the court
788     determines.
789          (4) Failure to give notice under Subsection (2) does not preclude the court from
790     appointing a conservator.
791          (5) After the appointment of a conservator, notice of a hearing on any other petition for
792     an order under this part, together with a copy of the petition, shall be given to:
793          (a) the protected person if the protected person is 12 years old or older and not missing,
794     detained, or unable to return to the United States;
795          (b) the conservator; and
796          (c) any other person the court determines.
797          Section 19. Section 75-5-406 is amended to read:
798          75-5-406. Protective proceedings -- Request for notice -- Interested person.
799          (1) Any interested person [who] that desires to be notified before any order is made in
800     a protective proceeding may file with the [registrar] clerk of the court a request for notice
801     subsequent to payment of any fee required by statute or court rule. [The]
802          (2) In accordance with the Utah Rules of Civil Procedure, Rule 5, the clerk shall [mail
803     a copy of the demand] give notice of the request to the conservator if one has been appointed.
804          (3) A request is not effective unless [it] the request contains a statement showing the
805     interest of the person making [it and his address, or that of his attorney] the request and the
806     person's or the person's attorney's address, and is effective only as to matters occurring after the
807     filing.
808          (4) Any governmental agency paying or planning to pay benefits to the person to be
809     protected is an interested person in protective proceedings.
810          Section 20. Section 75-5-407 is amended to read:
811          75-5-407. Procedure concerning hearing and order on original petition.
812          (1) (a) Upon receipt of a petition for appointment of a conservator or other protective
813     order because of minority, the court shall set a date for the hearing on the matters alleged in the
814     petition.
815          (b) If, at any time in the proceeding, the court determines that the [interests] interest of
816     the minor [are] is or may be inadequately represented, [it] the court may appoint an attorney to
817     represent the minor, giving consideration to the choice of the minor if 14 years [of age] old or
818     older.
819          (c) An attorney appointed by the court to represent a minor has the powers and duties
820     of a guardian ad litem.
821          (2) (a) Upon receipt of a petition for appointment of a conservator or other protective
822     order for reasons other than minority, the court shall set a date for hearing.
823          (b) Unless the person to be protected has already retained counsel, the court may
824     appoint an attorney to represent the person to be protected who then has the powers and duties
825     of a guardian ad litem.
826          (3) The legal representation of the protected person by an attorney shall terminate upon
827     the appointment of a conservator, unless:
828          (a) there are separate guardianship proceedings still pending before the court
829     subsequent to the appointment of a conservator;
830          (b) there is a timely filed appeal of the appointment of the conservator; or
831          (c) upon an express finding of good cause, the court orders otherwise.
832          (4) If the alleged disability is mental illness, mental deficiency, physical illness or
833     disability, advanced age, chronic use of drugs, or chronic intoxication, the court may direct that
834     the [person to be protected be examined by a physician designated by the court, preferably a
835     physician who is not connected with any institution in which the person is a patient or is
836     detained.] protected person is examined by:
837          (a) a licensed physician;
838          (b) a psychologist;
839          (c) a social worker; or
840          (d) an individual who:
841          (i) is qualified to evaluate the person's alleged cognitive and functional abilities and
842     limitations; and
843          (ii) will not be advantaged or disadvantaged by a decision to grant the petition or
844     otherwise have a conflict of interest.
845          (5) The court may [send] appoint a visitor to interview the protected person. [to be
846     protected. The visitor may be a guardian ad litem or an officer or employee of the court]
847          [(5)] (6) After hearing, upon finding that a basis for the appointment of a conservator
848     or other protective order has been established, the court shall make an appointment or other
849     appropriate protective order.
850          Section 21. Section 75-5-410.5 is enacted to read:
851          75-5-410.5. Who may be a conservator -- Order of priority.
852          (1) Except as otherwise provided in Subsection (3), the court in appointing a
853     conservator shall consider persons qualified to be a conservator in the following order of
854     priority:
855          (a) a conservator, other than a temporary or emergency conservator, currently acting for
856     the protected person in another jurisdiction;
857          (b) a person nominated as conservator by the protected person, including the protected
858     person's most recent nomination made in a power of attorney for finances if:
859          (i) the protected person was 14 years old or older when the nomination was executed;
860     and
861          (ii) the protected person acted with sufficient mental capacity to make the nomination;
862          (c) an agent appointed by the protected person to manage the protected person's
863     property under a power of attorney for finances;
864          (d) a spouse of the protected person; and
865          (e) a family member or other individual who has shown special care and concern for
866     the protected person.
867          (2) If two or more persons have equal priority under Subsection (1), the court shall
868     select as conservator the person the court considers best qualified.
869          (3) In determining the best qualified person, the court shall consider:
870          (a) the person's relationship with the protected person;
871          (b) the person's skills;
872          (c) the expressed wishes of the protected person;
873          (d) the extent to which the person and the protected person have similar values and
874     preference; and
875          (e) the likelihood the person will be able to perform the duties of a conservator
876     successfully.
877          (4) The court, acting in the best interest of the protected person, may decline to appoint
878     as conservator a person having priority under Subsection (1) and appoint a person having a
879     lower priority or no priority.
880          (5) A person that provides paid services to the protected person, or an individual who
881     is employed by a person that provides paid services to the protected person or is the spouse,
882     parent, or child of an individual who provides or is employed to provide paid services to the
883     protected person may not be appointed as conservator unless:
884          (a) the individual is related to the protected person by blood, marriage, or adoption; or
885          (b) the court finds by clear and convincing evidence that the person is the best qualified
886     person available for appointment and the appointment is in the best interest of the protected
887     person.
888          (6) An owner, operator, or employee of a long-term care institution at which the
889     protected person is receiving care may not be appointed as conservator unless the owner,
890     operator, or employee is related to the protected person by blood, marriage, or adoption.
891          Section 22. Section 75-5-412 is amended to read:
892          75-5-412. Terms and requirements of bonds.
893          (1) The following requirements and provisions apply to any bond required under
894     Section 75-5-411:
895          (a) Unless otherwise provided by the terms of the approved bond, sureties are jointly
896     and severally liable with the conservator and with each other[;].
897          (b) (i) By executing an approved bond of a conservator, the surety consents to the
898     jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining
899     to the fiduciary duties of the conservator and naming the surety as a party defendant.
900          (ii) Notice of the proceeding shall be [delivered] given to the surety [or mailed to him
901     by registered or certified mail at his address as listed with the court where the bond is filed and
902     to his address as then known to the petitioner;] in accordance with Section 75-5-106.
903          (c) On petition of a successor, conservator, or any interested person, a proceeding may
904     be initiated against a surety for breach of the obligation of the bond of the conservator[;].
905          (d) The bond of the conservator is not void after the first recovery but may be
906     proceeded against from time to time until the whole penalty is exhausted.
907          (2) No proceeding may be commenced against the surety on any matter as to which an
908     action or proceeding against the primary obligor is barred by adjudication or limitation under
909     this code.
910          Section 23. Section 75-5-413 is amended to read:
911          75-5-413. Acceptance of appointment -- Consent to jurisdiction.
912          (1) By accepting appointment, a conservator submits personally to the jurisdiction of
913     the court in any proceeding relating to the estate that may be instituted by any interested person.
914          (2) Notice of any proceeding shall be [delivered to the conservator or mailed to him by
915     registered or certified mail at his address as listed in the petition for appointment, or as
916     thereafter reported to the court, and to his address as then known to the petitioner.] given to the
917     conservator in accordance with Sections 75-5-106 and 75-4-405.5.
918          Section 24. Section 75-5-417 is amended to read:
919          75-5-417. General duty of conservator.
920          (1) A conservator shall:
921          (a) act as a fiduciary; and [shall]
922          (b) observe the standards of care as set forth in Section 75-7-902.
923          (2) (a) The conservator shall, for all estates in excess of $50,000, excluding the
924     residence owned by the ward, [send] file a report with a full accounting to the court on an
925     annual basis.
926          (b) For estates less than $50,000, excluding the residence owned by the ward, the
927     conservator shall fill out an informal annual report and [mail] file the report to the court.
928          (c) The report shall include the following:
929          (i) a statement of assets at the beginning and end of the reporting year[,];
930          (ii) income received during the year[,];
931          (iii) disbursements for the support of the ward[,]; and
932          (iv) other expenses incurred by the estate.
933          (d) The court may require additional information for a report filed under Subsections
934     (2)(a) and (b).
935          (e) The forms for both the informal report for estates under $50,000, excluding the
936     residence owned by the ward, and the full accounting report for larger estates shall be approved
937     by the judicial council.
938          (f) This annual report shall be examined and approved by the court.
939          (3) (a) Corporate fiduciaries are not required to fully petition the court, but shall submit
940     their internal report annually to the court.
941          (b) The report shall be examined and approved by the court.
942          (4) (a) The court may impose a fine in an amount not to exceed $5,000, if, after
943     receiving written notice of the failure to file and after a grace period of two months have
944     elapsed, a conservator or corporate fiduciary:
945          (i) makes a substantial misstatement on filings of any required annual reports;
946          (ii) is guilty of gross impropriety in handling the property of the ward; or
947          (iii) willfully fails to file the report required by this section.
948          (b) The court may also order restitution of funds misappropriated from the estate of a
949     ward.
950          (c) The penalty shall be paid by the conservator or corporate fiduciary and may not be
951     paid by the estate.
952          (5) These provisions and penalties governing annual reports do not apply if the
953     conservator is the parent of the ward.
954          Section 25. Section 75-5-428 is amended to read:
955          75-5-428. Claims against protected person -- Enforcement.
956          (1) (a) A conservator [must] shall pay from the estate all just claims against the estate
957     and against the protected person arising before or after the conservatorship upon their
958     presentation and allowance.
959          (b) A claim may be presented by [either of the following methods]:
960          [(a) The claimant may deliver]
961          (i) a claimant delivering or [mail] mailing to the conservator a written statement of the
962     claim indicating [its] the claim's basis, the name and address of the claimant, and the amount
963     claimed[.]; or
964          [(b) The claimant may file]
965          (ii) a claimant files a written statement of the claim, in the form prescribed by rule,
966     with the clerk of the court and [deliver or mail] delivers or mails a copy of the statement to the
967     conservator.
968          (c) A claim is considered presented on the first to occur of receipt of the written
969     statement of claim by the conservator, or the filing of the claim with the court.
970          (2) (a) A presented claim is allowed if [it] the claim is not disallowed by written
971     statement mailed by the conservator to the claimant within 60 days after [its] the claim's
972     presentation.
973          (b) The presentation of a claim tolls any statute of limitation relating to the claim until
974     30 days after [its] the claim's disallowance.
975          (3) (a) A claimant whose claim has not been paid may petition the court for
976     determination of [his] the claimant's claim at any time before [it] the claim is barred by the
977     applicable statute of limitation, and, upon due proof, procure an order for its allowance and
978     payment from the estate.
979          (b) If a proceeding is pending against a protected person at the time of appointment of
980     a conservator or is initiated against the protected person thereafter, the moving party [must]
981     shall give notice of the proceeding to the conservator in accordance with Section 75-5-106 if
982     the outcome is to constitute a claim against the estate.
983          (4) If it appears that the estate in conservatorship is likely to be exhausted before all
984     existing claims are paid, preference is to be given to prior claims for the care, maintenance, and
985     education of the protected person or [his] the protected person's dependents and existing claims
986     for expenses of administration.
987          Section 26. Repealer.
988          This bill repeals:
989          Section 75-5-308, Visitor in guardianship proceeding.
990          Section 75-5-309, Notices in guardianship proceedings.
991          Section 75-5-311, Who may be guardian -- Priorities.
992          Section 75-5-405, Notice.
993          Section 75-5-410, Who may be appointed conservator -- Priorities.