Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 155 (2022GS)

Sponsor

Sen. Weiler, T.

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• amends the duties of the Office of Public Guardian;
• addresses a guardian's authority to make and assist with a ward's health care decisions;
• amends provisions related to the termination, removal, or resignation of a guardian of an incapacitated person;
• amends the duties and responsibilities of a guardian of an incapacitated person;
• amends provisions relating to a proceeding addressing a guardian restricting or prohibiting a ward's associations; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

GUARDIANSHIP AND CONSERVATORSHIP AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Todd D. Weiler
House Sponsor: 
Nelson T. Abbott
LONG TITLE
General Description:
This bill amends provisions related to guardianships and conservatorships.
Highlighted Provisions:
This bill:
▸ amends the duties of the Office of Public Guardian;
▸ addresses a guardian's authority to make and assist with a ward's health care
decisions;
▸ amends provisions related to the termination, removal, or resignation of a guardian
of an incapacitated person;
▸ amends the duties and responsibilities of a guardian of an incapacitated person;
▸ amends provisions relating to a proceeding addressing a guardian restricting or
prohibiting a ward's associations; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
62A-14-105
, as last amended by Laws of Utah 2009, Chapter 75
75-5-304
, as last amended by Laws of Utah 2017, Chapter 403
75-5-312.5
, as last amended by Laws of Utah 2018, Chapter 244
REPEALS AND REENACTS:
75-5-306
, as last amended by Laws of Utah 1977, Chapter 194
75-5-307
, as last amended by Laws of Utah 2012, Chapter 274
75-5-312
, as last amended by Laws of Utah 2018, Chapters 244 and 294
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
62A-14-105
 is amended to read:
62A-14-105.
Powers and duties of the office.
(1) The office shall:
(a) [
before January 1, 2000,
] develop and operate a statewide program to:
(i) educate the public about the role and function of guardians and conservators; [
and
]
(ii) educate guardians and conservators on:
(A) the duties of a guardian and a conservator; and
(B) standards set by the National Guardianship Association for guardians and
conservators; and
[
(ii)
] 
(iii)
 serve as a guardian, conservator, or both for a ward upon appointment by a
court when no other person is able and willing to do so and the office petitioned for or agreed
in advance to the appointment;
(b) possess and exercise all the powers and duties specifically given to the office by
virtue of being appointed as guardian or conservator of a ward, including the power to access a
ward's records;
(c) review and monitor the personal and, if appropriate, financial status of each ward
for whom the office has been appointed to serve as guardian or conservator;
(d) train and monitor each employee and volunteer, and monitor each contract provider
to whom the office has delegated a responsibility for a ward;
(e) retain all court-delegated powers and duties for a ward;
(f) report on the personal and financial status of a ward as required by a court in
accordance with Title 75, Chapter 5, Protection of Persons Under Disability and Their
Property;
(g) handle a ward's funds in accordance with the department's trust account system;
(h) request that the department's audit plan, established pursuant to Section 
63I-5-401
,
include the requirement of an annual audit of all funds and property held by the office on behalf
of wards;
(i) maintain accurate records concerning each ward, the ward's property, and office
services provided to the ward;
(j) make reasonable and continuous efforts to find a family member, friend, or other
person to serve as a ward's guardian or conservator;
(k) after termination as guardian or conservator, distribute a ward's property in
accordance with Title 75, Chapter 5, Protection of Persons Under Disability and Their
Property; 
and
(l) submit recommendations for changes in state law and funding to the governor and
the Legislature and report to the governor and Legislature, upon request[
; and
]
.
[
(m) establish, implement, and enforce rules.
]
(2) The office may:
(a) petition a court pursuant to Title 75, Chapter 5, Protection of Persons Under
Disability and Their Property, to be appointed an incapacitated person's guardian, conservator,
or both after conducting a prepetition assessment under Section 
62A-14-107
;
(b) develop and operate a statewide program to recruit, train, supervise, and monitor
volunteers to assist the office in providing guardian and conservator services;
(c) delegate one or more responsibilities for a ward to an employee, volunteer, or
contract provider, except as provided in Subsection 
62A-14-107
(1);
(d) solicit and receive private donations to provide guardian and conservator services
under this chapter; and
(e) adopt rules, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, to:
(i) effectuate policy; and
(ii) carry out the office's role as guardian and conservator of wards as provided in this
chapter.
Section 2. 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
] 
the court
 is satisfied that [
the
]
:
(a) the
 person for whom a guardian is sought is incapacitated [
and that the
]
; and
(b) the
 appointment is necessary or desirable as a means of providing continuing care
and supervision of the incapacitated person.
(2) (a) 
(i)
 The court shall prefer a limited guardianship and may only grant a full
guardianship if no other alternative exists.
(ii)
 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) 
(i)
 An order of appointment of a limited guardianship shall state the limitations of
the guardianship.
(ii)
 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
] 
(a) Except as provided in Subsection (3)(b), 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
]
.
(b) 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
]
, the court may:
(i)
 dismiss the proceeding [
or
]
; or
(ii)
 enter any other appropriate order.
(4) If the court grants a guardian with the power to make or assist with health care
decisions for an incapacitated person, the court shall include in the order of appointment the
name of any interested person for whom the guardian must notify of any significant health care
or treatment received by the incapacitated person.
Section 3. Section 
75-5-306
 is repealed and reenacted to read:
 75-5-306.
Termination of guardianship for incapacitated person -- Termination of
authority and responsibility of guardian.
(1) (a) Except for the time period described in Subsection (1)(b), the ward or any
person interested in the ward's welfare may petition for an order:
(i) that the ward is no longer incapacitated; and
(ii) for removal or resignation of the guardian in accordance with Section 
75-5-307
.
(b) In an order adjudicating capacity, a court may specify a minimum period of time,
not exceeding one year, during which no petition for an adjudication that the ward is no longer
incapacitated can be filed without leave from the court.
(c) A request for the order described in Subsection (1) may be made by informal letter
to the court.
(d) Any person who knowingly interferes with a request described in Subsection (1)(a)
may be sanctioned by the court.
(2) The authority and responsibility of a guardian for an incapacitated person
terminates upon:
(a) the death of the guardian or the ward;
(b) the determination that the guardian is incapacitated; or
(c) the removal or resignation of the guardian in accordance with Section 
75-5-307
.
(3) Resignation of a guardian does not terminate the guardianship until the resignation
has been approved by the court.
(4) Testamentary appointment of a guardian under an informally probated will
terminates if the will is later denied probate in a formal proceeding.
(5) Termination of a guardian does not affect the guardian's liability for the guardian's
prior acts or the guardian's obligation to account for funds and assets of the guardian's ward.
(6) On a petition to order that a ward's incapacity is terminated, the court shall follow
the same procedures to safeguard the rights of the ward for a petition for appointment of a
guardian under Section 
75-5-303
.
Section 4. Section 
75-5-307
 is repealed and reenacted to read:
 75-5-307.
Removal or resignation of guardian.
(1) On a petition of resignation from a guardian, the court may:
(a) accept the guardian's resignation; or
(b) make any other order that is appropriate.
(2) On a petition of removal of a guardian from the ward or any person interested in the
ward's welfare, the court may remove a guardian if:
(a) the guardian obtained the appointment by fraud, deceit, or gross misrepresentation;
(b) the guardian fails to perform the guardian's duties described in Section 
75-5-312
;
(c) the guardian is unable to perform the guardian's duties, described in Section
75-5-312
, due to incapacity or illness;
(d) the guardian fails to use reasonable care and diligence in the management of the
ward's estate;
(e) the guardian is found by the court to have filed a petition frivolously or in bad faith
under Section 
75-5-312.5
;
(f) the guardian's interests have become adverse to the faithful performance of the
guardian's duties and there is a risk that the guardian will fail to faithfully perform the
guardian's duties; or
(g) removal of the guardian would be in the best interest of the ward.
(3) If the court removes a guardian under Subsection (2), the court may:
(a) appoint a successor guardian; or
(b) make any other order that is appropriate.
(4) On a petition of resignation or removal of a guardian, the court shall follow the
same procedures to safeguard the rights of the ward for a petition for appointment of a guardian
under Section 
75-5-303
.
(5) The court is not required to appoint an attorney to represent the ward if the case is
uncontested and the ward's incapacity is not at issue.
Section 5. Section 
75-5-312
 is repealed and reenacted to read:
 75-5-312.
General powers and duties of guardian -- Penalties.
(1) (a) A guardian of an incapacitated person shall diligently and in good faith carry out
the specific duties, powers, and rights that the guardian is granted:
(i) in an order of appointment by a court under Section 
75-5-304
; and
(ii) under this section.
(b) A court may, in the order of appointment, place specific limitations on the
guardian's power, duties, and rights.
(c) (i) Except as provided in this Subsection (1), a guardian has the same powers,
rights, and duties respecting the ward that a parent has respecting the parent's unemancipated
minor.
(ii) 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 (1)(c)(i).
(d) In carrying out duties, powers, and rights that a guardian is granted, the guardian
shall encourage the ward, to the extent practicable, to participate in decisions, exercise
self-determination, act on the ward's own behalf, and develop or regain the capacity to manage
the ward's personal affairs.
(e) To the extent known, a guardian, in making decisions about the ward, shall consider
the expressed desires, preferences, and personal values of the ward.
(2) Except as modified by an order of appointment under Section 
75-5-304
, a guardian
has the following duties and powers:
(a) to the extent that it is consistent with the terms of any order by a court relating to
detention or commitment of the ward, a guardian is entitled to custody of the person of the
ward and may establish the ward's place of abode within, or outside of, this state;
(b) if a guardian is 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;
(c) without regard to custodial rights of the ward's person, a 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;
(d) a guardian may give the consent or approval that may be necessary to enable the
ward to receive medical or other professional care, counsel, treatment, or service;
(e) a guardian is required to notify any interested person named in the order of
appointment under Subsection 
75-5-304
(4) of any significant health care or treatment received
by the ward;
(f) a guardian is required to immediately notify persons who request notification and
are not restricted in associating with the ward in accordance with Section 
75-5-312.5
 of:
(i) the ward's admission to a hospital for three or more days or to a hospice program;
(ii) the ward's death; or
(iii) the arrangements for the disposition of the ward's remains;
(g) 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 10 days, based on:
(i) the guardian's own observations; or
(ii) information from the ward's physician or other medical care providers;
(h) a guardian is required to:
(i) unless emergency conditions exist:
(A) file with the court a notice of the guardian's intent to move the ward; and
(B) serve the notice on all interested persons at least 10 days before the day on which
the guardian moves the ward; or
(ii) take reasonable steps to:
(A) notify all interested persons of the guardian's intent to move the ward; and
(B) file the notice of the move 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;
(i) except as otherwise provided by Section 
75-5-312.5
, a guardian may not restrict or
prohibit a ward's association, as defined in Section 
75-5-312.5
, with family, relatives, or
friends;
(j) if no conservator for the estate of the ward has been appointed, a 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, except that:
(A) the guardian may not use funds from the ward's estate for room and board that the
guardian or 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; and
(B) the guardian shall exercise care to conserve any excess for the ward's needs;
(k) if no conservator for the estate of the ward has been appointed:
(i) for all estates in excess of $50,000 excluding the residence owned by the ward, a
guardian shall send a report with a full accounting to the court on an annual basis; or
(ii) for estates less than $50,000 excluding the residence owned by the ward, a guardian
shall fill out an informal annual report and mail the report to the court;
(l) a guardian shall provide an annual accounting of the status of the ward, including a
report of the physical and mental condition of the ward, the ward's estate that has been subject
to the guardian's possession, the ward's place of residence and others living in the same
household, to the court in the petition or the annual report as required under Subsection (2)(k);
and
(m) a guardian shall comply with standards set by the National Guardianship
Association for guardians to the extent that the standards are applicable to the guardian.
(3) For the purposes of Subsections (2)(f), (g), and (h), an interested person is a person
required to receive notice in guardianship proceedings as described in Section 
75-5-309
.
(4) (a) An accounting report under Subsection (2)(k) shall include 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.
(b) The court may require additional information in an accounting report under
Subsection (2)(k).
(c) The Judicial Council shall approve forms for the accounting reports described in
Subsection (2)(k).
(d) An annual accounting report under Subsection (2)(k) shall be examined and
approved by the court.
(e) 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 accounting report under Subsection (2)(k).
(f) (i) A corporate fiduciary is not required to petition the court, but shall submit the
corporate fiduciary's internal report annually to the court.
(ii) The report under Subsection (4)(f)(i) shall be examined and approved by the court.
(g) If a fee is paid for an accounting of an estate, a fee may not be charged for an
accounting of the status of a ward under Subsection (2)(l).
(5) If a conservator has been appointed for a ward:
(a) 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 chapter; and
(b) the guardian shall account to the conservator for funds expended.
(6) (a) Any guardian of a person for whom a conservator has been appointed:
(i) shall control the custody and care of the ward; and
(ii) 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.
(b) 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.
(7) (a) The court may impose a penalty in an amount not to exceed $5,000 if a
guardian:
(i) makes a substantial misstatement on filings of annual reports;
(ii) is guilty of gross impropriety in handling the property of the ward; or
(iii) willfully fails to file the report required by this section after receiving written
notice from the court of the failure to file and after a grace period of two months has elapsed.
(b) The court may order restitution of funds misappropriated from the estate of a ward.
(c) A penalty under this Subsection (7) shall be paid by the guardian and may not be
paid by the ward or the ward's estate.
(d) The provisions and penalties in Subsection (2)(k) or (l) governing annual reports do
not apply if the guardian or a coguardian is the parent of the ward.
(8) A person who refuses to accept the authority of a guardian with authority over
financial decisions to transact business with the assets of the ward 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 6. Section 
75-5-312.5
 is amended to read:
75-5-312.5.
Association between an adult ward and a relative or acquaintance of
the adult ward.
(1) As used in this section:
(a) "Associate" or "association" means:
(i) visitation of an adult ward by a relative or qualified acquaintance; or
(ii) communication between an adult ward and a relative or qualified acquaintance in
any form, including by telephone, mail, or electronic communication.
(b) "Qualified acquaintance" means an individual, other than a relative of the adult
ward, who:
(i) has established a significant, mutual friendship with the adult ward; or
(ii) is clergy in the adult ward's religion or religious congregation.
(c) "Relative" means an adult ward's spouse, parent, step-parent, child, step-child,
sibling, step-sibling, half-sibling, grandparent, grandchild, uncle, aunt, nephew, niece, or first
cousin.
(2) (a) Except as otherwise provided by court order, a guardian may not restrict or
prohibit the right of an adult ward to associate with a relative or qualified acquaintance of the
adult ward.
(b) If an adult ward is unable to express consent to visitation by a relative or a qualified
acquaintance of the adult ward, the consent of the adult ward is presumed based on evidence of
a prior relationship between the adult ward and the relative or qualified acquaintance of the
adult ward.
(c) A guardian may not permit a relative or qualified acquaintance of an adult ward to
associate with the adult ward:
(i) if a court order prohibits the association;
(ii) in a manner prohibited by court order; or
(iii) if the adult ward expresses a desire to not associate with the relative or qualified
acquaintance.
(3) A guardian may, as part of the initial guardianship proceeding, petition the court to
issue an order:
(a) prohibiting or placing conditions on association between an adult ward and a
relative or qualified acquaintance of the adult ward; or
(b) granting the guardian the authority to prohibit or place conditions on association
between an adult ward and a relative or qualified acquaintance of the adult ward.
(4) A guardian may, at any time after the initial guardianship proceeding:
(a) petition the court to issue an order described in Subsection (3) or to rescind or
modify an order described in Subsection (3); or
(b) petition, subject to notice, the court on an emergency basis to issue a temporary
order until further order of the court described in Subsection (3) or to rescind or modify an
order described in Subsection (3).
(5) An adult ward, a relative of an adult ward, or a qualified acquaintance of an adult
ward may, at any time after the initial guardianship proceeding, petition the court to rescind or
modify an order described in Subsection (3).
(6) If a guardian violates Subsection (2), the adult ward, a relative of the adult ward, or
a qualified acquaintance of the adult ward may [
do one or more of the following
], as
applicable:
[
(a) petition the court to issue an order to show cause why the guardian should not be
held in contempt of court;
]
(a) file an ex parte motion to enforce an order or to obtain sanctions;
(b) seek an injunction to enforce compliance by the guardian with the law and any
applicable court order; or
(c) petition the court to have the guardian removed as guardian of the adult ward.
(7) For a hearing on a petition filed under this section, a court:
(a) may appoint a court visitor to meet with the adult ward to determine the wishes of
the adult ward regarding association;
(b) shall give notice and an opportunity to be heard to the guardian, the adult ward, and
the relative or qualified acquaintance;
(c) shall preserve the right of the adult ward to be present at the hearing; and
(d) may order supervised visitation by the relative or qualified acquaintance before the
hearing.
(8) A court may not enter an order prohibiting or placing restrictions on association
between an adult ward and a relative or qualified acquaintance, unless the court finds by a
preponderance of the evidence that:
(a) the adult ward desires the prohibition or restriction;
(b) if the adult ward had the capacity to make a knowing and intelligent decision
regarding the association, the adult ward would prohibit the association or impose the
restriction; or
(c) the prohibition or restriction is the least restrictive means necessary to protect the
health or welfare of the adult ward.
(9) In making the determination described in Subsection (8), the court may consider
any relevant evidence, including:
(a) the wishes of the adult ward, expressed during or before the guardianship;
(b) the history of the relationship between the adult ward and the relative or qualified
acquaintance;
(c) any history of criminal activity, abuse, neglect, or violence by the relative or
qualified acquaintance; or
(d) whether a protective order was ever issued against the relative or qualified
acquaintance with respect to the adult ward.
(10) Except as provided in Subsection (11), the guardian shall have the burden of proof
when:
(a) seeking an order prohibiting association or placing restrictions on association with a
relative or qualified acquaintance of the adult ward;
(b) modifying an order to place additional prohibitions or restrictions on association
with a relative or qualified acquaintance of the adult ward; or
(c) opposing an action described in Subsection (6)(a) or (b).
(11) The relative or qualified acquaintance shall have the burden of proof if the relative
or qualified acquaintance is seeking to modify an order previously entered by a court under this
section.
(12) (a) If, in a proceeding under this section, the court finds that the petition was filed
frivolously or in bad faith, the court shall award attorney fees to a party opposing the petition.
(b) If, in a proceeding under this section, the court finds that the guardian is in
contempt of court or has acted frivolously or in bad faith in prohibiting or restricting
association, the court:
(i) [
may
] 
shall
 award attorney fees to the prevailing party; and
(ii) may impose a sanction, not to exceed $1,000, against the guardian.
(c) A court shall prohibit attorney fees awarded under this [
section
] 
Subsection (12)
from being paid by the adult ward or the adult ward's estate.