Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 214 (2017GS)

Sponsor

Rep. Miles, K.

Final action

Governor Signed 3/25/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• modifies how letters upon estates jointly may be granted;
• modifies guardian and conservator provisions, including:
• modifying provisions related to limited guardianships;
• addressing emergency guardians;
• modifying powers and duties of guardians;
• addressing reporting requirements of conservators; and
• providing sanctions for not honoring a conservator's or guardian's authority; and
• makes technical changes.

Every vote on this bill

Bill text

PROBATE CODE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kelly B. Miles
Senate Sponsor: 
Lyle W. Hillyard
LONG TITLE
General Description:
This bill amends probate related provisions.
Highlighted Provisions:
This bill:
▸ modifies how letters upon estates jointly may be granted;
▸ modifies guardian and conservator provisions, including:
• modifying provisions related to limited guardianships;
• addressing emergency guardians;
• modifying powers and duties of guardians;
• addressing reporting requirements of conservators; and
• providing sanctions for not honoring a conservator's or guardian's authority; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
75-3-109
, as enacted by Laws of Utah 1977, Chapter 194
75-3-402
, as last amended by Laws of Utah 2013, Chapter 364
75-5-304
, as last amended by Laws of Utah 1988, Chapter 104
75-5-309
, as last amended by Laws of Utah 1988, Chapter 104
75-5-310
, as last amended by Laws of Utah 2014, Chapter 142
75-5-312
, as last amended by Laws of Utah 2016, Chapter 293
75-5-418
, as last amended by Laws of Utah 2012, Chapter 274
75-5-421
, as enacted by Laws of Utah 1975, Chapter 150
75-5-424
, as last amended by Laws of Utah 2014, Chapter 142
75-5-425
, as last amended by Laws of Utah 2012, Chapter 274
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
75-3-109
 is amended to read:
75-3-109.
Letters upon several estates jointly.
(1) Upon 
application or
 petition by any person interested in two or more estates, 
the
registrar may, in an informal proceeding without a hearing, or
 the court may, 
in a formal
proceeding
 after notice and hearing, grant letters upon these estates jointly if administration has
not commenced with respect to [
any such
] 
the
 estate and if:
(a) [
All
] 
all
 or any part of the estate of one decedent has descended from another
decedent; or
(b) [
Two
] 
two
 or more decedents held any property during their lifetimes as
tenants-in-common and if the persons entitled under the wills of these decedents or under the
law of intestate succession to receive the estates of these decedents are the same.
(2) If letters are granted upon two or more estates jointly under this section, these
estates shall be administered the same as if they were but one estate except that claims may be
enforced only against the estate to which they relate.
Section 2. Section 
75-3-402
 is amended to read:
75-3-402.
Formal testacy or appointment proceedings -- Petition -- Contents.
(1) Petitions for formal probate of a will, or for adjudication of intestacy with or
without request for appointment of a personal representative, shall be directed to the court,
request a judicial order after notice and hearing, and contain further statements as indicated in
this section. A petition for formal probate of a will:
(a) requests an order as to the testacy of the decedent in relation to a particular
instrument which may or may not have been informally probated and determining the heirs;
(b) contains the statements required for informal applications as stated in Subsection
75-3-301
(2) and the statements required by Subsections 
75-3-301
(3)(b) and (c), and, if the
petition requests appointment of a personal representative, the statements required by
Subsection 
75-3-301
(4); and
(c) states whether the original of the last will of the decedent is in the possession of the
court, accompanies the petition, or was presented to the court for electronic storage or
electronic filing and is [
not
] in the possession of the petitioner or the petitioner's attorney.
(2) If the original will is not in the possession of the court, has not been presented to
the court for electronic storage or electronic filing, does not accompany the petition, and no
authenticated copy of a will probated in another jurisdiction accompanies the petition, the
petition also shall state the contents of the will and indicate that it is lost, destroyed, or
otherwise unavailable.
(3) A petition for adjudication of intestacy and appointment of an administrator in
intestacy shall request a judicial finding and order that the decedent left no will and,
determining the heirs, contain the statements required by Subsections 
75-3-301
(2) and
75-3-301
(5) and indicate whether supervised administration is sought. A petition may request
an order determining intestacy and heirs without requesting the appointment of an
administrator, in which case, the statements required by Subsection 
75-3-301
(5)(b) may be
omitted.
Section 3. Section 
75-5-304
 is amended to read:
75-5-304.
Findings -- Limited guardianship preferred -- Order of appointment.
(1) The court may appoint a guardian as requested if it is satisfied that the person for
whom a guardian is sought is incapacitated and that the appointment is necessary or desirable
as a means of providing continuing care and supervision of the incapacitated person.
(2) 
(a)
 The court shall prefer a limited guardianship and may only grant a full
guardianship if no other alternative exists. If the court does not grant a limited guardianship, a
specific finding shall be made that nothing less than a full guardianship is adequate.
(b) An order of appointment of a limited guardianship shall state the limitations of the
guardianship. Letters of guardianship for a limited guardianship shall state the limitations of
the guardianship unless the court determines for good cause shown that a limitation should not
be listed in the letters.
(3) A guardian appointed by will or written instrument, under Section 
75-5-301
, whose
appointment has not been prevented or nullified under Subsection 
75-5-301
(4), has priority
over any guardian who may be appointed by the court, but the court may proceed with an
appointment upon a finding that the testamentary or instrumental guardian has failed to accept
the appointment within 30 days after notice of the guardianship proceeding. Alternatively, the
court may dismiss the proceeding or enter any other appropriate order.
Section 4. Section 
75-5-309
 is amended to read:
75-5-309.
Notices in guardianship proceedings.
(1) In a proceeding for the appointment or removal of a guardian of an incapacitated
person other than the appointment of [
a temporary
] 
an emergency
 guardian or temporary
suspension of a guardian, notice of hearing shall be given to each of the following:
(a) the ward or the person alleged to be incapacitated and spouse, parents, and adult
children of the ward or person;
(b) any person who is serving as guardian or conservator or who has care and custody
of the ward or person;
(c) in case no other person is notified under Subsection (1)(a), at least one of the
closest adult relatives, if any can be found; and
(d) any guardian appointed by the will of the parent who died later or spouse of the
incapacitated person.
(2) The notice shall be in plain language and large type and the form shall have the
final approval of the Judicial Council. The notice shall indicate the time and place of the
hearing, the possible adverse consequences to the person receiving notice of rights, a list of
rights, including the person's own or a court appointed counsel, and a copy of the petition.
(3) Notice shall be served personally on the alleged incapacitated person and the
person's spouse and parents if they can be found within the state. Notice to the spouse and
parents, if they cannot be found within the state, and to all other persons except the alleged
incapacitated person shall be given as provided in Section 
75-1-401
. Waiver of notice by the
person alleged to be incapacitated is not effective unless the person attends the hearing or the
person's waiver of notice is confirmed in an interview with the visitor appointed pursuant to
Section 
75-5-303
.
Section 5. Section 
75-5-310
 is amended to read:
75-5-310.
Emergency guardians.
(1) If an incapacitated person has no guardian and an emergency exists or if an
appointed guardian is not effectively performing the guardian's duties and the court further
finds that the welfare of the incapacitated person requires immediate action, it may, without
notice, appoint an emergency guardian for the person for a specified period not to exceed 30
days pending notice and hearing.
(2) [
The
] 
Upon request by an interested person after the appointment of an emergency
guardian, the
 court shall[
, in all cases in which an emergency guardian is appointed,
] hold a
hearing within 14 days pursuant to Section 
75-5-303
.
Section 6. Section 
75-5-312
 is amended to read:
75-5-312.
General powers and duties of guardian -- Penalties.
(1) A guardian of an incapacitated person has only the powers, rights, and duties
respecting the ward granted in the order of appointment under Section 
75-5-304
.
(2) Except as provided in Subsection (4), a guardian has the same powers, rights, and
duties respecting the ward that a parent has respecting the parent's unemancipated minor child.
(3) In particular, and without qualifying the foregoing, a guardian has the following
powers and duties, except as modified by order of the court:
(a) To the extent that it is consistent with the terms of any order by a court of
competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled
to custody of the person of the ward and may establish the ward's place of abode within or
without this state.
(b) If entitled to custody of the ward the guardian shall provide for the care, comfort,
and maintenance of the ward and, whenever appropriate, arrange for the ward's training and
education. Without regard to custodial rights of the ward's person, the guardian shall take
reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and
commence protective proceedings if other property of the ward is in need of protection.
(c) A guardian may give any consents or approvals that may be necessary to enable the
ward to receive medical or other professional care, counsel, treatment, or service.
(d) A guardian may not unreasonably restrict visitation with the ward by family,
relatives, or friends.
(e) If no conservator for the estate of the ward has been appointed, the guardian may:
(i) institute proceedings to compel any person under a duty to support the ward or to
pay sums for the welfare of the ward to perform that duty;
(ii) compel the production of the ward's estate documents, including the ward's will,
trust, power of attorney, and any advance health care directive; and
(iii) receive money and tangible property deliverable to the ward and apply the money
and property for support, care, and education of the ward; but the guardian may not use funds
from the ward's estate for room and board which the guardian, the guardian's spouse, parent, or
child have furnished the ward unless a charge for the service is approved by order of the court
made upon notice to at least one adult relative in the nearest degree of kinship to the ward in
which there is an adult. The guardian shall exercise care to conserve any excess for the ward's
needs.
(f) (i) A guardian is required to report the condition of the ward and of the estate which
has been subject to the guardian's possession or control, as required by the court or court rule.
(ii) A guardian is required to immediately notify all interested persons if the guardian
reasonably believes that the ward's death is likely to occur within the next 30 days, based on:
(A) the guardian's own observations; or
(B) information from the ward's physician or other medical care providers.
(iii) A guardian is required to immediately notify all interested persons of the ward's
death.
(iv) Unless emergency conditions exist, a guardian is required to file with the court a
notice of the guardian's intent to move the ward and to serve the notice on all interested persons
at least 10 days before the move. The guardian shall take reasonable steps to notify all
interested persons and to file the notice with the court as soon as practicable following the
earlier of the move or the date when the guardian's intention to move the ward is made known
to the ward, the ward's care giver, or any other third party.
(v) [
The
] 
(A) If no conservator for the estate of the ward has been appointed, the
guardian shall, for all estates in excess of $50,000, excluding the residence owned by the ward,
send a report with a full accounting to the court on an annual basis.
(B)
 For estates less than $50,000, excluding the residence owned by the ward, the
guardian shall fill out an informal annual report and mail the report to the court.
(C)
 [
The
] 
A
 report 
under Subsection (3)(f)(v)(A) or (B)
 shall include [
the following:
] a
statement of assets at the beginning and end of the reporting year, income received during the
year, disbursements for the support of the ward, and other expenses incurred by the estate. The
guardian shall also report the physical conditions of the ward, the place of residence, and a list
of others living in the same household. The court may require additional information.
(D)
 The forms for both the informal report for estates under $50,000, excluding the
residence owned by the ward, and the full accounting report for larger estates shall be approved
by the Judicial Council. [
This
]
(E) An
 annual report shall be examined and approved by the court.
(F)
 If the ward's income is limited to a federal or state program requiring an annual
accounting report, a copy of that report may be submitted to the court in lieu of the required
annual report.
(vi) Corporate fiduciaries are not required to petition the court, but shall submit their
internal report annually to the court. The report shall be examined and approved by the court.
(vii) The guardian shall also render an annual accounting of the status of the person to
the court which shall be included in the petition or the informal annual report as required under
Subsection (3)(f). If a fee is paid for an accounting of an estate, no fee shall be charged for an
accounting of the status of a person.
(viii) If a guardian:
(A) makes a substantial misstatement on filings of annual reports;
(B) is guilty of gross impropriety in handling the property of the ward; or
(C) willfully fails to file the report required by this subsection, after receiving written
notice from the court of the failure to file and after a grace period of two months has elapsed,
the court may impose a penalty in an amount not to exceed $5,000. The court may also order
restitution of funds misappropriated from the estate of a ward. The penalty shall be paid by the
guardian and may not be paid by the estate.
(ix) [
These
] 
The
 provisions and penalties 
in this Subsection (3)(f)
 governing annual
reports do not apply if the guardian 
or a coguardian
 is the parent of the ward.
(x) For the purposes of Subsections (3)(f)(i), (ii), (iii), and (iv), "interested persons"
means those persons required to receive notice in guardianship proceedings as set forth in
Section 
75-5-309
.
(g) If a conservator has been appointed[
,
]
:
(i)
 all of the ward's estate received by the guardian in excess of those funds expended
to meet current expenses for support, care, and education of the ward shall be paid to the
conservator for management as provided in this code; and
(ii)
 the guardian shall account to the conservator for funds expended.
(4) (a) A court may, in the order of appointment, place specific limitations on the
guardian's power.
(b) A guardian may not prohibit or place restrictions on association with a relative or
qualified acquaintance of an adult ward, unless permitted by court order under Section
75-5-312.5
.
(c) A guardian is not liable to a third person for acts of the guardian's ward solely by
reason of the relationship described in Subsection (2).
(5) Any guardian of one for whom a conservator also has been appointed shall control
the custody and care of the ward and is entitled to receive reasonable sums for services and for
room and board furnished to the ward as agreed upon between the guardian and the
conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian
may request the conservator to expend the ward's estate by payment to third persons or
institutions for the ward's care and maintenance.
(6) A person who refuses to accept the authority of a guardian with authority over
financial decisions to transact business with the assets of the protected person after receiving a
certified copy of letters of guardianship is liable for costs, expenses, attorney fees, and damages
if the court determines that the person did not act in good faith in refusing to accept the
authority of the guardian.
Section 7. Section 
75-5-418
 is amended to read:
75-5-418.
Inventory and records.
(1) Within 90 days after appointment of a conservator, the conservator shall prepare
and file with the appointing court a complete inventory of the estate of the protected person
together with an oath or affirmation that it is complete and accurate so far as the conservator is
informed. The estate of the protected person does not include the assets of a trust.
(2) The conservator shall provide a copy of the inventory to the protected person if the
person:
(a) can be located;
(b) has attained the age of 14 years; and
(c) has sufficient mental capacity to understand these matters, and to any parent or
guardian with whom the protected person resides.
(3) The conservator shall keep suitable [
administrative
] 
financial
 records and produce
them upon the request of any interested person.
Section 8. Section 
75-5-421
 is amended to read:
75-5-421.
Recording of conservator's letters.
(1) (a)
 Letters of conservatorship are evidence of transfer of [
all
] 
the
 assets of a
protected person to the conservator.
(b)
 An order terminating a conservatorship is evidence of transfer of [
all
] 
the
 assets of
the estate from the conservator to the protected person or [
his
] 
the protected person's
successors.
(c)
 Subject to the requirements of general statutes governing the filing or recordation of
documents of title to land or other property, letters of conservatorship and orders terminating
conservatorships may be filed or recorded to give record notice of title as between the
conservator and the protected person.
(2) A person who refuses to accept the authority of a conservator to transact business
with the assets of the protected person after receiving a certified copy of letters of
conservatorship is liable for costs, expenses, attorney fees, and damages if the court determines
that the person did not act in good faith in refusing to accept the authority of the conservator.
Section 9. Section 
75-5-424
 is amended to read:
75-5-424.
Powers of conservator in administration.
(1) A conservator has all of the powers conferred in this chapter and any additional
powers conferred by law on trustees in this state. In addition, a conservator of the estate of an
unmarried minor as to whom no one has parental rights, has the duties and powers of a
guardian of a minor described in Section 
75-5-209
 until the minor attains majority or marries,
but the parental rights so conferred on a conservator do not preclude appointment of a guardian
as provided by Part 2, Guardians of Minors.
(2) 
(a)
 A conservator has the power to compel the production of the protected person's
estate documents, including the protected person's will, trust, power of attorney, and any
advance health care directives.
(b) If a guardian is also appointed for the ward, the conservator shall share with the
guardian the estate documents the conservator receives.
(3) A conservator has power without court authorization or confirmation to invest and
reinvest funds of the estate as would a trustee.
(4) A conservator, acting reasonably in efforts to accomplish the purpose for which the
conservator was appointed, may act without court authorization or confirmation, to:
(a) collect, hold, and retain assets of the estate, including land in another state, until, in
[
his
] 
the conservator's
 judgment, disposition of the assets should be made, and the assets may
be retained even though they include an asset in which [
he
] 
the conservator
 is personally
interested;
(b) receive additions to the estate;
(c) continue or participate in the operation of any business or other enterprise;
(d) acquire an undivided interest in an estate asset in which the conservator, in any
fiduciary capacity, holds an undivided interest;
(e) invest and reinvest estate assets in accordance with Subsection [
(2)
] 
(3)
;
(f) deposit estate funds in a bank including a bank operated by the conservator;
(g) acquire or dispose of an estate asset, including land in another state, for cash or on
credit, at public or private sale; and to manage, develop, improve, exchange, partition, change
the character of, or abandon an estate asset;
(h) make ordinary or extraordinary repairs or alterations in buildings or other
structures, demolish any improvements, and raze existing or erect new party walls or buildings;
(i) subdivide, develop, or dedicate land to public use; make or obtain the vacation of
plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving
or receiving considerations; and dedicate easements to public use without consideration;
(j) enter for any purpose into a lease as lessor or lessee with or without option to
purchase or renew for a term within or extending beyond the term of the conservatorship;
(k) enter into a lease or arrangement for exploration and removal of minerals or other
natural resources or enter into a pooling or unitization agreement;
(l) grant an option involving disposition of an estate asset or take an option for the
acquisition of any asset;
(m) vote a security, in person or by general or limited proxy;
(n) pay calls, assessments, and any other sums chargeable or accruing against or on
account of securities;
(o) 
(i)
 sell or exercise stock subscription or conversion rights; 
and
(ii)
 consent, directly or through a committee or other agent, to the reorganization,
consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(p) hold a security in the name of a nominee or in other form without disclosure of the
conservatorship so that title to the security may pass by delivery, but the conservator is liable
for any act of the nominee in connection with the stock so held;
(q) insure the assets of the estate against damage or loss and the conservator against
liability with respect to third persons;
(r) 
(i)
 borrow money to be repaid from estate assets or otherwise; and
(ii)
 advance money for the protection of the estate or the protected person, and for all
expenses, losses, and liabilities sustained in the administration of the estate or because of the
holding or ownership of any estate assets, and the conservator has a lien on the estate as against
the protected person for advances so made;
(s) 
(i)
 pay or contest any claim;
(ii)
 settle a claim by or against the estate or the protected person by compromise,
arbitration, or otherwise; and
(iii)
 release, in whole or in part, any claim belonging to the estate to the extent that the
claim is uncollectible;
(t) pay taxes, assessments, compensation of the conservator, and other expenses
incurred in the collection, care, administration, and protection of the estate;
(u) allocate items of income or expense to either estate income or principal, as
provided by law, including creation of reserves out of income for depreciation, obsolescence,
or amortization, or for depletion in mineral or timber properties;
(v) pay any sum distributable to a protected person or dependent without liability to the
conservator, by paying the sum to the distributee or by paying the sum for the use of the
distributee either to the distributee's guardian, or if none, to a relative or other person with
custody of the person;
(w) 
(i)
 employ persons, including attorneys, auditors, investment advisors, or agents,
even though they are associated with the conservator, to advise or assist in the performance of
administrative duties;
(ii)
 act upon [
their
] 
a
 recommendation 
made by a person listed in Subsection (4)(w)(i)
without independent investigation; and
(iii)
 instead of acting personally, employ one or more agents to perform any act of
administration, whether or not discretionary;
(x) prosecute or defend actions, claims, or proceedings in any jurisdiction for the
protection of estate assets and of the conservator in the performance of the conservator's duties;
(y) act as a qualified beneficiary of any trust in which the protected person is a
qualified beneficiary; and
(z) execute and deliver [
all
] 
the
 instruments [
which
] 
that
 will accomplish or facilitate
the exercise of the powers vested in the conservator.
Section 10. Section 
75-5-425
 is amended to read:
75-5-425.
Distributive duties and powers of conservator.
(1) A conservator may expend or distribute income or principal of the estate without
court authorization or confirmation for the support, education, care, or benefit of the protected
person and [
his
] 
the protected person's
 dependents in accordance with the following principles:
(a) The conservator is to consider recommendations relating to the appropriate standard
of support, education, and benefit for the protected person made by a parent or guardian, if any.
[
He
] 
A conservator
 may not be surcharged for sums paid to persons or organizations actually
furnishing support, education, or care to the protected person pursuant to the recommendations
of a parent or guardian of the protected person unless [
he
] 
the conservator
 knows that the
parent or guardian is deriving personal financial benefit therefrom, including relief from any
personal duty of support, or unless the recommendations are clearly not in the best interests of
the protected person.
(b) The conservator is to expend or distribute sums reasonably necessary for the
support, education, care or benefit of the protected person with due regard to:
(i) the size of the estate, the probable duration of the conservatorship and the likelihood
that the protected person, at some future time, may be fully able to manage the protected
person's affairs and the estate which has been conserved for the protected person;
(ii) the accustomed standard of living of the protected person and members of the
protected person's household; and
(iii) other funds or sources used for the support of the protected person.
(c) The conservator may expend funds of the estate for the support of persons legally
dependent on the protected person and others who are members of the protected person's
household who are unable to support themselves and who are in need of support.
(d) Funds expended under this Subsection (1) may be paid by the conservator to any
person, including the protected person to reimburse for expenditures which the conservator
might have made, or in advance for services to be rendered to the protected person when it is
reasonable to expect that they will be performed and where advance payments are customary or
reasonably necessary under the circumstances.
(2) If the estate is ample to provide for the purposes implicit in the distributions
authorized by Subsection (1), a conservator for a protected person other than a minor has power
to make gifts to charity and other objects as the protected person might have been expected to
make, in amounts which do not exceed in total for any year 20% of the income from the estate.
(3) When a person who is a minor and who has not been adjudged to have a disability
under Subsection 
75-5-401
(2)(a) attains the age of majority, the person's conservator, after
meeting all prior claims and expenses of administration, shall pay over and distribute all funds
and properties to the former protected person as soon as possible.
(4) When the conservator is satisfied that a protected person's disability[
(
]
,
 other than
minority[
)
]
,
 has ceased, the conservator, after meeting all prior claims and expenses of
administration, shall pay over and distribute all funds and properties to the former protected
person as soon as possible.
(5) If a protected person dies, the conservator:
(a) shall:
(i) deliver to the court for safekeeping any will of the deceased protected person that
may have come into the conservator's possession;
(ii) inform the [
executor
] 
personal representative
 or a beneficiary named in the will that
the conservator has done so; and
(iii) retain the estate for delivery to a duly appointed personal representative of the
decedent or other persons entitled to it;
(b) may continue to pay the obligations lawfully due against the estate and to protect
the estate from waste, injury, or damages that might reasonably be foreseeable; and
(c) may apply to exercise the powers and duties of a personal representative so that the
conservator may proceed to administer and distribute the decedent's estate without additional or
further appointment, provided that at least 40 days from the death of the protected person no
other person has been appointed personal representative and no application or petition for
appointment is before the court.
(6) Upon application for an order granting the powers of a personal representative to a
conservator as provided in Subsection (5)(c) and after notice as provided in Section 
75-3-310
,
the court may order the conferral of the power upon determining that there is no objection and
endorse the letters of the conservator to note that the formerly protected person is deceased and
that the conservator has acquired all of the powers and duties of a personal representative. The
making and entry of an order under this section shall have the effect of an order of appointment
of a personal representative as provided in Section 
75-3-308
 and Chapter 3, Part 6, Personal
Representative - Appointment, Control, and Termination of Authority, Part 7, Duties and
Powers of Personal Representatives, Part 8, Creditors' Claims, Part 9, Special Provisions
Relating to Distribution, and Part 10, Closing Estates, except that the estate in the name of the
conservator, after administration, may be distributed to the decedent's successors without prior
retransfer to the conservator as personal representative.