Senator Lyle W. Hillyard proposes the following substitute bill:


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: V. Lowry Snow

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          ▸     amends 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          This bill provides a special effective date.
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 court shall give notice of the date, time, and
95     place of the hearing to the person to be notified.
96          (2) Except as otherwise provided in this chapter, notice shall be given, in compliance
97     with the Utah Rules of Civil Procedure, at least 14 days before the hearing.
98          (3) Proof of notice of a hearing under this chapter shall be made before or at the
99     hearing and filed in the proceeding.
100          (4) Notice of a hearing under this chapter shall be in at least 16-point font, in plain
101     language, and to the extent feasible, in a language in which the person to be notified is
102     proficient.
103          Section 4. Section 75-5-107 is enacted to read:
104          75-5-107. Disclosure of bankruptcy or criminal history.
105          (1) Before accepting appointment as a guardian or conservator, a person shall disclose
106     to the court whether the person:
107          (a) is or has been a debtor in a bankruptcy, insolvency, or receivership proceeding; or
108          (b) been convicted of:
109          (i) a felony;
110          (ii) a crime involving dishonesty, neglect, violence, or use of physical force; or
111          (iii) a crime relevant to the functions that the person would assume as guardian or
112     conservator.
113          (2) A guardian or conservator shall promptly disclose to the court whether the guardian
114     or conservator engages or anticipates in engaging an agent that the guardian or conservator
115     knows has been convicted of:
116          (a) a felony;
117          (b) a crime involving dishonesty, neglect, violence, or use of physical force; or
118          (c) a crime relevant to the functions that the agent is being engaged to perform.
119          (3) If a conservator engages or anticipates engaging an agent to manage finances of the
120     person subject to a conservatorship and knows the agent is or has been a debtor in a
121     bankruptcy, insolvency, or receivership proceeding, the conservator shall disclose that
122     knowledge to the court.
123          Section 5. Section 75-5-108 is enacted to read:
124          75-5-108. Compensation of guardian or conservator.
125          (1) Subject to court approval, a guardian is entitled to:
126          (a) reasonable compensation for services as a guardian; and
127          (b) reimbursement for room, board, clothing, and other appropriate expenses advanced
128     for the benefit of the person subject to the guardianship.
129          (2) If a conservator, other than the guardian or a person affiliated with the guardian, is
130     appointed for a protected person, reasonable compensation and reimbursement to the guardian
131     may be approved and paid by the conservator without court approval.
132          (3) Subject to court approval, a conservator is entitled to:
133          (a) reasonable compensation for services; and
134          (b) reimbursement for appropriate expenses from the property of the protected person.
135          (4) In determining reasonable compensation for a guardian or conservator, the court, or
136     a conservator, shall consider:
137          (a) the necessity and quality of the services provided;
138          (b) the experience, training, professional standing, and skills of the guardian or
139     conservator;
140          (c) the difficulty of the services performed, including the degree of skill and care
141     required;
142          (d) the conditions and circumstances under which a service was performed, including
143     whether the service was provided outside regular business hours or under dangerous or
144     extraordinary conditions;
145          (e) the effect of the services on the person subject to the guardianship or
146     conservatorship;
147          (f) the extent to which the services provided were or were not consistent with an
148     individualized plan created by a guardian or conservator; and
149          (g) the fees customarily paid to a person that performs a like service in the community.
150          (5) A guardian or conservator need not use personal funds of the guardian or
151     conservator for the expenses of the person subject to the guardianship or conservatorship.
152          (6) If a person subject to a guardianship or conservatorship seeks to modify or
153     terminate the guardianship or conservatorship or remove the guardian or conservator, the court
154     may order compensation to the guardian or conservator for time spent opposing modification,
155     termination, or removal only to the extent the court determines the opposition was reasonably
156     necessary to protect the interest of the person subject to the guardianship or conservatorship.
157          Section 6. Section 75-5-207 is amended to read:
158          75-5-207. Court appointment of guardian of minor -- Procedure.
159          [(1) Notice of the time and place of hearing of a petition for the appointment of a
160     guardian of a minor is to be given by the petitioner in the manner prescribed by Section
161     75-1-401 to:]
162          [(a) the minor, if the minor is 14 years of age or older;]
163          [(b) the person who has had the principal care and custody of the minor during the 60
164     days preceding the date of the petition;]
165          [(c) any living parent of the minor;]
166          [(d) any guardian appointed by the will or written instrument of the parent of the minor
167     who died last; and]
168          [(e) the school district in which the petitioner resides and a representative of the school
169     district may participate in the hearing.]
170          [(2) (a) Upon hearing, if the court finds that a qualified person seeks appointment,
171     venue is proper, the required notices have been given, the requirements of Sections 75-5-204
172     and 75-5-206 have been met, and the welfare and best interests of the minor will be served by
173     the requested appointment, it may make the appointment.]
174          (1) A petitioner shall give notice of the time and place of a hearing on a petition for the
175     appointment of a guardian of a minor in accordance with Sections 75-5-106 and 75-5-207.5.
176          (2) (a) After a hearing, the court may appoint a guardian of a minor if:
177          (i) a qualified person seeks appointment;
178          (ii) venue is proper;
179          (iii) notice has been given in accordance with Sections 75-5-106 and 75-5-207.5;
180          (iv) the requirements of Sections 75-5-204 and 75-5-206 have been met; and
181          (v) the welfare and best interest of the minor will be served by the requested
182     appointment.
183          (b) In other cases, the court may dismiss the proceedings or make any other disposition
184     of the matter that will best serve the interest of the minor.
185          (3) (a) If necessary, the court may appoint a temporary guardian[,] with the status of an
186     ordinary guardian of a minor.
187          (b) The authority of a temporary guardian may not last longer than six months.
188          (4) If, at any time in the proceeding, the court determines that the [interests] interest of
189     the minor are or may be inadequately represented, [it] the court may appoint an attorney to
190     represent the minor, giving consideration to the preference of the minor if the minor is 14 years
191     [of age] old or older.
192          Section 7. Section 75-5-207.5 is enacted to read:
193          75-5-207.5. Notice of a hearing for appointment of a guardian for a minor.
194          (1) Upon the filing of a petition for an appointment of a guardian for a minor under this
195     part, the court shall:
196          (a) schedule a hearing; and
197          (b) (i) serve notice in accordance with Section 75-5-106, together with a copy of the
198     petition, personally served on each of the following that is not the petitioner:
199          (A) the minor if the minor will be 12 years old or older at the time of the hearing;
200          (B) each parent of the minor, or if there is none, the adult nearest in kinship who can be
201     found with reasonable diligence;
202          (C) any adult with whom the minor resides;
203          (D) each person that had primary care or custody of the minor for at least 60 days
204     during the two years immediately before the filing of the petition or for at least 730 days during
205     the five years immediately before the filing of the petition; and
206          (E) any other person the court determines should receive personal service of notice;
207     and
208          (ii) give notice in accordance with Section 75-5-106, together with a copy of the
209     petition, to:
210          (A) any person nominated as guardian by the minor if the minor is 12 years old or
211     older;
212          (B) any person nominated as guardian by a parent of the minor;
213          (C) each grandparent and adult sibling of the minor;
214          (D) any guardian or conservator acting for the minor in any jurisdiction; and
215          (E) any other person the court determines.
216          (2) Notice under Subsection (1) shall include:
217          (a) a statement of the right to request appointment of an attorney and to object to
218     appointment of a guardian; and
219          (b) a description of the nature, purpose, and consequences of appointment of a
220     guardian.
221          (3) The court may not grant a petition for guardianship of a minor if notice
222     substantially complying with Subsection (1)(b) is not served on:
223          (a) the minor if the minor is 12 years old or older; and
224          (b) each parent of the minor, unless the court finds by clear and convincing evidence
225     that the parent cannot with due diligence be located and served or the parent waived, in a
226     record, the right to notice.
227          Section 8. Section 75-5-208 is amended to read:
228          75-5-208. Consent to service by acceptance of appointment -- Notice.
229          (1) By accepting a testamentary, instrumental, or court appointment as guardian, a
230     guardian submits personally to the jurisdiction of the court in any proceeding relating to the
231     guardianship that may be instituted by any interested person or any person interested in the
232     welfare of the minor.
233          (2) Notice of any proceeding under this part shall be [delivered to the guardian or
234     mailed to him by ordinary mail at his address as listed in the court records and to his address as
235     then known to the petitioner.] given in accordance with Sections 75-5-106 and 75-5-207.5.
236          (3) Letters of guardianship shall indicate whether the guardian was appointed by will,
237     written instrument, or by court order.
238          Section 9. Section 75-5-303 is amended to read:
239          75-5-303. Procedure for court appointment of a guardian of an incapacitated
240     person.
241          (1) [An incapacitated person] A person alleged to be incapacitated or any person
242     interested in the [incapacitated] person's welfare may petition for a finding of incapacity and
243     appointment of a guardian.
244          (2) (a) Upon the filing of a petition, the court shall set a date for hearing on the issues
245     of incapacity.
246          [(b) Unless the allegedly incapacitated person has counsel of the person's own choice,
247     the court shall appoint an attorney to represent the person in the proceeding the cost of which
248     shall be paid by the person alleged to be incapacitated, unless the allegedly incapacitated
249     person and the allegedly incapacitated person's parents are indigent.]
250          (b) (i) Except as provided in Subsection (6)(d), if the person alleged to be incapacitated
251     in a proceeding for an appointment of a guardian is not represented by an attorney, the court
252     shall appoint an attorney to represent the person.
253          (ii) The cost of the allegedly incapacitated person's attorney under Subsection (2)(b)(i)
254     shall be paid by the person alleged to be incapacitated, unless the person and the person's
255     parents are indigent.
256          (c) If the court determines that the petition is without merit, the attorney fees and court
257     costs shall be paid by the person filing the petition.
258          (d) If the court appoints the petitioner or the petitioner's nominee as guardian of the
259     incapacitated person, regardless of whether the nominee is specified in the moving petition or
260     nominated during the proceedings, the petitioner [shall be] is entitled to receive from the
261     incapacitated person reasonable attorney fees and court costs incurred in bringing, prosecuting,
262     or defending the petition.
263          (3) The legal representation of the incapacitated person by an attorney shall terminate
264     upon the appointment of a guardian, unless:
265          (a) there [are separate conservatorship proceedings still] is a separate conservatorship
266     proceeding pending before the court subsequent to the appointment of a guardian;
267          (b) there is a timely filed appeal of the appointment of the guardian or the
268     determination of incapacity; or
269          (c) upon an express finding of good cause, the court orders otherwise.
270          [(4) The person alleged to be incapacitated may be examined by a physician appointed
271     by the court who shall submit a report in writing to the court and may be interviewed by a
272     visitor sent by the court. The visitor also may interview the person seeking appointment as
273     guardian, visit the present place of abode of the person alleged to be incapacitated and the place
274     it is proposed that the person will be detained or reside if the requested appointment is made,
275     conduct other investigations or observations as directed by the court, and submit a report in
276     writing to the court.]
277          (4) A court may:
278          (a) order a person who is alleged to be incapacitated be examined; and
279          (b) appoint one of the following individuals to examine the person:
280          (i) a licensed physician;
281          (ii) a psychologist;
282          (iii) a social worker;
283          (iv) an individual who:
284          (A) is qualified to evaluate the incapacitated person's alleged cognitive and functional
285     abilities and limitations; and
286          (B) will not be advantaged or disadvantaged by a decision to grant the petition or
287     otherwise have a conflict of interest.
288          (b) An individual who provides an examination in Subsection (4)(a) shall promptly file
289     the report with the court.
290          (5) (a) A person who is alleged to be incapacitated may be interviewed by a visitor sent
291     by the court.
292          (b) A visitor may:
293          (i) interview an individual seeking to be appointed as a guardian;
294          (ii) (A) visit the present place of abode of the person alleged to be incapacitated; or
295          (B) visit the place that the person will be detained or reside if the requested
296     appointment is made;
297          (iii) conduct other investigations or observations as directed by the court; and
298          (iv) submit a report in writing to the court.
299          [(5)] (6) (a) [The] A person alleged to be incapacitated shall:
300          (i) be present at the hearing in person; and
301          (ii) see or hear all evidence bearing upon the person's condition.
302          (b) If the person seeking the guardianship requests a waiver of presence of the person
303     alleged to be incapacitated, the court shall order an investigation by a [court] visitor[, the costs
304     of which shall be paid by the person seeking the guardianship].
305          [(b) The] (c) An investigation by a [court] visitor under Subsection (5)(b) is not
306     required if there is clear and convincing evidence from a licensed physician that the person
307     alleged to be incapacitated has:
308          [(i) fourth stage Alzheimer's Disease;]
309          (i) severe dementia due to Alzheimer's Disease;
310          (ii) extended comatosis; or
311          (iii) (A) an intellectual disability; and
312          (B) an intelligence quotient score under 25.
313          [(c) The person]
314          (d) (i) A person alleged to be incapacitated is entitled to:
315          (A) be represented by counsel[, to];
316          (B) present evidence[, to];
317          (C) cross-examine witnesses, including the court-appointed physician and the visitor[,
318     and to]; and
319          (D) a trial by jury.
320          (ii) The issue may be determined at a closed hearing without a jury if the person
321     alleged to be incapacitated or the person's counsel so requests.
322          [(d)] (e) Counsel for the person alleged to be incapacitated[, as defined in Subsection
323     75-1-201(22),] is not required if:
324          (i) the person is the biological or adopted child of the petitioner;
325          (ii) the value of the person's entire estate does not exceed $20,000 as established by an
326     affidavit of the petitioner in accordance with Section 75-3-1201;
327          (iii) the person appears in court with the petitioner;
328          (iv) the person is given the opportunity to communicate, to the extent possible, the
329     person's acceptance of the appointment of petitioner;
330          (v) no attorney from the state court's list of attorneys who have volunteered to represent
331     respondents in guardianship proceedings is able to provide counsel to the person within 60
332     days [of the date of the appointment described in Subsection (2)] from the day on which
333     counsel is appointed under Subsection (2)(b);
334          (vi) the court is satisfied that counsel is not necessary in order to protect the interests of
335     the person; and
336          (vii) the court appoints a visitor under Subsection [(4)] (5).
337          Section 10. Section 75-5-303.5 is enacted to read:
338          75-5-303.5. Notice of a hearing for appointment of a guardian for an allegedly
339     incapacitated person.
340          (1) Upon the filing of a petition for an appointment of a guardian for a person alleged
341     to be incapacitated under Section 75-5-303, the court shall:
342          (a) schedule a hearing on the petition; and
343          (b) serve notice of the hearing on the petition in accordance with Section 75-5-106,
344     together with a copy of the petition, personally on the person for whom the guardianship is
345     sought.
346          (c) The notice shall:
347          (i) inform the person alleged to be incapacitated of the person's rights at the hearing,
348     including the right to an attorney and to attend the hearing; and
349          (ii) include a description of the nature, purpose, and consequences of granting the
350     petition.
351          (d) The court may not grant the petition if notice substantially complying with this
352     Subsection (2) is not served on the person alleged to be incapacitated.
353          (2) In a proceeding on a petition under Section 75-5-303, the notice required under
354     Subsection (1)(b) shall be given to the following persons if the person may be found through
355     reasonable diligence:
356          (a) (i) the allegedly incapacitated person's spouse; or
357          (ii) if the allegedly incapacitated person has no spouse, any adult with whom the
358     allegedly incapacitated person shared household responsibilities for more than six months in
359     the 12-month period immediately before the filing of the petition;
360          (b) (i) the allegedly incapacitated person's adult children;
361          (ii) if the allegedly incapacitated person has no adult children, each parent and adult
362     sibling of the allegedly incapacitated person; or
363          (iii) if the allegedly incapacitated person has no adult children and no living parent or
364     adult sibling, at least one adult nearest in kinship to the allegedly incapacitated person who can
365     be found with reasonable diligence;
366          (c) any adult stepchildren whom the allegedly incapacitated person actively parented
367     during the stepchildren's minor years and with whom the allegedly incapacitated person had an
368     ongoing relationship in the two-year period immediately before the filing of the petition;
369          (d) if applicable:
370          (i) a person responsible for the care of the allegedly incapacitated person;
371          (ii) any attorney currently representing the allegedly incapacitated person;
372          (iii) any representative payee appointed by the Social Security Administration for the
373     allegedly incapacitated person;
374          (iv) a guardian or conservator acting for the allegedly incapacitated person in this state
375     or in another jurisdiction;
376          (v) a trustee or custodian of a trust or custodianship of which the allegedly
377     incapacitated person is a beneficiary;
378          (vi) any fiduciary for the allegedly incapacitated person appointed by the United States
379     Department of Veterans Affairs;
380          (vii) an agent designated under a power of attorney for health care in which the
381     allegedly incapacitated person is identified as the principal;
382          (viii) an agent designated under a power of attorney for finances in which the allegedly
383     incapacitated person is identified as the principal;
384          (ix) a person nominated as guardian by the allegedly incapacitated person;
385          (x) a person nominated as guardian by the allegedly incapacitated person's parent or
386     spouse in a will or other signed record;
387          (xii) a proposed guardian; and
388          (xiii) a person known by the petitioner to have routinely assisted the allegedly
389     incapacitated person with decision making during the six months immediately before the filing
390     of the petition; and
391          (e) any other person interested in the respondent's welfare the court determines.
392          (3) (a) Failure to give notice under Subsection (1) does not preclude the court from
393     appointing a guardian.
394          (b) Notice shall be given to a person described in Subsection (2) even if the person is
395     found after the filing of the petition.
396          (4) After the appointment of a guardian, the court shall provide notice of a hearing on
397     any other petition for an order under this part, together with a copy of the petition or order, to:
398          (a) the incapacitated person subject to the guardianship;
399          (b) the guardian; and
400          (c) any other person the court determines.
401          Section 11. Section 75-5-304 is amended to read:
402          75-5-304. Findings -- Limited guardianship preferred -- Order of appointment.
403          (1) [The] A court may appoint a guardian as requested if [it] the court is satisfied that
404     the person for whom a guardian is sought is incapacitated and that the appointment is necessary
405     or desirable as a means of providing continuing care and supervision of the incapacitated
406     person.
407          (2) (a) (i) The court shall prefer a limited guardianship and may only grant a full
408     guardianship if no other alternative exists.
409          (ii) If the court does not grant a limited guardianship, a specific finding shall be made
410     that nothing less than a full guardianship is adequate.
411          (b) (i) An order of appointment of a limited guardianship shall state the limitations of
412     the guardianship.
413          (ii) Letters of guardianship for a limited guardianship shall state the limitations of the
414     guardianship unless the court determines for good cause shown that a limitation should not be
415     listed in the letters.
416          (c) The court may modify the powers of the guardian to the specific needs of the
417     incapacitated person subject to the guardianship upon clear and convincing evidence that
418     modification is necessary to address the needs of the incapacitated person.
419          (3) (a) A guardian appointed by will or written instrument, under Section 75-5-301,
420     whose appointment has not been prevented or nullified under Subsection 75-5-301(4), has
421     priority over any guardian who may be appointed by the court[, but the].
422          (b) The court may:
423          (i) proceed with an appointment upon a finding that the testamentary or instrumental
424     guardian has failed to accept the appointment within 30 days after the testamentary or
425     instrumental guardian received notice of the guardianship proceeding[. Alternatively, the court
426     may]; or
427          (ii) dismiss the proceeding or enter any other appropriate order.
428          Section 12. Section 75-5-305 is amended to read:
429          75-5-305. Acceptance of appointment -- Consent to jurisdiction.
430          (1) (a) By accepting appointment, a guardian submits personally to the jurisdiction of
431     the court in any proceeding relating to the guardianship [that].
432          (b) A guardianship proceeding may be instituted by any interested person or any person
433     interested in the welfare of the [ward] person for whom the guardianship is sought.
434          (2) Notice of any proceeding shall be [delivered to the guardian or mailed to him by
435     ordinary mail at his address as listed in the court records and to his address as then known to
436     the petitioner] given to the guardian in accordance with Section 75-5-106 and Section
437     75-5-303.5.
438          Section 13. Section 75-5-310.5 is amended to read:
439          75-5-310.5. Temporary guardians.
440          [(1) If, after notice and hearing as required by Section 75-5-303,]
441          (1) (a) If a person files a petition for the appointment of a temporary guardian for a
442     person alleged to be incapacitated, the court shall give notice in accordance with Sections
443     75-5-106 and 75-5-303.5.
444          (b) If the court finds good cause, the court may:
445          [(a)] (i) appoint a temporary guardian;
446          [(b)] (ii) convert an emergency guardian to a temporary guardian if an emergency
447     guardian has been appointed under Section 75-5-310; or
448          [(c)] (iii) appoint a different person as temporary guardian to replace an emergency
449     guardian appointed under Section 75-5-310.
450          (2) Unless the allegedly incapacitated person has already obtained counsel in this
451     proceeding or an attorney has been already appointed for the person, the court shall appoint an
452     attorney to represent the person in the proceeding.
453          (3) (a) Until a full hearing and further order of the court, the temporary guardian shall
454     be charged with the care and custody of the [ward] allegedly incapacitated person and may not
455     permit the [ward] allegedly incapacitated person to be removed from the state.
456          (b) The authority of any permanent guardian previously appointed by the court is
457     suspended so long as a temporary guardian has authority.
458          (4) A temporary guardian:
459          (a) may be removed at any time[,]; and
460          (b) shall obey all orders and make any reports required by the court.
461          (5) A temporary guardian has all of the powers and duties of a permanent guardian as
462     set forth in Section 75-5-312.
463          Section 14. Section 75-5-311.5 is enacted to read:
464          75-5-311.5. Who may be a guardian for an incapacitated person -- Order of
465     priority.
466          (1) Except as provided in Subsection (3), the court in appointing a guardian for a
467     person alleged to be incapacitated shall consider persons qualified to be guardian in the
468     following order of priority:
469          (a) a guardian, other than a temporary or emergency guardian, currently acting for the
470     incapacitated person in another jurisdiction;
471          (b) a person nominated as guardian by the incapacitated person, including the
472     incapacitated person's most recent nomination made in a power of attorney or an advanced
473     health care directive if:
474          (i) the incapacitated person was 14 years old or older when the nomination was
475     executed; and
476          (ii) the incapacitated person acted with sufficient mental capacity to make the
477     nomination;
478          (c) a person nominated as guardian by the incapacitated person, including the
479     incapacitated person's most recent nomination made in a power of attorney or an advanced
480     health care directive;
481          (d) an agent appointed by the incapacitated person under a power of attorney for health
482     care;
483          (e) a spouse of the incapacitated person;
484          (f) a family member or other individual who has shown special care and concern for
485     the incapacitated person;
486          (g) the Office of Public Guardian created in Title 62A, Chapter 14, Office of Public
487     Guardian Act; and
488          (h) a specialized care professional that is certified as a guardian or a master guardian by
489     an organization that provides guardianship certification.
490          (2) (a) If two or more persons have equal priority under Subsection (1), the court shall
491     select as guardian the person the court considers best qualified.
492          (b) In determining the best qualified person, the court shall consider:
493          (i) the person's relationship with the incapacitated person;
494          (ii) the person's skills;
495          (iii) the expressed wishes of the incapacitated person;
496          (iv) the extent to which the person and the incapacitated person have similar values and
497     preferences; and
498          (v) the likelihood the person will be able to perform the duties of a guardian
499     successfully.
500          (3) The court, acting in the best interest of the incapacitated person, may decline to
501     appoint as guardian a person having priority under Subsection (1) and appoint a person having
502     a lower priority or no priority.
503          (4) A person that provides paid services to an incapacitated person, or an individual
504     who is employed by a person that provides paid services to the incapacitated person or is the
505     spouse, parent, or child of an individual who provides or is employed to provide paid services
506     to the incapacitated person, may not be appointed as guardian unless:
507          (a) the individual is related to the incapacitated person by blood, marriage, or adoption;
508     or
509          (b) the court finds by clear and convincing evidence that the person is the best qualified
510     person available for appointment and the appointment is in the best interest of the incapacitated
511     person.
512          (5) An owner, operator, or employee of a long-term care institution at which an
513     incapacitated person is receiving care may not be appointed as guardian for the incapacitated
514     person unless the owner, operator, or employee is related to the incapacitated person by blood,
515     marriage, or adoption.
516          Section 15. Section 75-5-312 is amended to read:
517          75-5-312. General powers and duties of guardian -- Penalties.
518          (1) A guardian of an incapacitated person has only the powers, rights, and duties
519     respecting the [ward] incapacitated person granted in the order of appointment under Section
520     75-5-304.
521          (2) Except as provided in Subsection (4), a guardian has the same powers, rights, and
522     duties respecting the [ward] incapacitated person that a parent has respecting the parent's
523     unemancipated minor child.
524          (3) In particular, and without qualifying Subsections (1) and (2), a guardian has the
525     following powers and duties, except as modified by order of the court:
526          (a) To the extent that it is consistent with the terms of any order by a court of
527     competent jurisdiction relating to detention or commitment of the [ward] incapacitated person,
528     the guardian is entitled to custody of the person of the [ward] incapacitated person and may
529     establish the [ward's] incapacitated person's place of abode within or without this state.
530          (b) If entitled to custody of the [ward] incapacitated person the guardian shall provide
531     for the care, comfort, and maintenance of the [ward] incapacitated person and, whenever
532     appropriate, arrange for the [ward's] incapacitated person's training and education. Without
533     regard to custodial rights of the [ward's] incapacitated person, the guardian shall take
534     reasonable care of the [ward's] incapacitated person's clothing, furniture, vehicles, and other
535     personal effects and commence protective proceedings if other property of the [ward]
536     incapacitated person is in need of protection.
537          (c) A guardian may give any consents or approvals that may be necessary to enable the
538     ward to receive medical or other professional care, counsel, treatment, or service.
539          (d) A guardian may not unreasonably restrict visitation with the [ward] incapacitated
540     person by family, relatives, or friends.
541          (e) If no conservator for the estate of the [ward] incapacitated person has been
542     appointed, the guardian may:
543          (i) institute proceedings to compel any person under a duty to support the ward or to
544     pay sums for the welfare of the [ward] incapacitated person to perform that duty;
545          (ii) compel the production of the [ward's] incapacitated person's estate documents,
546     including the [ward's] incapacitated person's will, trust, power of attorney, and any advance
547     health care directive; and
548          (iii) receive money and tangible property deliverable to the [ward] incapacitated person
549     and apply the money and property for support, care, and education of the ward:
550          (A) except that the guardian may not use funds from the [ward's] incapacitated person's
551     estate for room and board that the guardian, the guardian's spouse, parent, or child have
552     furnished the [ward] incapacitated person unless a charge for the service is approved by order
553     of the court made upon notice to at least one adult relative in the nearest degree of kinship to
554     the [ward] incapacitated person in which there is an adult relative; and
555          (B) except that the guardian shall exercise care to conserve any excess for the [ward's]
556     incapacitated person's needs.
557          (f) (i) A guardian is required to report the condition of the [ward] incapacitated person
558     and of the estate that has been subject to the guardian's possession or control, as required by the
559     court or court rule.
560          (ii) A guardian is required to immediately notify all interested persons if the guardian
561     reasonably believes that the [ward's] incapacitated person's death is likely to occur within the
562     next 30 days, based on:
563          (A) the guardian's own observations; or
564          (B) information from the [ward's] incapacitated person's physician or other medical
565     care providers.
566          (iii) A guardian is required to immediately notify persons [who] that request
567     notification and are not restricted in associating with the [ward pursuant to] incapacitated
568     person under Section 75-5-312.5 of:
569          (A) the [ward's] incapacitated person's admission to a hospital for three or more days or
570     to a hospice program;
571          (B) the [ward's] incapacitated person's death; and
572          (C) the arrangements for the disposition of the [ward's] incapacitated person's remains .
573          (iv) (A) Unless emergency conditions exist, a guardian is required to file with the court
574     a notice of the guardian's intent to move the [ward] incapacitated person and to serve [the
575     notice on all interested persons at least 10 days before the move.] notice to all interested
576     persons in accordance with Section 75-5-106.
577          (B) The guardian shall take reasonable steps to notify all interested persons and to file
578     the notice with the court as soon as practicable following the earlier of the move or the date
579     when the guardian's intention to move the [ward] incapacitated person is made known to the
580     ward, the ward's care giver, or any other third party.
581          (v) (A) If no conservator for the estate of the [ward] incapacitated person has been
582     appointed, the guardian shall, for all estates in excess of $50,000, excluding the residence
583     owned by the [ward] incapacitated person, [send] file a report with a full accounting to the
584     court on an annual basis.
585          (B) For estates less than $50,000, excluding the residence owned by the [ward]
586     incapacitated person, the guardian shall fill out an informal annual report and [mail] file the
587     report [to] with the court.
588          (C) A report under Subsection (3)(f)(v)(A) or (B) shall include a statement of assets at
589     the beginning and end of the reporting year, income received during the year, disbursements for
590     the support of the [ward] incapacitated person, and other expenses incurred by the estate. The
591     guardian shall also report the physical conditions of the [ward] incapacitated person, the place
592     of residence, and a list of others living in the same household. The court may require
593     additional information.
594          (D) The forms for both the informal report for estates under $50,000, excluding the
595     residence owned by the [ward] incapacitated person, and the full accounting report for larger
596     estates shall be approved by the Judicial Council.
597          (E) An annual report shall be examined and approved by the court.
598          (F) If the [ward's] incapacitated person's income is limited to a federal or state program
599     requiring an annual accounting report, a copy of that report may be submitted to the court in
600     lieu of the required annual report.
601          (vi) Corporate fiduciaries are not required to petition the court, but shall submit their
602     internal report annually to the court. The report shall be examined and approved by the court.
603          (vii) The guardian shall also render an annual accounting of the status of the person to
604     the court that shall be included in the petition or the informal annual report as required under
605     this Subsection (3)(f). If a fee is paid for an accounting of an estate, a fee may not be charged
606     for an accounting of the status of a person.
607          (viii) If a guardian:
608          (A) makes a substantial misstatement on filings of annual reports;
609          (B) is guilty of gross impropriety in handling the property of the [ward] incapacitated
610     person; or
611          (C) willfully fails to file the report required by this Subsection (3)(f), after receiving
612     written notice from the court of the failure to file and after a grace period of two months has
613     elapsed, the court may impose a penalty in an amount not to exceed $5,000.
614          (ix) The court may also order restitution of funds misappropriated from the estate of [a
615     ward] an incapacitated person. The penalty shall be paid by the guardian and may not be paid
616     by the estate.
617          (x) The provisions and penalties in this Subsection (3)(f) governing annual reports do
618     not apply if the guardian or a coguardian is the parent of the [ward] incapacitated person.
619          (xi) For the purposes of Subsections (3)(f)[(i),] (ii), (iii), and (iv), "interested persons"
620     means [those persons] any person required to receive notice in guardianship proceedings as set
621     forth in Section [75-5-309] 75-5-303.5.
622          (g) If a conservator has been appointed:
623          (i) all of the [ward's] incapacitated person's estate received by the guardian in excess of
624     those funds expended to meet current expenses for support, care, and education of the [ward]
625     incapacitated person shall be paid to the conservator for management as provided in this code;
626     and
627          (ii) the guardian shall account to the conservator for funds expended.
628          (4) (a) A court may, in the order of appointment, place specific limitations on the
629     guardian's power.
630          (b) A guardian may not prohibit or place restrictions on association with a relative or
631     qualified acquaintance of an adult [ward] incapacitated person, unless permitted by court order
632     under Section 75-5-312.5.
633          (c) A guardian of an incapacitated person is not liable to a third person for acts of the
634     [guardian's ward] incapacitated person solely by reason of the relationship described in
635     Subsection (2).
636          (5) Any guardian of [one] an incapacitated person for whom a conservator also has
637     been appointed shall control the custody and care of the [ward] incapacitated person and is
638     entitled to receive reasonable sums for services and for room and board furnished to the [ward]
639     incapacitated person as agreed upon between the guardian and the conservator, if the amounts
640     agreed upon are reasonable under the circumstances. The guardian may request the conservator
641     to expend the [ward's] incapacitated person's estate by payment to third persons or institutions
642     for the [ward's] incapacitated person's care and maintenance.
643          (6) A person [who] that refuses to accept the authority of a guardian with authority
644     over financial decisions to transact business with the assets of the [protected person]
645     incapacitated person after receiving a certified copy of letters of guardianship is liable for costs,
646     expenses, attorney fees, and damages if the court determines that the person did not act in good
647     faith in refusing to accept the authority of the guardian.
648          (7) A guardian shall, to the extent practicable, encourage the [ward] incapacitated
649     person to participate in decisions, exercise self-determination, act on the [ward's] incapacitated
650     person's own behalf, and develop or regain the capacity to manage the [ward's] incapacitated
651     person's personal affairs. To the extent known, a guardian, in making decisions, shall consider
652     the expressed desires and personal values of the [ward] incapacitated person.
653          Section 16. Section 75-5-316 is amended to read:
654          75-5-316. Expedited guardianship proceedings.
655          (1) (a) With regard to persons who are residents of the Utah State Developmental
656     Center, the expedited process provided by this section may be applied to obtain a limited
657     guardianship.
658          (b) [For purposes of this section] As used in this section:
659          (i) "Incapacitated person" means a resident of the Utah State Developmental Center
660     who is the subject of guardianship proceedings under this section.
661          [(i)] (ii) "Limited guardianship" means a guardianship solely for the purpose of
662     granting consent for medical care and for participation in approval of the [ward's] incapacitated
663     person's individualized program plan.
664          [(ii) "Ward" means a resident of the Utah State Developmental Center who is the
665     subject of guardianship proceedings under this section.]
666          (2) (a) Any person interested in the [incapacitated person's welfare] the welfare of a
667     person alleged to be incapacitated may file a petition for a finding of incapacity and
668     appointment of a guardian. [That]
669          (b) A person may seek the limited guardianship [pro se] without an attorney, using the
670     forms described in this section.
671          (c) Any fee for filing a petition for a limited guardianship shall be waived if the
672     guardian is proceeding under this section.
673          (3) Upon filing a petition for limited guardianship under this section, the court shall set
674     a date for hearing.
675          (4) The [ward] incapacitated person has the right to be present at the hearing and to see
676     and hear all evidence relating to [his] the incapacitated person's condition.
677          (5) At that hearing the court shall review the affidavit of the superintendent of the Utah
678     State Developmental Center, described in Subsection (11), and determine whether notice has
679     been given to the appropriate persons described in Subsection (6).
680          [(6) If the proposed guardian is not a parent or relative of the ward, personal notice
681     shall be given to the ward's spouse, parents, and any adult children of the ward. Personal
682     notice shall also be given to other persons as the court may direct.]
683          (6) A person filing a petition under this section shall give notice in accordance with
684     Sections 75-5-106 and 75-5-303.5.
685          (7) The court may, in [its] the court's discretion, appoint a guardian ad litem to
686     represent the [ward] incapacitated person in the hearing, and may request independent
687     evaluation by a physician appointed by the court. The physician shall submit his findings to the
688     court in writing.
689          (8) The court may grant the petition for a limited guardianship and sign the Order of
690     Appointment if the court finds that:
691          (a) the appropriate parties have been [given notice] properly served;
692          (b) the [ward] incapacitated person is incapacitated, based on the affidavit of the
693     superintendent of the Utah State Developmental Center and any affidavit or testimony of
694     persons entitled to receive notice or requested to present evidence under this section; and
695          (c) it is necessary and desirable to establish the guardianship.
696          (9) Venue for these expedited guardianship proceedings shall be the same as that
697     described in Section 75-5-302.
698          (10) A petition for a limited guardianship shall include the following information:
699          (a) the interest of the petitioner;
700          (b) the name, age, residence, and address of the ward;
701          (c) verification that the [ward] incapacitated person is a resident of the Utah State
702     Developmental Center;
703          (d) the name and address of the nearest relative of the [ward] incapacitated person; and
704          (e) the reason for appointment of guardianship.
705          (11) The petitioner shall also provide the court with an affidavit of the superintendent
706     of the Utah State Developmental Center that includes the following information:
707          (a) that the [ward] incapacitated person is a resident of the Utah State Developmental
708     Center;
709          (b) the date the [ward] incapacitated person was originally admitted to the Utah State
710     Developmental Center;
711          (c) the diagnosis of the [ward] incapacitated person, including a description of the
712     [ward's] person's disabling condition, the level of the [ward's] incapacitated person's
713     intellectual disability, and any medical or physical conditions of the [ward] incapacitated
714     person;
715          (d) that the Utah State Developmental Center is certified as an intermediate care
716     facility for people with an intellectual disability;
717          (e) that because of that certification, the Utah State Developmental Center receives
718     financial participation from the United States Government for [its] the Utah State
719     Developmental Center's operation and maintenance costs; and
720          (f) that federal regulations under Title XIX require the [ward] incapacitated person to
721     have a guardian appointed for the sole purpose of giving consent for medical and dental care
722     and of participation in and approval of the [ward's] incapacitated person's individual program
723     plan.
724          (12) If the court finds that, under the requirements of this section the proposed limited
725     guardian should be appointed for an incapacitated person, [it] the court shall enter an order
726     establishing that [limited guardianship in substantially the following form]:
727          [The court finds that:]
728          (a) an appointment of a limited guardianship for [(named ward)] the incapacitated
729     person is necessary and desirable as a means of providing continuing care and supervision and
730     to ensure [his] the incapacitated person's welfare;
731          (b) the [ward] incapacitated person is incapacitated;
732          (c) [(named guardian)] the limited guardian is appointed as the limited guardian of
733     [(named ward)] the incapacitated person; and
734          (d) the guardianship is a limited guardianship solely for the purpose of:
735          (i) granting permission for medical and dental care on behalf of the [ward]
736     incapacitated person; and
737          (ii) participation in the development and approval of the [ward's] incapacitated person's
738     individual program plan.
739          (13) (a) Appointment of guardianship under this section places no additional
740     responsibility or liability on the guardian with regard to the [ward] incapacitated person.
741          (b) The limited guardianship is solely for consent for medical care and approval of the
742     [ward's] incapacitated person's individualized program plan[, and shall not].
743          (c) A limited guardianship may not be construed to increase or create liability or
744     responsibility for the guardian.
745          Section 17. Section 75-5-402 is amended to read:
746          75-5-402. Protective proceedings -- Jurisdiction of affairs of protected persons.
747          After the service of notice in a proceeding seeking the appointment of a conservator or
748     other protective order under Sections 75-5-106 and 75-5-405.5 and until termination of the
749     proceeding, the court in which the petition is filed has:
750          (1) [Exclusive] exclusive jurisdiction to determine the need for a conservator or other
751     protective order until the proceedings are terminated;
752          (2) [Exclusive] exclusive jurisdiction to determine how the estate of the protected
753     person [which] that is subject to the laws of this state shall be managed, expended, or
754     distributed to or for the use of the protected person or any of [his] the protected person's
755     dependents; and
756          (3) [Concurrent] concurrent jurisdiction to determine the validity of claims against the
757     person or estate of the protected person and [his] the protected person's title to any property or
758     claim.
759          Section 18. Section 75-5-405.5 is enacted to read:
760          75-5-405.5. Notice and hearing for appointment of a conservator.
761          (1) (a) Upon the filing of a petition under Section 75-5-404 for appointment of a
762     conservator, the court shall:
763          (i) schedule a hearing on the petition; and
764          (ii) serve notice of a hearing on the petition in accordance with Section 75-5-106,
765     together with a copy of the petition, personally on the protected person.
766          (c) If the protected person's whereabouts are unknown or personal service cannot be
767     made, service on the protected person shall be made in accordance with the Utah Rules of Civil
768     Procedure, Rule 4.
769          (d) The notice shall:
770          (i) inform the protected person of the person's rights at the hearing, including the right
771     to an attorney and to attend the hearing; and
772          (ii) include a description of the nature, purpose, and consequences of granting the
773     petition.
774          (e) The court may not grant a petition for appointment of a conservator or other
775     protective order under this part if notice substantially complying with this Subsection (1) is not
776     served on the protected person.
777          (2) In a proceeding on a petition under Section 75-5-404, the notice required under
778     Subsection (1) shall be given to the following persons if the person may be found through
779     reasonable diligence:
780          (a) (i) the protected person's spouse; or
781          (ii) if the protected person has no spouse, any adult with whom the protected person
782     has shared household responsibilities for more than six months in the 12-month period before
783     the filing of the petition;
784          (b) (i) the protected person's adult children;
785          (ii) if the protected person has no adult children, each parent and adult sibling of the
786     person; or
787          (iii) if the protected person has no adult children or no living parent or adult sibling, at
788     least one adult nearest in kinship to the protected person who can be found with reasonable
789     diligence;
790          (c) any adult stepchildren whom the protected person actively parented during the
791     stepchildren's minor years and with whom the protected person had an ongoing relationship
792     during the two years immediately before the filing of the petition;
793          (d) if applicable:
794          (i) a person responsible for the care or custody of the protected person;
795          (ii) any attorney currently representing the protected person;
796          (iii) the representative payee appointed by the Social Security Administration for the
797     protected person;
798          (iv) a guardian or conservator acting for the protected person in this state or another
799     jurisdiction;
800          (v) a trustee or custodian of a trust or custodianship of which the protected person is a
801     beneficiary;
802          (vi) the fiduciary appointed for the protected person by the United States Department
803     of Veterans Affairs;
804          (vii) an agent designated under a power of attorney for health care in which the
805     protected person is identified as the principal;
806          (viii) an agent designated under a power of attorney for finances in which the protected
807     person is identified as the principal;
808          (ix) a person known to have routinely assisted the protected person with decision
809     making in the six-month period immediately before the filing of the petition;
810          (x) any proposed conservator, including a person nominated by the protected person if
811     the protected person is 12 years old or older; and
812          (xi) if the protected person is a minor, an adult not otherwise listed with whom the
813     minor resides and each person not otherwise listed that had primary care or custody of the
814     minor for at least 60 days during the two years immediately before the filing of the petition or
815     for at least 730 days during the five years immediately before the filing of the petition; and
816          (e) any other person interested in the protected person's welfare that the court
817     determines.
818          (3) (a) Failure to give notice under Subsection (1) does not preclude the court from
819     appointing a conservator.
820          (b) Notice shall be given to a person described in Subsection (2) even if the person is
821     found after the filing of the petition.
822          (4) After the appointment of a conservator, notice of a hearing on any other petition for
823     an order under this part, together with a copy of the petition, shall be given to:
824          (a) the protected person if the protected person is 12 years old or older and not missing,
825     detained, or unable to return to the United States;
826          (b) the conservator; and
827          (c) any other person the court determines.
828          Section 19. Section 75-5-406 is amended to read:
829          75-5-406. Protective proceedings -- Request for notice -- Interested person.
830          (1) Any interested person [who] that desires to be notified before any order is made in
831     a protective proceeding may file with the [registrar] clerk of the court a request for notice
832     subsequent to payment of any fee required by statute or court rule. [The]
833          (2) In accordance with the Utah Rules of Civil Procedure, Rule 5, the clerk shall [mail
834     a copy of the demand] give notice of the request to the conservator if one has been appointed.
835          (3) A request is not effective unless [it] the request contains a statement showing the
836     interest of the person making [it and his address, or that of his attorney] the request and the
837     person's or the person's attorney's address, and is effective only as to matters occurring after the
838     filing.
839          (4) Any governmental agency paying or planning to pay benefits to the person to be
840     protected is an interested person in protective proceedings.
841          Section 20. Section 75-5-407 is amended to read:
842          75-5-407. Procedure concerning hearing and order on original petition.
843          (1) (a) Upon receipt of a petition for appointment of a conservator or other protective
844     order because of minority, the court shall set a date for the hearing on the matters alleged in the
845     petition.
846          (b) If, at any time in the proceeding, the court determines that the [interests] interest of
847     the minor [are] is or may be inadequately represented, [it] the court may appoint an attorney to
848     represent the minor, giving consideration to the choice of the minor if 14 years [of age] old or
849     older.
850          (c) An attorney appointed by the court to represent a minor has the powers and duties
851     of a guardian ad litem.
852          (2) (a) Upon receipt of a petition for appointment of a conservator or other protective
853     order for reasons other than minority, the court shall set a date for hearing.
854          (b) Unless the person to be protected has already retained counsel, the court may
855     appoint an attorney to represent the person to be protected who then has the powers and duties
856     of a guardian ad litem.
857          (3) The legal representation of the protected person by an attorney shall terminate upon
858     the appointment of a conservator, unless:
859          (a) there are separate guardianship proceedings still pending before the court
860     subsequent to the appointment of a conservator;
861          (b) there is a timely filed appeal of the appointment of the conservator; or
862          (c) upon an express finding of good cause, the court orders otherwise.
863          (4) If the alleged disability is mental illness, mental deficiency, physical illness or
864     disability, advanced age, chronic use of drugs, or chronic intoxication, the court may:
865          (a) [direct] order that the [person to be protected be examined by a physician
866     designated by the court, preferably a physician who is not connected with any institution in
867     which the person is a patient or is detained.] protected person be examined; and
868          (b) appoint one of the following persons to examine the protected person:
869          (i) a licensed physician;
870          (ii) a psychologist;
871          (iii) a social worker; or
872          (iv) an individual who:
873          (A) is qualified to evaluate the person's alleged cognitive and functional abilities and
874     limitations; and
875          (B) will not be advantaged or disadvantaged by a decision to grant the petition or
876     otherwise have a conflict of interest.
877          (5) The court may [send] appoint a visitor to interview the protected person. [to be
878     protected. The visitor may be a guardian ad litem or an officer or employee of the court]
879          [(5)] (6) After hearing, upon finding that a basis for the appointment of a conservator
880     or other protective order has been established, the court shall make an appointment or other
881     appropriate protective order.
882          Section 21. Section 75-5-410.5 is enacted to read:
883          75-5-410.5. Who may be a conservator -- Order of priority.
884          (1) Except as otherwise provided in Subsection (3), the court in appointing a
885     conservator shall consider persons qualified to be a conservator in the following order of
886     priority:
887          (a) a conservator, other than a temporary or emergency conservator, currently acting for
888     the protected person in another jurisdiction;
889          (b) a person nominated as conservator by the protected person, including the protected
890     person's most recent nomination made in a power of attorney for finances if:
891          (i) the protected person was 14 years old or older when the nomination was executed;
892     and
893          (ii) the protected person acted with sufficient mental capacity to make the nomination;
894          (c) an agent appointed by the protected person to manage the protected person's
895     property under a power of attorney for finances;
896          (d) a spouse of the protected person; and
897          (e) a family member or other individual who has shown special care and concern for
898     the protected person.
899          (2) If two or more persons have equal priority under Subsection (1), the court shall
900     select as conservator the person the court considers best qualified.
901          (3) In determining the best qualified person, the court shall consider:
902          (a) the person's relationship with the protected person;
903          (b) the person's skills;
904          (c) the expressed wishes of the protected person;
905          (d) the extent to which the person and the protected person have similar values and
906     preference; and
907          (e) the likelihood the person will be able to perform the duties of a conservator
908     successfully.
909          (4) The court, acting in the best interest of the protected person, may decline to appoint
910     as conservator a person having priority under Subsection (1) and appoint a person having a
911     lower priority or no priority.
912          (5) A person that provides paid services to the protected person, or an individual who
913     is employed by a person that provides paid services to the protected person or is the spouse,
914     parent, or child of an individual who provides or is employed to provide paid services to the
915     protected person may not be appointed as conservator unless:
916          (a) the individual is related to the protected person by blood, marriage, or adoption; or
917          (b) the court finds by clear and convincing evidence that the person is the best qualified
918     person available for appointment and the appointment is in the best interest of the protected
919     person.
920          (6) An owner, operator, or employee of a long-term care institution at which the
921     protected person is receiving care may not be appointed as conservator unless the owner,
922     operator, or employee is related to the protected person by blood, marriage, or adoption.
923          Section 22. Section 75-5-412 is amended to read:
924          75-5-412. Terms and requirements of bonds.
925          (1) The following requirements and provisions apply to any bond required under
926     Section 75-5-411:
927          (a) Unless otherwise provided by the terms of the approved bond, sureties are jointly
928     and severally liable with the conservator and with each other[;].
929          (b) (i) By executing an approved bond of a conservator, the surety consents to the
930     jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining
931     to the fiduciary duties of the conservator and naming the surety as a party defendant.
932          (ii) Notice of the proceeding shall be [delivered] given to the surety [or mailed to him
933     by registered or certified mail at his address as listed with the court where the bond is filed and
934     to his address as then known to the petitioner;] in accordance with Section 75-5-106.
935          (c) On petition of a successor, conservator, or any interested person, a proceeding may
936     be initiated against a surety for breach of the obligation of the bond of the conservator[;].
937          (d) The bond of the conservator is not void after the first recovery but may be
938     proceeded against from time to time until the whole penalty is exhausted.
939          (2) No proceeding may be commenced against the surety on any matter as to which an
940     action or proceeding against the primary obligor is barred by adjudication or limitation under
941     this code.
942          Section 23. Section 75-5-413 is amended to read:
943          75-5-413. Acceptance of appointment -- Consent to jurisdiction.
944          (1) By accepting appointment, a conservator submits personally to the jurisdiction of
945     the court in any proceeding relating to the estate that may be instituted by any interested person.
946          (2) Notice of any proceeding shall be [delivered to the conservator or mailed to him by
947     registered or certified mail at his address as listed in the petition for appointment, or as
948     thereafter reported to the court, and to his address as then known to the petitioner.] given to the
949     conservator in accordance with Sections 75-5-106 and 75-4-405.5.
950          Section 24. Section 75-5-417 is amended to read:
951          75-5-417. General duty of conservator.
952          (1) A conservator shall:
953          (a) act as a fiduciary; and [shall]
954          (b) observe the standards of care as set forth in Section 75-7-902.
955          (2) (a) The conservator shall, for all estates in excess of $50,000, excluding the
956     residence owned by the ward, [send] file a report with a full accounting to the court on an
957     annual basis.
958          (b) For estates less than $50,000, excluding the residence owned by the ward, the
959     conservator shall fill out an informal annual report and [mail] file the report to the court.
960          (c) The report shall include the following:
961          (i) a statement of assets at the beginning and end of the reporting year[,];
962          (ii) income received during the year[,];
963          (iii) disbursements for the support of the ward[,]; and
964          (iv) other expenses incurred by the estate.
965          (d) The court may require additional information for a report filed under Subsections
966     (2)(a) and (b).
967          (e) The forms for both the informal report for estates under $50,000, excluding the
968     residence owned by the ward, and the full accounting report for larger estates shall be approved
969     by the judicial council.
970          (f) This annual report shall be examined and approved by the court.
971          (3) (a) Corporate fiduciaries are not required to fully petition the court, but shall submit
972     their internal report annually to the court.
973          (b) The report shall be examined and approved by the court.
974          (4) (a) The court may impose a fine in an amount not to exceed $5,000, if, after
975     receiving written notice of the failure to file and after a grace period of two months have
976     elapsed, a conservator or corporate fiduciary:
977          (i) makes a substantial misstatement on filings of any required annual reports;
978          (ii) is guilty of gross impropriety in handling the property of the ward; or
979          (iii) willfully fails to file the report required by this section.
980          (b) The court may also order restitution of funds misappropriated from the estate of a
981     ward.
982          (c) The penalty shall be paid by the conservator or corporate fiduciary and may not be
983     paid by the estate.
984          (5) These provisions and penalties governing annual reports do not apply if the
985     conservator is the parent of the ward.
986          Section 25. Section 75-5-428 is amended to read:
987          75-5-428. Claims against protected person -- Enforcement.
988          (1) (a) A conservator [must] shall pay from the estate all just claims against the estate
989     and against the protected person arising before or after the conservatorship upon their
990     presentation and allowance.
991          (b) A claim may be presented by [either of the following methods]:
992          [(a) The claimant may deliver]
993          (i) a claimant delivering or [mail] mailing to the conservator a written statement of the
994     claim indicating [its] the claim's basis, the name and address of the claimant, and the amount
995     claimed[.]; or
996          [(b) The claimant may file]
997          (ii) a claimant files a written statement of the claim, in the form prescribed by rule,
998     with the clerk of the court and [deliver or mail] delivers or mails a copy of the statement to the
999     conservator.
1000          (c) A claim is considered presented on the first to occur of receipt of the written
1001     statement of claim by the conservator, or the filing of the claim with the court.
1002          (2) (a) A presented claim is allowed if [it] the claim is not disallowed by written
1003     statement mailed by the conservator to the claimant within 60 days after [its] the claim's
1004     presentation.
1005          (b) The presentation of a claim tolls any statute of limitation relating to the claim until
1006     30 days after [its] the claim's disallowance.
1007          (3) (a) A claimant whose claim has not been paid may petition the court for
1008     determination of [his] the claimant's claim at any time before [it] the claim is barred by the
1009     applicable statute of limitation, and, upon due proof, procure an order for its allowance and
1010     payment from the estate.
1011          (b) If a proceeding is pending against a protected person at the time of appointment of
1012     a conservator or is initiated against the protected person thereafter, the moving party [must]
1013     shall give notice of the proceeding to the conservator in accordance with Section 75-5-106 if
1014     the outcome is to constitute a claim against the estate.
1015          (4) If it appears that the estate in conservatorship is likely to be exhausted before all
1016     existing claims are paid, preference is to be given to prior claims for the care, maintenance, and
1017     education of the protected person or [his] the protected person's dependents and existing claims
1018     for expenses of administration.
1019          Section 26. Repealer.
1020          This bill repeals:
1021          Section 75-5-308, Visitor in guardianship proceeding.
1022          Section 75-5-309, Notices in guardianship proceedings.
1023          Section 75-5-311, Who may be guardian -- Priorities.
1024          Section 75-5-405, Notice.
1025          Section 75-5-410, Who may be appointed conservator -- Priorities.
1026          Section 27. Effective date.
1027          This bill takes effect on January 1, 2021.