01-27 09:07 H.B. 334
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Guardianships and Supported Decision-Making Agreements Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor:
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LONG TITLE
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General Description:
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This bill addresses guardianships and supported decision-making agreements.
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Highlighted Provisions:
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This bill:
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▸ defines terms;
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▸ repeals a provision that provides for the future repeal of statutory language concerning
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when counsel is not required for an allegedly incapacitated person;
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▸ amends provisions concerning the rights of certain individuals who are under a
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court-ordered guardianship;
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▸ amends provisions concerning the procedure for determining incapacity and appointing a
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guardian for an incapacitated person;
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▸ prescribes the principles by which provisions related to supported decision-making
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agreements should be interpreted;
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▸ describes the requirements for a supported decision-making agreement;
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▸ authorizes the use of a supported decision-making agreement by certain individuals,
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subject to the permission of the individual's guardian, conservator, or other qualified
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person, as applicable;
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▸ describes the duties of an individual who is a supporter under a supported
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decision-making agreement;
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▸ provides that a supported decision-making agreement may be revoked or terminated, with
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certain conditions;
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▸ describes how a supported decision-making agreement interacts with and affects other
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laws and principles;
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▸ provides protections for a person who relies, in good faith, on the provisions of a
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supported decision-making agreement; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
H.B. 334 H.B. 334 01-27 09:07
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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7-5-1, as last amended by Laws of Utah 2013, Chapter 364
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63I-2-275, as last amended by Laws of Utah 2024, Third Special Session, Chapter 5
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75-1-201, as last amended by Laws of Utah 2024, Chapter 364
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75-5-301.5, as last amended by Laws of Utah 2024, Chapter 113
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75-5-303, as last amended by Laws of Utah 2024, Chapter 113
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75-5-312, as last amended by Laws of Utah 2022, Chapter 358 and repealed and
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reenacted by Laws of Utah 2022, Chapter 441 and last amended by Coordination Clause, Laws
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of Utah 2022, Chapter 358
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75-5-417, as last amended by Laws of Utah 2022, Chapter 358
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ENACTS:
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75-5-701, Utah Code Annotated 1953
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75-5-702, Utah Code Annotated 1953
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75-5-703, Utah Code Annotated 1953
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75-5-704, Utah Code Annotated 1953
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75-5-705, Utah Code Annotated 1953
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75-5-706, Utah Code Annotated 1953
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75-5-707, Utah Code Annotated 1953
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75-5-708, Utah Code Annotated 1953
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75-5-709, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 7-5-1 is amended to read:
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7-5-1 . Definitions -- Allowable trust companies -- Exceptions.
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(1) As used in this chapter:
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(a) "Business trust" means an entity engaged in a trade or business that is created by a
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declaration of trust that transfers property to trustees, to be held and managed by
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them for the benefit of persons holding certificates representing the beneficial interest
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in the trust estate and assets.
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(b) "Trust business" means, except as provided in Subsection (1)(c), a business in which
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one acts in any agency or fiduciary capacity, including that of personal
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representative, executor, administrator, conservator, guardian, assignee, receiver,
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depositary, or trustee under appointment as trustee for any purpose permitted by law,
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including the definition of "trust" set forth in [Subsection 75-1-201(55)] Section
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75-1-201.
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(c) "Trust business" does not include the following means of holding money, assets, or
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other property:
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(i) money held in a client trust account by an attorney authorized to practice law in
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this state;
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(ii) money held in connection with the purchase or sale of real estate by a person
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licensed as a principal broker in accordance with Title 61, Chapter 2f, Real Estate
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Licensing and Practices Act;
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(iii) money or other assets held in escrow by a person authorized by the department in
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accordance with Chapter 22, Regulation of Independent Escrow Agents, or by the
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Utah Insurance Department to act as an escrow agent in this state;
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(iv) money held by a homeowners' association or similar organization to pay
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maintenance and other related costs for commonly owned property;
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(v) money held in connection with the collection of debts or payments on loans by a
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person acting solely as the agent or representative or otherwise at the sole
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direction of the person to which the debt or payment is owed, including money
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held by an escrow agent for payment of taxes or insurance;
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(vi) money and other assets held in trust on an occasional or isolated basis by a
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person who does not represent that the person is engaged in the trust business in
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Utah;
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(vii) money or other assets found by a court to be held in an implied, resulting, or
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constructive trust;
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(viii) money or other assets held by a court appointed conservator, guardian, receiver,
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trustee, or other fiduciary if:
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(A) the conservator, receiver, guardian, trustee, or other fiduciary is responsible to
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the court in the same manner as a personal representative under Title 75,
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Chapter 3, Part 5, Supervised Administration, or as a receiver under Rule 66,
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Utah Rules of Civil Procedure; and
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(B) the conservator, trustee, or other fiduciary is a certified public accountant or
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has qualified for and received a designation as a certified financial planner,
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chartered financial consultant, certified financial analyst, or similar designation
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suitable to the court, that evidences the conservator's, trustee's, or other
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fiduciary's professional competence to manage financial matters;
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(ix) money or other assets held by a credit services organization operating in
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compliance with Title 13, Chapter 21, Credit Services Organizations Act;
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(x) money, securities, or other assets held in a customer account in connection with
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the purchase or sale of securities by a regulated securities broker, dealer, or
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transfer agent; or
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(xi) money, assets, and other property held in a business trust for the benefit of
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holders of certificates of beneficial interest if the fiduciary activities of the
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business trust are merely incidental to conducting business in the business trust
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form.
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(d) "Trust company" means an institution authorized to engage in the trust business
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under this chapter. Only the following may be a trust company:
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(i) a Utah depository institution or its wholly owned subsidiary;
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(ii) an out-of-state depository institution authorized to engage in business as a
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depository institution in Utah or its wholly owned subsidiary;
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(iii) a corporation, including a credit union service organization, owned entirely by
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one or more federally insured depository institutions as defined in Subsection
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7-1-103(8);
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(iv) a direct or indirect subsidiary of a depository institution holding company that
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also has a direct or indirect subsidiary authorized to engage in business as a
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depository institution in Utah; and
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(v) any other corporation continuously and lawfully engaged in the trust business in
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this state since before July 1, 1981.
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(2) Only a trust company may engage in the trust business in this state.
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(3) The requirements of this chapter do not apply to:
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(a) an institution authorized to engage in a trust business in another state that is engaged
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in trust activities in this state solely to fulfill its duties as a trustee of a trust created
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and administered in another state;
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(b) a national bank, federal savings bank, federal savings and loan association, or federal
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credit union authorized to engage in business as a depository institution in Utah, or
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any wholly owned subsidiary of any of these, to the extent the institution is
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authorized by its primary federal regulator to engage in the trust business in this state;
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or
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(c) a state agency that is otherwise authorized by statute to act as a conservator, receiver,
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guardian, trustee, or in any other fiduciary capacity.
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Section 2. Section 63I-2-275 is amended to read:
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63I-2-275 . Repeal dates: Title 75.
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[Subsection 75-5-303(5)(d), regarding counsel for a person alleged to be incapacitated,
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is repealed July 1, 2028] Reserved.
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Section 3. Section 75-1-201 is amended to read:
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75-1-201 . Title definitions.
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As used in this title:
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(1) "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney,
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an individual authorized to make decisions concerning another's health care, and an
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individual authorized to make decisions for another under a natural death act.
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(2) "Application" means a written request to the registrar for an order of informal probate or
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appointment under Chapter 3, Part 3, Informal Probate and Appointment Proceedings.
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(3)(a) "Beneficiary," as it relates to trust beneficiaries, includes:
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(i) a person who has any present or future interest, vested or contingent; and
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(ii) the owner of an interest by assignment or other transfer.
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(b) "Beneficiary," as it relates to a charitable trust, includes any person entitled to
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enforce the trust.
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(c) "Beneficiary," as it relates to a beneficiary of a beneficiary designation, means a
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beneficiary of:
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(i) an insurance or annuity policy;
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(ii) an account with POD designation;
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(iii) a security registered in beneficiary form (TOD);
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(iv) a pension, profit-sharing, retirement, or similar benefit plan; or
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(v) other nonprobate transfer at death.
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(d) "Beneficiary," as it relates to a beneficiary designated in a governing instrument,
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includes:
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(i) a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary
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designation, a donee, appointee, or taker in default of a power of appointment; and
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(ii) a person in whose favor a power of attorney or a power held in any individual,
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fiduciary, or representative capacity is exercised.
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(4) "Beneficiary designation" means a governing instrument naming a beneficiary of an
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insurance or annuity policy, of an account with POD designation, of a security registered
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in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit
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plan, or other nonprobate transfer at death.
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(5)(a) "Child" includes any individual entitled to take as a child under this title by
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intestate succession from the parent whose relationship is involved.
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(b) "Child" does not include an individual who is only a stepchild, a foster child, a
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grandchild, or any more remote descendant.
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(6)(a) "Claims," in respect to estates of decedents and protected persons, includes
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liabilities of the decedent or protected person, whether arising in contract, in tort, or
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otherwise, and liabilities of the estate which arise at or after the death of the decedent
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or after the appointment of a conservator, including funeral expenses and expenses of
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administration.
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(b) "Claims" does not include estate or inheritance taxes, or demands or disputes
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regarding title of a decedent or protected person to specific assets alleged to be
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included in the estate.
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(7) "Community property with a right of survivorship" means joint tenants with the right of
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survivorship.
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(8) "Conservator" means a person who is appointed by a court to manage the estate of a
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protected person.
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(9) "Court" means any of the courts of record in this state having jurisdiction in matters
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relating to the affairs of decedents.
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(10) "Descendant" means all of an individual's descendants of all generations, with the
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relationship of parent and child at each generation being determined by the definition of
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child and parent contained in this title.
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(11) "Devise," when used as a noun, means a testamentary disposition of real or personal
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property and, when used as a verb, means to dispose of real or personal property by will.
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(12) "Devisee" means any person designated in a will to receive a devise. For the purposes
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of Chapter 3, Probate of Wills and Administration, in the case of a devise to an existing
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trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee,
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and the beneficiaries are not devisees.
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(13) "Disability" means cause for a protective order as described by Section 75-5-401.
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(14) "Distributee" means any person who has received property of a decedent from his
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personal representative other than as a creditor or purchaser. A testamentary trustee is a
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distributee only to the extent of distributed assets or increment thereto remaining in his
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hands. A beneficiary of a testamentary trust to whom the trustee has distributed
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property received from a personal representative is a distributee of the personal
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representative. For purposes of this provision, "testamentary trustee" includes a trustee
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to whom assets are transferred by will, to the extent of the devised assets.
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(15) "Estate" includes the property of the decedent, trust, or other person whose affairs are
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subject to this title as originally constituted and as it exists from time to time during
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administration.
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(16) "Exempt property" means that property of a decedent's estate which is described in
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Section 75-2-403.
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(17) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
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(18) "Foreign personal representative" means a personal representative of another
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jurisdiction.
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(19) "Formal proceedings" means proceedings conducted before a judge with notice to
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interested persons.
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(20) "General personal representative" does not include a special administrator.
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(21) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account
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with POD designation, security registered in beneficiary form (TOD), pension,
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profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a
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power of appointment or a power of attorney, a supported decision-making agreement,
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or a dispositive, appointive, or nominative instrument of any similar type.
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(22)(a) "Guardian" means a person who has qualified as a guardian of a minor or
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incapacitated person pursuant to testamentary or court appointment, or by written
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instrument as provided in Section 75-5-202.5, and who has the powers described in
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Subsection 75-5-312(1)(c)(i) unless specifically limited by a court in the order of
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appointment.
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(b) "Guardian" does not include a person who is merely a guardian ad litem.
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(23) "Heirs," except as controlled by Section 75-2-711, means persons, including the
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surviving spouse and state, who are entitled under the statutes of intestate succession to
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the property of a decedent.
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(24) "Incapacitated" means a judicial determination after proof by clear and convincing
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evidence that an adult's ability to do the following is impaired to the extent that the
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individual lacks the ability, even with appropriate technological assistance, to meet the
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essential requirements for financial protection or physical health, safety, or self-care:
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(a) receive and evaluate information;
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(b) make and communicate decisions; or
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(c) provide for necessities such as food, shelter, clothing, health care, or safety.
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(25) "Incapacity" means incapacitated.
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(26) "Informal proceedings" mean a proceeding conducted without notice to interested
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persons by an officer of the court acting as a registrar for probate of a will or
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appointment of a personal representative.
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(27)(a) "Interested person" includes heirs, devisees, children, spouses, creditors,
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beneficiaries, and any others having a property right in or claim against a trust estate
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or the estate of a decedent, ward, or protected person. The meaning of interested
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person as it relates to particular persons may vary from time to time and is
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determined according to the particular purposes of, and matter involved in, any
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proceeding.
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(b) "Interested person" includes persons having priority for appointment as personal
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representative, other fiduciaries representing interested persons, a settlor of a trust, if
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living, or the settlor's legal representative, if any, if the settlor is living but
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incapacitated.
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(28) "Issue" means a descendant of an individual.
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(29)(a) "Joint tenants with the right of survivorship" includes coowners of property held
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under circumstances that entitle one or more to the whole of the property on the death
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of the other.
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(b) "Joint tenants with the right of survivorship" does not include forms of coownership
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registration in which the underlying ownership of each party is in proportion to that
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party's contribution.
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(30) "Lease" includes an oil, gas, or other mineral lease.
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(31) "Letters" includes letters testamentary, letters of guardianship, letters of
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administration, and letters of conservatorship.
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(32) "Minor" means a person who is under 18 years old.
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(33) "Minor protected person" means a minor for whom a conservator has been appointed
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because of minority.
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(34) "Minor ward" means a minor for whom a guardian has been appointed solely because
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of minority.
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(35) "Mortgage" means any conveyance, agreement, or arrangement in which property is
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used as security.
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(36) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at
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the time of the decedent's death.
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(37) "Organization" includes a corporation, limited liability company, business trust, estate,
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trust, partnership, joint venture, association, government or governmental subdivision or
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agency, or any other legal or commercial entity.
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(38)(a) "Parent" includes any person entitled to take, or who would be entitled to take if
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the child died without a will, as a parent under this title by intestate succession from
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the child whose relationship is in question.
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(b) "Parent" does not include any person who is only a stepparent, foster parent, or
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grandparent.
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(39) "Payor" means a trustee, insurer, business entity, employer, government, governmental
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agency or subdivision, or any other person authorized or obligated by law or a governing
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instrument to make payments.
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(40) "Person" means an individual or an organization.
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(41) "Personal representative" includes executor, administrator, successor personal
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representative, special administrator, and persons who perform substantially the same
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function under the law governing their status.
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(42) "Petition" means a written request to the court for an order after notice.
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(43) "Proceeding" includes action at law and suit in equity.
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(44) "Property" includes both real and personal property or any interest therein and means
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anything that may be the subject of ownership.
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(45) "Protected person" means a person for whom a conservator has been appointed.
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(46) "Protective proceeding" means a proceeding described in Section 75-5-401.
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(47) "Record" means information that is inscribed on a tangible medium or that is stored in
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an electronic or other medium and is retrievable in perceivable form.
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(48) "Registrar" means the official of the court designated to perform the functions of
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registrar as provided in Section 75-1-307.
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(49) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of
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indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease
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or in payments out of production under such a title or lease, collateral trust certificate,
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transferable share, voting trust certificate, and, in general, any interest or instrument
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commonly known as a security, or any certificate of interest or participation, any
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temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or
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right to subscribe to or purchase, any of the foregoing.
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(50) "Settlement," in reference to a decedent's estate, includes the full process of
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administration, distribution, and closing.
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(51) "Sign" means, with present intent to authenticate or adopt a record other than a will:
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(a) to execute or adopt a tangible symbol; or
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(b) to attach to or logically associate with the record an electronic symbol, sound, or
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process.
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(52) "Special administrator" means a personal representative as described in Sections
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75-3-614 through 75-3-618.
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(53) "State" means a state of the United States, the District of Columbia, the
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Commonwealth of Puerto Rico, any territory or insular possession subject to the
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jurisdiction of the United States, or a Native American tribe or band recognized by
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federal law or formally acknowledged by a state.
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(54) "Successor personal representative" means a personal representative, other than a
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special administrator, who is appointed to succeed a previously appointed personal
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representative.
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(55) "Successors" means persons, other than creditors, who are entitled to property of a
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decedent under the decedent's will or this title.
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(56) "Supervised administration" means the proceedings described in Chapter 3, Part 5,
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Supervised Administration.
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(57)(a) "Survive" means, except for Chapter 6, Part 3, Uniform Transfer on Death
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Security Registration Act, that an individual has neither predeceased an event,
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including the death of another individual, nor is considered to have predeceased an
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event under Section 75-2-104 or 75-2-702.
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(b) "Survive" includes its derivatives, such as "survives," "survived," "survivor," and
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"surviving."
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(58) "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
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(59) "Testator" includes an individual of either sex.
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(60)(a) "Trust" includes:
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(i) a health savings account, as defined in Section 223of the Internal Revenue Code;
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(ii) an express trust, private or charitable, with additions thereto, wherever and
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however created; or
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(iii) a trust created or determined by judgment or decree under which the trust is to be
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administered in the manner of an express trust.
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(b) "Trust" does not include:
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(i) a constructive trust;
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(ii) a resulting trust;
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(iii) a conservatorship;
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(iv) a personal representative;
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(v) a trust account as defined in Chapter 6, Nonprobate Transfers;
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(vi) a custodial arrangement under Title 75A, Chapter 8, Uniform Transfers To
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Minors Act;
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(vii) a business trust providing for certificates to be issued to beneficiaries;
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(viii) a common trust fund;
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(ix) a voting trust;
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(x) a preneed funeral plan under Title 58, Chapter 9, Funeral Services Licensing Act;
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(xi) a security arrangement;
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(xii) a liquidation trust;
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(xiii) a trust for the primary purpose of paying debts, dividends, interest, salaries,
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wages, profits, pensions, or employee benefits of any kind; or
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(xiv) any arrangement under which a person is nominee or escrowee for another.
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(61) "Trustee" includes an original, additional, and successor trustee, and cotrustee, whether
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or not appointed or confirmed by the court.
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(62) "Ward" means a person for whom a guardian has been appointed.
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(63) "Will" includes codicil and any testamentary instrument which merely appoints an
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executor, revokes or revises another will, nominates a guardian, or expressly excludes or
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limits the right of an individual or class to succeed to property of the decedent passing
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by intestate succession.
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Section 4. Section 75-5-301.5 is amended to read:
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75-5-301.5 . Rights of a person alleged to be incapacitated -- Rights of an
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incapacitated person.
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(1) Except as otherwise provided by this chapter or any other law, including Subsection
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75-5-312(1)(c)(i), a person alleged to be incapacitated has the right to:
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(a) be represented by counsel before a guardianship is imposed and have counsel
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represent the person during the guardianship proceeding, except as provided in
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Subsection 75-5-303(6)(e);
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(b) receive a copy of all documents filed in a guardianship proceeding;
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(c) have a relative, physician, physician assistant, or any interested person speak about
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or raise any issue of concern on behalf of the person during the guardianship
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proceeding;
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(d) receive information about guardianships from the court; and
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(e) be treated with respect and dignity.
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(2) For a guardianship granted before May 7, 2025, the rights of an incapacitated person for
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whom a guardian is appointed are in accordance with the statutory provisions in effect as
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of the date that the guardianship was granted, including, as applicable, Subsection
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75-5-312(1)(c)(i) unless expressly limited by a court in the order of appointment.
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(3) Except as otherwise provided by this chapter or any other law, including Subsection
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75-5-312(1)(c)(i), for a guardianship granted on or after May 7, 2025, an incapacitated
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person for whom a guardian is appointed has the right to:
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(a) have counsel represent the incapacitated person at any time after the guardian is
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appointed;
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(b) have a relative, physician, physician assistant, or any interested person speak about
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or raise any issue of concern on behalf of the person in any court hearing about the
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guardianship;
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(c) receive a copy of all documents filed in court regarding the guardianship;
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(d) receive information about guardianships from the court;
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(e) ask questions and express concerns or complaints about a guardian and the actions of
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a guardian to the court;
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[(f) participate in developing an individualized plan for the incapacitated person's care,
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including:]
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[(i) managing the incapacitated person's assets and property;]
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[(ii) determining the incapacitated person's residence; and]
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[(iii) determining the services to be received by the incapacitated person;]
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[(g) be given consideration in regards to the incapacitated person's current and
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previously stated desires, preferences for health care and medical treatment, and
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religious and moral beliefs;]
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[(h) remain as independent as possible, including giving deference to the incapacitated
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person's preference for the incapacitated person's residence and standard of living:]
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[(i) as expressed or demonstrated before a determination of capacity was made; or]
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[(ii) as currently expressed or demonstrated by the incapacitated person if the
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preference is reasonable under the circumstances;]
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[(i)] (f) be granted the greatest degree of freedom possible that is consistent with the
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reasons for the guardianship;
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[(j) be able to exercise control over all aspects of the incapacitated person's life that are
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not granted to the guardian in the order of appointment;]
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[(k) engage in any activity that the court has not expressly reserved for the guardian,
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including marriage or domestic partnership, traveling, working, or having a driver
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license;]
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[(l)] (g) be treated with respect and dignity;
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[(m)] (h) be treated fairly by the incapacitated person's guardian;
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[(n) maintain privacy and confidentiality in personal matters;]
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[(o) receive telephone calls and personal mail and associate with relatives and
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acquaintances unless the guardian and the court determine that the association should
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be restricted or prohibited in accordance with Section 75-5-312.5;]
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[(p) receive timely, effective, and appropriate health care and medical treatment that
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does not violate the incapacitated person's rights;]
417
[(q)] (i) have all services provided by a guardian at a reasonable rate of compensation;
418
[(r)] (j) have a court review any request for payment by a guardian to avoid excessive or
419
unnecessary fees or duplicative billing;
420
[(s)] (k) receive prudent financial management of the incapacitated person's property;
421
[(t)] (l) subject to Subsections 75-5-312(4)(h) and 75-5-417(4), and subject to the
422
exception provided in Subsection 75-5-312(7)(d), receive a copy of an accounting
423
report regarding the incapacitated person's estate that is submitted to the court by the
424
guardian under Section 75-5-312 or the conservator under Section 75-5-417 if a
425
conservator is appointed for the incapacitated person; and
426
[(u) receive and control the incapacitated person's salary;]
427
[(v) maintain a bank account and manage the incapacitated person's personal money; and]
428
[(w)] (m) ask the court to:
429
(i) review the management activity of a guardian if a dispute cannot be resolved
430
regarding the guardian's management;
431
(ii) continue to review the need for a guardianship or to modify or terminate a
432
guardianship pursuant to Section 75-5-306 and Section 75-5-307; and
433
(iii) enter an order restoring the incapacitated person's capacity at the earliest possible
434
time pursuant to Section 75-5-306 and Section 75-5-307.
435
[(3)] (4) The court may not waive, suspend, or limit a right described in Subsection (3).
436
(5) Except as otherwise provided by this chapter or any other law, and subject to Subsection
437
(6), for a guardianship granted on or after May 7, 2025, an incapacitated person for
438
whom a guardian is appointed has the right, to the extent practicable, to:
- 13 - H.B. 334 01-27 09:07
439
(a) participate in developing an individualized plan for the incapacitated person's care,
440
including:
441
(i) managing the incapacitated person's assets and property;
442
(ii) determining the incapacitated person's residence; and
443
(iii) determining the services to be received by the incapacitated person;
444
(b) be given consideration in regards to the incapacitated person's current and previously
445
stated desires, preferences for health care and medical treatment, and religious and
446
moral beliefs;
447
(c) remain as independent as possible, including giving deference to the incapacitated
448
person's preference for the incapacitated person's residence and standard of living:
449
(i) as expressed or demonstrated before a determination of capacity was made; or
450
(ii) as currently expressed or demonstrated by the incapacitated person if the
451
preference is reasonable under the circumstances;
452
(d) be able to exercise control over all aspects of the incapacitated person's life that are
453
not granted to the guardian in an order of appointment of a limited guardianship;
454
(e) maintain privacy and confidentiality in personal matters, to the extent that privacy
455
and confidentiality does not inhibit the ability of the incapacitated person's guardian
456
to fulfill the guardian's responsibilities or perform the guardian's duties;
457
(f) receive telephone calls and personal mail and associate with relatives and
458
acquaintances unless the guardian and the court determine that the association should
459
be restricted or prohibited in accordance with Section 75-5-312.5;
460
(g) receive timely, effective, and appropriate health care and medical treatment that does
461
not violate the incapacitated person's rights;
462
(h) receive an allowance or control a reasonable amount of the incapacitated person's
463
earnings or other income; and
464
(i) collaborate with the incapacitated person's guardian to use appropriate financial tools
465
to maintain a bank account and manage the incapacitated person's personal money.
466
(6) The court may waive or limit a right described in Subsection (5) if:
467
(a) an interested party requests the waiver or limitation; and
468
(b) the court finds, by clear and convincing evidence, that there is a compelling reason
469
for the waiver or limitation.
470
(7)(a) The rights of an incapacitated person under this section do not abrogate any
471
remedy provided by law.
472
(b) This section may not be interpreted in a way that would permit or justify any action
- 14 - 01-27 09:07 H.B. 334
473
that violates a provision in Sections 76-5-111 through 76-5-111.4 or Section
474
76-5-112.5.
475
[(4)] (8) Any right described in this section may be:
476
(a) addressed in a guardianship proceeding; or
477
(b) enforced through a private cause of action.
478
Section 5. Section 75-5-303 is amended to read:
479
75-5-303 . Procedure for court appointment of a guardian of an incapacitated
480
person.
481
(1) An allegedly incapacitated person or any person interested in [the] an allegedly
482
incapacitated person's welfare may petition for a finding of incapacity and appointment
483
of a guardian.
484
(2)(a) Upon the filing of a petition, the court shall set a date for hearing on the issues of
485
incapacity.
486
(b) Unless the allegedly incapacitated person has counsel of the person's own choice, the
487
court shall appoint an attorney to represent the person in the proceeding the cost of
488
which shall be paid by the allegedly incapacitated person[ alleged to be incapacitated],
489
unless the allegedly incapacitated person and the allegedly incapacitated person's
490
parents are indigent.
491
(c) If the court determines that the petition is without merit, the attorney fees and court
492
costs shall be paid by the person filing the petition.
493
(d) If the court appoints the petitioner or the petitioner's nominee as guardian of the
494
incapacitated person, regardless of whether the nominee is specified in the moving
495
petition or nominated during the proceedings, the petitioner shall be entitled to
496
receive from the incapacitated person reasonable attorney fees and court costs
497
incurred in bringing, prosecuting, or defending the petition.
498
(3) The legal representation of [the] an allegedly incapacitated person by an attorney shall
499
terminate upon the appointment of a guardian, unless:
500
(a) there are separate conservatorship proceedings still pending before the court
501
subsequent to the appointment of a guardian;
502
(b) there is a timely filed appeal of the appointment of the guardian or the determination
503
of incapacity; or
504
(c) upon an express finding of good cause, the court orders otherwise.
505
(4)(a) The court may appoint a health care provider, as that term is defined in Section
506
75A-3-101, to examine the functional capabilities and limitations of the allegedly
- 15 - H.B. 334 01-27 09:07
507
incapacitated person.
508
(b) An appointed health care provider shall submit to the court a report assessing, within
509
the scope of the health care provider's license and experience, the functional
510
capabilities and limitations of the allegedly incapacitated person to, with or without
511
appropriate technological assistance:
512
(i) receive and evaluate information;
513
(ii) make and communicate decisions; and
514
(iii) provide for necessities such as food, shelter, clothing, health care, or safety.
515
(5) [The person alleged to be incapacitated may be examined by a physician or physician
516
assistant appointed by the court who shall submit a report in writing to the court and
517
may be interviewed by a visitor sent by the court. The visitor also may]
518
(a) The court may appoint a court visitor to:
519
(i) interview the person seeking appointment as guardian[,] ;
520
(ii) visit the present place of abode of the allegedly incapacitated person[ alleged to
521
be incapacitated] and the place it is proposed that the allegedly incapacitated
522
person will be detained or reside if the requested appointment is made[,] ; or
523
(iii) conduct other investigations or observations as directed by the court[, and submit
524
a report in writing to the court].
525
(b) The court visitor shall submit a written report to the court.
526
[(5)] (6)(a) The allegedly incapacitated person[ alleged to be incapacitated] shall be
527
present at the hearing [in person ]and see or hear all evidence bearing upon the
528
person's condition.
529
(b) [If the person seeking the guardianship requests a waiver of presence of the person
530
alleged to be incapacitated,] The court may only waive the presence of the allegedly
531
incapacitated person if all of the following criteria are met:
532
(i) the person is represented by an attorney;
533
(ii) [ the court shall order an investigation by ]a court visitor is appointed to
534
investigate, the costs of which shall be paid by the person seeking the guardianship[.]
535
; and
536
(iii) following the investigation, the court finds that there is no reasonable
537
accommodation that will enable the allegedly incapacitated person to be present
538
for or participate in the hearing.
539
[(b)] (c) [The investigation by a] A court visitor is not required to investigate under
540
Subsection (6)(b)(ii) if there is clear and convincing evidence from a physician that
- 16 - 01-27 09:07 H.B. 334
541
the person alleged to be incapacitated [has:] is experiencing a state of extended
542
comatosis that is likely to persist through the time of the hearing.
543
[(i) fourth stage Alzheimer's Disease;]
544
[(ii) extended comatosis; or]
545
[(iii)(A) an intellectual disability; and]
546
[(B) an intelligence quotient score under 25.]
547
[(c)] (d) [The] In addition to the rights described in Section 75-5-301.5, an allegedly
548
incapacitated person[ alleged to be incapacitated] is entitled to be represented by
549
counsel, to present evidence, to cross-examine witnesses, including the
550
court-appointed [physician] health care provider and the court visitor, and to trial by
551
jury. The issue may be determined at a closed hearing without a jury if the allegedly
552
incapacitated person[ alleged to be incapacitated] or the person's counsel so requests.
553
[(d)] (e) Counsel for the allegedly incapacitated person[ alleged to be incapacitated, as
554
defined in Subsection 75-1-201(22),] is not required if all of the following criteria are
555
met:
556
(i) the allegedly incapacitated person is the biological or adopted child of the
557
petitioner;
558
(ii) the value of the allegedly incapacitated person's entire estate does not exceed
559
$20,000 as established by an affidavit of the petitioner in accordance with Section
560
75-3-1201;
561
(iii) the allegedly incapacitated person's appearance at the hearing has not been
562
waived and the person appears in court with the petitioner, as described in
563
Subsection (6)(a);
564
(iv) the allegedly incapacitated person is given the opportunity to communicate, to
565
the extent possible, the person's acceptance of or objection to the appointment of [
566
petitioner] the proposed guardian, including the opportunity to communicate that
567
acceptance or objection to the court and, as applicable, to the person's supporters,
568
health care providers, and attorney;
569
(v) no attorney from the state court's list of attorneys who have volunteered to
570
represent respondents in guardianship proceedings is able to provide counsel to
571
the person within 60 days of the date of the [appointment] hearing, as described in
572
Subsection (2)(b);
573
(vi) the court is satisfied that counsel is not necessary [in order ]to protect the
574
interests of the allegedly incapacitated person; and
- 17 - H.B. 334 01-27 09:07
575
(vii) the court appoints a court visitor and receives a report from the court visitor
576
under Subsection [(4)] (5).
577
Section 6. Section 75-5-312 is amended to read:
578
75-5-312 . General powers and duties of guardian -- Penalties.
579
(1)(a) A guardian of an incapacitated person shall diligently and in good faith carry out
580
the specific duties, powers, and rights that the guardian is granted:
581
(i) in an order of appointment by a court under Section 75-5-304; and
582
(ii) under this section.
583
(b) A court may, in the order of appointment, place specific limitations on the guardian's
584
power, duties, and rights.
585
(c)(i) Except as provided in this Subsection (1), a guardian has the same powers,
586
rights, and duties respecting the ward that a parent has respecting the parent's
587
unemancipated minor.
588
(ii) A guardian is not liable to a third person for acts of the guardian's ward solely by
589
reason of the relationship described in Subsection (1)(c)(i).
590
(d) In carrying out duties, powers, and rights that a guardian is granted, the guardian
591
shall encourage the ward, to the extent practicable, to participate in decisions,
592
exercise self-determination, act on the ward's own behalf, and develop or regain the
593
capacity to manage the ward's personal affairs.
594
(e) To the extent known, a guardian, in making decisions about the ward, shall consider
595
the expressed desires, preferences, and personal values of the ward.
596
(2) Except as modified by an order of appointment under Section 75-5-304, a guardian has
597
the following duties and powers:
598
(a) to the extent that it is consistent with the terms of any order by a court relating to
599
detention or commitment of the ward, a guardian is entitled to custody of the person
600
of the ward and may establish the ward's place of residence within, or outside of, this
601
state, except that the guardian must give consideration to the ward's preference for
602
the ward's place of residence in accordance with Section 75-5-301.5;
603
(b) if a guardian is entitled to custody of the ward, the guardian shall provide for the
604
care, comfort, and maintenance of the ward and, whenever appropriate, arrange for
605
the ward's training and education;
606
(c) without regard to custodial rights of the ward's person, a guardian shall take
607
reasonable care of the ward's clothing, furniture, vehicles, and other personal effects
608
and commence protective proceedings if other property of the ward is in need of
- 18 - 01-27 09:07 H.B. 334
609
protection;
610
(d) a guardian may give the consent or approval that may be necessary to enable the
611
ward to receive medical or other professional care, counsel, treatment, or service,
612
except that the guardian must:
613
(i) give consideration to the ward's current and previously stated desires for health
614
care and medical treatment in accordance with Section 75-5-301.5; and
615
(ii) respect the ward's right to receive timely, effective, and appropriate health care in
616
accordance with Section 75-5-301.5;
617
(e) a guardian is required to notify any interested person named in the order of
618
appointment under Subsection 75-5-304(4) of any significant health care or treatment
619
received by the ward;
620
(f) a guardian is required to immediately notify persons who request notification and are
621
not restricted in associating with the ward in accordance with Section 75-5-312.5 of:
622
(i) the ward's admission to a hospital for three or more days or to a hospice program;
623
(ii) the ward's death; or
624
(iii) the arrangements for the disposition of the ward's remains;
625
(g) a guardian is required to immediately notify all interested persons if the guardian
626
reasonably believes that the ward's death is likely to occur within the next 10 days,
627
based on:
628
(i) the guardian's own observations; or
629
(ii) information from the ward's physician or other medical care providers;
630
(h) a guardian is required to:
631
(i) unless emergency conditions exist:
632
(A) file with the court a notice of the guardian's intent to move the ward; and
633
(B) serve the notice on all interested persons at least 10 days before the day on
634
which the guardian moves the ward; or
635
(ii) take reasonable steps to:
636
(A) notify all interested persons of the guardian's intent to move the ward; and
637
(B) file the notice of the move with the court as soon as practicable following the
638
earlier of the move or the date when the guardian's intention to move the ward
639
is made known to the ward, the ward's care giver, or any other third party;
640
(i) except as otherwise provided by Section 75-5-312.5, a guardian may not restrict or
641
prohibit a ward's association, as defined in Section 75-5-312.5, with family, relatives,
642
or friends;
- 19 - H.B. 334 01-27 09:07
643
(j) if no conservator for the estate of the ward has been appointed, a guardian may:
644
(i) institute proceedings to compel any person under a duty to support the ward or to
645
pay sums for the welfare of the ward to perform that duty;
646
(ii) compel the production of the ward's estate documents, including the ward's will,
647
trust, power of attorney, and any advance health care directive; and
648
(iii) receive money and tangible property deliverable to the ward and apply the
649
money and property for support, care, and education of the ward, except that:
650
(A) the guardian may not use funds from the ward's estate for room and board that
651
the guardian or the guardian's spouse, parent, or child have furnished the ward
652
unless a charge for the service is approved by order of the court made upon
653
notice to at least one adult relative in the nearest degree of kinship to the ward
654
in which there is an adult; and
655
(B) the guardian shall exercise care to conserve any excess for the ward's needs;
656
(k) if no conservator for the estate of the ward has been appointed:
657
(i) for all estates in excess of $50,000 excluding the residence owned by the ward, a
658
guardian shall send a report with a full accounting to the court on an annual basis;
659
or
660
(ii) for estates less than $50,000 excluding the residence owned by the ward, a
661
guardian shall fill out an informal annual report and mail the report to the court;
662
(l) a guardian shall provide an annual accounting of the status of the ward, including a
663
report of the physical and mental condition of the ward, the ward's estate that has
664
been subject to the guardian's possession, the ward's place of residence and others
665
living in the same household, to the court in the petition or the annual report as
666
required under Subsection (2)(k); and
667
(m) a guardian shall comply with standards set by the National Guardianship
668
Association for guardians to the extent that the standards are applicable to the
669
guardian.
670
(3) For the purposes of Subsections (2)(f), (g), and (h), an interested person is a person
671
required to receive notice in guardianship proceedings as described in Section 75-5-309.
672
(4)(a) An accounting report under Subsection (2)(k) shall include a statement regarding:
673
(i) all assets at the beginning and end of the reporting year;
674
(ii) any income received during the year;
675
(iii) any disbursements for the support of the ward;
676
(iv) any investments or trusts that are held for the ward's benefit;
- 20 - 01-27 09:07 H.B. 334
677
(v) any expenditures or fees charged to the ward's estate; and
678
(vi) any other expenses incurred by the ward's estate.
679
(b) The court may require additional information in an accounting report under
680
Subsection (2)(k).
681
(c) The Judicial Council shall approve forms for the accounting reports described in
682
Subsection (2)(k).
683
(d) An annual accounting report under Subsection (2)(k) shall be examined and
684
approved by the court.
685
(e) If the ward's income is limited to a federal or state program requiring an annual
686
accounting report, a copy of that report may be submitted to the court in lieu of the
687
required annual accounting report under Subsection (2)(k).
688
(f)(i) A corporate fiduciary is not required to petition the court, but shall submit the
689
corporate fiduciary's internal report annually to the court.
690
(ii) The report under Subsection (4)(f)(i) shall be examined and approved by the court.
691
(g) If a fee is paid for an accounting of an estate, a fee may not be charged for an
692
accounting of the status of a ward under Subsection (2)(l).
693
(h) Upon a motion and after a hearing, the court may alter the frequency of, or the
694
information included in, an accounting report provided to a ward in accordance with
695
Subsection [75-5-301.5(2)(t)] 75-5-301.5(3)(l).
696
(5) If a conservator has been appointed for a ward:
697
(a) all of the ward's estate received by the guardian in excess of those funds expended to
698
meet current expenses for support, care, and education of the ward shall be paid to
699
the conservator for management as provided in this chapter; and
700
(b) the guardian shall account to the conservator for funds expended.
701
(6)(a) Any guardian of a person for whom a conservator has been appointed:
702
(i) shall control the custody and care of the ward; and
703
(ii) is entitled to receive reasonable sums for services and for room and board
704
furnished to the ward as agreed upon between the guardian and the conservator if
705
the amounts agreed upon are reasonable under the circumstances.
706
(b) The guardian may request the conservator to expend the ward's estate by payment to
707
third persons or institutions for the ward's care and maintenance.
708
(7)(a) The court may impose a penalty in an amount not to exceed $5,000 if a guardian:
709
(i) makes a substantial misstatement on filings of annual reports;
710
(ii) is guilty of gross impropriety in handling the property of the ward; or
- 21 - H.B. 334 01-27 09:07
711
(iii) willfully fails to file the report required by this section after receiving written
712
notice from the court of the failure to file and after a grace period of two months
713
has elapsed.
714
(b) The court may order restitution of funds misappropriated from the estate of a ward.
715
(c) A penalty under this Subsection (7) shall be paid by the guardian and may not be
716
paid by the ward or the ward's estate.
717
(d) The provisions and penalties in Subsection (2)(k) or (l) governing annual reports do
718
not apply if the guardian or a coguardian is the parent of the ward.
719
(8) A person who refuses to accept the authority of a guardian with authority over financial
720
decisions to transact business with the assets of the ward after receiving a certified copy
721
of letters of guardianship is liable for costs, expenses, attorney fees, and damages if the
722
court determines that the person did not act in good faith in refusing to accept the
723
authority of the guardian.
724
Section 7. Section 75-5-417 is amended to read:
725
75-5-417 . General duty of conservator.
726
(1) A conservator shall act as a fiduciary and shall observe the standards of care as set forth
727
in Section 75-7-902.
728
(2)(a) For all estates in excess of $50,000 excluding the residence owned by the ward,
729
the conservator shall send a report with a full accounting to the court on an annual
730
basis.
731
(b) For estates less than $50,000 excluding the residence owned by the ward, the
732
conservator shall fill out an informal annual report and mail the report to the court.
733
(c) A report under Subsection (2)(a) or (b) shall include a statement regarding:
734
(i) all assets at the beginning and end of the reporting year;
735
(ii) any income received during the year;
736
(iii) any disbursements for the support of the ward;
737
(iv) any investments or trusts that are held for the ward's benefit;
738
(v) any expenditures or fees charged to the ward's estate; and
739
(vi) any other expenses incurred by the ward's estate.
740
(d) The Judicial Council shall approve the forms for the accounting reports described in
741
Subsections (2)(a) and (b).
742
(e) An annual accounting report under Subsection (2)(a) or (b) shall be examined and
743
approved by the court.
744
(3)(a) Corporate fiduciaries are not required to fully petition the court, but shall submit
- 22 - 01-27 09:07 H.B. 334
745
their internal report annually to the court.
746
(b) A report under Subsection (3)(a) shall be examined and approved by the court.
747
(4) Upon a motion and after a hearing, the court may alter the frequency of, or the
748
information included in, an accounting report provided to a ward in accordance with
749
Subsection [75-5-301.5(2)(t)] 75-5-301.5(3)(l).
750
(5)(a) The court may impose a fine in an amount not to exceed $5,000, if, after receiving
751
written notice of the failure to file and after a grace period of two months have
752
elapsed, a conservator or corporate fiduciary:
753
(i) makes a substantial misstatement on filings of any required annual reports;
754
(ii) is guilty of gross impropriety in handling the property of the ward; or
755
(iii) willfully fails to file the report required by this section.
756
(b) The court may also order restitution of funds misappropriated from the estate of a
757
ward.
758
(c) The penalty shall be paid by the conservator or corporate fiduciary and may not be
759
paid by the estate.
760
(6) These provisions and penalties governing annual reports do not apply if the conservator
761
is the parent of the ward.
762
Section 8. Section 75-5-701 is enacted to read:
763
Part 7. Supported Decision-making Agreements
764
75-5-701 . Definitions.
765
As used in this part:
766
(1) "Abuse" means the same as that term is defined in Section 26B-6-201.
767
(2) "Coercion" means influencing or attempting to influence a principal using force, threats,
768
or intimidation.
769
(3) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec. 160.103.
770
(4) "Exploitation" means the same as that term is defined in Section 26B-6-201.
771
(5) "Good faith" means honesty in fact in the conduct or transaction concerned.
772
(6) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, 50
773
Pub. L. No. 104-191, 110 Stat. 1936, as amended.
774
(7) "Neglect" means the same as that term is defined in Section 26B-6-201.
775
(8) "Principal" means an individual who:
776
(a) is 18 years old or older;
777
(b) has a disability, as that term is defined in Section 26B-6-801; and
778
(c) has entered into a supported decision-making agreement with at least one supporter.
- 23 - H.B. 334 01-27 09:07
779
(9) "Protected health information" means the same as that term is defined in 45 C.F.R. Sec.
780
160.103.
781
(10)(a) "Solicit" means to ask, command, encourage, importune, urge, or request.
782
(b) "Solicit" does not include providing information, materials, resources, or education
783
materials to an individual.
784
(11) "Qualifying person" means a person who has a legal right to receive notice regarding,
785
or legal decision-making authority for, an individual seeking to enter into a supported
786
decision-making agreement, which may include:
787
(a) the agent for a power of attorney;
788
(b) the agent for an advance health care directive; or
789
(c) the personal representative of a will or the trustee of a trust.
790
(12) "Supported decision-making" means the process of supporting and accommodating an
791
individual in the decision-making process to make, communicate, and effectuate life
792
decisions, without impeding the self-determination of the individual.
793
(13) "Supported decision-making agreement" means an agreement between a principal and
794
at least one supporter, subject to the requirements described in Section 75-5-704.
795
(14) "Supporter" means an individual:
796
(a) who is 18 years old or older;
797
(b) who is not being paid to provide support to the principal, unless the individual is
798
receiving caregiver compensation through the Division of Services for People with
799
Disabilities or is a sibling of the principal who cares for the principal;
800
(c) who does not have any of the following:
801
(i) a substantiated allegation of abuse, neglect, or exploitation;
802
(ii) a protective or restraining order; or
803
(iii) a conviction for:
804
(A) harm of another;
805
(B) theft; or
806
(C) financial crime; and
807
(d) who has agreed to provide specified assistance to a principal by entering into a
808
supported decision-making agreement with the principal.
809
(15) "Undue influence" means the same as that term is defined in Section 26B-6-201.
810
Section 9. Section 75-5-702 is enacted to read:
811
75-5-702 . Purposes of part.
812
The purposes of this part are to:
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813
(1) provide a principal assistance in:
814
(a) gathering and assessing information;
815
(b) understanding options, responsibilities, and consequences of a decision; and
816
(c) communicating decisions for a principal if the principal wants assistance with
817
communicating decisions;
818
(2) give a supporter legal status, as specified in a supported decision-making agreement, to
819
be with a principal, to access information on behalf of a principal, and to participate in
820
discussions with others when a principal is making decisions or seeking to obtain
821
information; and
822
(3) enable a supporter to assist in making and communicating decisions for a principal, but
823
not to substitute as the decision maker for a principal.
824
Section 10. Section 75-5-703 is enacted to read:
825
75-5-703 . Interpretation of part.
826
This part shall be construed and applied in accordance with the following principles:
827
(1) a principal should be able to:
828
(a) live in the manner in which the principal wishes; and
829
(b) make decisions about accepting or refusing support, assistance, or protection, as long
830
as doing so does not cause serious bodily injury, as that term is defined in Section
831
26B-5-301, to the principal, or harm to others;
832
(2) a principal should be informed about and, to the best of the principal's abilities,
833
participate in the management of the principal's affairs;
834
(3) a principal should receive the most effective, yet least restrictive and intrusive, form of
835
support, assistance, or protection when the principal is unable to manage the principal's
836
affairs alone; and
837
(4) the values, beliefs, wishes, cultural norms, and traditions that a principal holds should
838
be respected in supporting the principal.
839
Section 11. Section 75-5-704 is enacted to read:
840
75-5-704 . Supported decision-making agreement.
841
(1) Subject to Subsections (2) and (6), an individual may enter into a supported
842
decision-making agreement at any time if:
843
(a) the individual enters into the agreement voluntarily, without coercion or undue
844
influence, and without being solicited to enter into the agreement; and
845
(b) the individual understands the nature and effect of the agreement.
846
(2)(a) If the individual seeking to enter into a supported decision-making agreement has
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847
a court-appointed guardian, court-appointed conservator, or qualifying person, the
848
guardian, conservator, or qualifying person shall be given:
849
(i) notice and an opportunity to participate in all discussions related to a proposed
850
supported decision-making agreement; and
851
(ii) 14 days to review a proposed supported decision-making agreement to determine
852
whether the proposed agreement includes an area over which the guardian,
853
conservator, or qualifying person has been granted legal decision-making
854
authority.
855
(b) If a guardian, conservator, or qualifying person determines, pursuant to Subsection
856
(2)(a), that a proposed supported decision-making agreement includes an area over
857
which the guardian, conservator, or qualifying person has been granted
858
decision-making authority:
859
(i) the supported decision-making agreement is not valid without the signature of the
860
guardian, conservator, or qualifying person; and
861
(ii) the proposed supported decision-making agreement shall describe how the
862
guardian, conservator, or qualifying person will be provided timely notice of and
863
an opportunity to participate in any discussion between parties to the supported
864
decision-making agreement that relate to an area over which the guardian,
865
conservator, or qualifying person has been granted legal decision-making
866
authority.
867
(c) If a guardian, conservator, or qualifying person described in Subsection (2)(a)
868
determines that a proposed supported decision-making agreement includes an area
869
over which the guardian, conservator, or other person has not been granted legal
870
decision-making authority, nothing in this part shall be construed to:
871
(i) require that the guardian, conservator, or qualifying person be excluded from any
872
discussion relating to that area; or
873
(ii) preclude the parties to the proposed supported decision-making agreement from
874
giving the guardian, conservator, or qualifying person notice and an opportunity to
875
participate in any discussion relating to that area.
876
(3) A supported decision-making agreement shall:
877
(a) be in writing;
878
(b) state the date on which the agreement is effective;
879
(c) designate at least one supporter;
880
(d) describe:
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881
(i) how the principal uses supported decision-making to make decisions;
882
(ii) the rights of the principal;
883
(iii) the responsibilities of each supporter;
884
(iv) the decision-making supports and accommodations the principal chooses to
885
receive from each supporter;
886
(v) the types of decisions, if any, with which a supporter is not authorized to assist
887
the principal;
888
(e) include the ink or electronic signature of:
889
(i) the individual seeking to enter into the supported decision-making agreement;
890
(ii) each supporter;
891
(iii) a guardian, conservator, or qualifying person, if required under Subsection (2);
892
and
893
(iv)(A) two witnesses; or
894
(B) a notary public; and
895
(f) describe how any perceived or actual conflict of interest between a supporter and the
896
principal will be mitigated.
897
(4)(a) A supported decision-making agreement executed other than in this state is valid
898
in this state if, when the supported decision-making agreement was executed, the
899
execution complied with the law of the jurisdiction that determines the meaning and
900
effect of the supported decision-making agreement.
901
(b) The meaning and effect of a supported decision-making agreement is determined by
902
the law of the jurisdiction indicated in the supported decision-making agreement and,
903
in the absence of an indication of jurisdiction, by the law of the jurisdiction in which
904
the supported decision-making agreement was executed.
905
(5)(a) A supported decision-making agreement may include a release or other document
906
by which the principal authorizes a supporter to access the principal's confidential
907
information, subject to the terms of the supported decision-making agreement
908
described in Subsection (3) and the supporter's duties described in Section 75-5-705.
909
(b) Before a covered entity may share a principal's protected health information with a
910
supporter, the principal shall sign a HIPAA consent form authorizing release of the
911
protected health information to the supporter.
912
(c) Nothing in this part shall be construed to alter or preempt the requirements for
913
protecting health information under HIPAA.
914
(6) Each supporter shall include with the supporter's signature:
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915
(a) a description of the supporter's relationship to the principal;
916
(b) a statement of the supporter's willingness to act as a supporter;
917
(c) an acknowledgment of the supporter's duties; and
918
(d) an attestation that the supporter:
919
(i) agrees to honor the right of the principal to make decisions;
920
(ii) will not make decisions for the principal, including health care decisions; and
921
(iii) will respect and work to further the independence of the principal.
922
(7) A supported decision-making agreement may do one or more of the following:
923
(a) specify a time period for which the supported decision-making agreement is valid;
924
(b) designate more than one supporter;
925
(c) designate an alternate individual to act in the place of a supporter under
926
circumstances specified in the supported decision-making agreement; or
927
(d) authorize a supporter to share information with another supporter or other individual
928
named in the supported decision-making agreement.
929
Section 12. Section 75-5-705 is enacted to read:
930
75-5-705 . Supporter duties.
931
(1) A supporter shall:
932
(a) act with the care, competence, and diligence ordinarily exercised by individuals in
933
similar circumstances, and in accordance with the supporter's skills or expertise;
934
(b) act in good faith;
935
(c) comply with the terms of the supported decision-making agreement;
936
(d) maintain records, which the supporter shall make available to the principal upon
937
request, concerning:
938
(i) the supporter's actions under the supported decision-making agreement; and
939
(ii) how the principal communicates and expresses opinions to the supporter; and
940
(e) ensure that all information collected on behalf of the principal pursuant to the
941
supported decision-making agreement and this section is:
942
(i) kept confidential, as appropriate;
943
(ii) not subject to unauthorized access, use, or disclosure; and
944
(iii) properly disposed of when appropriate.
945
(2) Except as otherwise provided in the supported decision-making agreement or
946
Subsection (3), a supporter may, as directed by the principal:
947
(a) assist the principal in understanding information, options, responsibilities, and
948
consequences of the principal's life decisions, including decisions relating to the
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949
principal's affairs or supportive services;
950
(b) help the principal access, obtain, and understand information that is relevant to a life
951
decision, including medical, psychological, financial, or educational decisions, or any
952
treatment records or records related to the management of the principal's affairs or
953
supportive services;
954
(c) assist the principal with finding, obtaining, and making appointments for supportive
955
services, and implement the principal's plans for supportive services;
956
(d) help the principal monitor information about the principal's affairs or supportive
957
services, including tracking future necessary or recommended services;
958
(e) ascertain the wishes and decisions of the principal, assist in communicating those
959
wishes and decisions to others, and advocate to ensure that the wishes and decisions
960
of the principal are implemented; or
961
(f) assist the principal with obtaining information to which the principal is entitled.
962
(3) A supporter may not:
963
(a) coerce, exploit, exert undue influence on, or make decisions on behalf of the
964
principal;
965
(b) sign for the principal or provide an electronic signature of the principal to a third
966
party;
967
(c) make health care decisions for the principal; or
968
(d) without the principal's consent:
969
(i) obtain information that is not reasonably related to matters with which the
970
supporter is authorized to support or assist the principal pursuant to the supported
971
decision-making agreement;
972
(ii) use information acquired in connection with the supported decision-making
973
agreement for a purpose other than supporting or assisting the principal pursuant
974
to the supported decision-making agreement; or
975
(iii) delegate the supporter's duties to a third party.
976
Section 13. Section 75-5-706 is enacted to read:
977
75-5-706 . Revocation -- Withdrawal.
978
(1) A principal may revoke a supported decision-making agreement at any time by
979
providing written notice to all other parties to the agreement.
980
(2) A supporter may withdraw from a supported decision-making agreement at any time by
981
providing written notice to all other parties to the agreement.
982
(3) A written notice of revocation or withdrawal under this section may be provided by
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electronic means.
984
Section 14. Section 75-5-707 is enacted to read:
985
75-5-707 . Termination.
986
Unless otherwise provided in the supported decision-making agreement, a supported
987
decision-making agreement is terminated upon the occurrence of any of the following:
988
(1) the death of the principal;
989
(2) revocation by the principal pursuant to Section 75-5-706;
990
(3) as to a specific supporter, if the supporter is no longer qualified by reason of failure to
991
meet the requirements described in Subsection 75-5-701(14);
992
(4) withdrawal by all of the supporters pursuant to Section 75-5-706 without the
993
designation of a successor supporter;
994
(5) the principal's execution of a valid power of attorney, healthcare directive, or
995
declaration for mental health treatment, except to the extent the executed document
996
expressly continues, in whole or in part, the supported decision-making agreement; or
997
(6) a court's:
998
(a) determination that the principal does not have capacity to execute or consent to a
999
supported decision-making agreement; or
1000
(b) appointment of a temporary or permanent guardian or conservator, unless the court's
1001
order of appointment:
1002
(i) modifies but continues the supported decision-making agreement; and
1003
(ii) limits the powers and duties of the guardian.
1004
Section 15. Section 75-5-708 is enacted to read:
1005
75-5-708 . Impact of supported decision-making agreement.
1006
(1) A decision or request made or communicated by a principal with the assistance of a
1007
supporter in accordance with the terms of a supported decision-making agreement and
1008
this part shall, for the purposes of any provision of law, be recognized as the decision or
1009
request of the principal and may be enforced on the same basis as a decision or request
1010
of the principal without support.
1011
(2) The availability of a supported decision-making agreement does not limit the informal
1012
use of supported decision making, or preclude judicial consideration of informal
1013
supported decision-making arrangements as a less restrictive alternative to a
1014
guardianship or conservatorship.
1015
(3) Execution of a supported decision-making agreement may not be a condition of
1016
participating in any activity, service, or program.
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1017
(4) A court may not consider an individual's execution of a supported decision-making
1018
agreement as evidence of the individual's incapacity.
1019
(5) The existence of a supported decision-making agreement does not preclude the principal
1020
from acting independently of the supported decision-making agreement.
1021
Section 16. Section 75-5-709 is enacted to read:
1022
75-5-709 . Liability.
1023
(1) A person who is not a party to a supported decision-making agreement, including a
1024
provider of health care or financial services, that in good faith accepts or relies upon a
1025
supported decision-making agreement:
1026
(a) may presume that the signatures on the supported decision-making agreement are
1027
genuine, unless the person has actual knowledge that any signature on the supported
1028
decision-making agreement is not genuine;
1029
(b) may presume that a supported decision-making agreement is valid and that a
1030
purported supporter's authority is valid, unless the person has actual knowledge that
1031
the supported decision-making agreement or the purported supporter's authority has
1032
been revoked, terminated, or is otherwise void or invalid; and
1033
(c) is not subject to civil or criminal liability, or discipline for unprofessional conduct,
1034
for giving effect to a provision in a supported decision-making agreement, or for
1035
following the direction of a supporter given in accordance with the supported
1036
decision-making agreement.
1037
(2) If a person has reason to believe a principal is or has been the subject of abuse, neglect,
1038
or exploitation, or observes a principal being subjected to conditions or circumstances
1039
that would reasonably result in abuse, neglect, or exploitation, the person shall
1040
immediately report the suspected abuse, neglect, or exploitation to Adult Protective
1041
Services.
1042
(3) The provisions of this part may not be construed to affect mandatory reporting
1043
obligations related to abuse, neglect, or exploitation.
1044
(4) A supporter who violates this part or the terms of a supported decision-making
1045
agreement is liable to the principal or the principal's successor in interest for the amount
1046
required to restore the value of the principal's property to what it would have been had
1047
the violation not occurred.
1048
(5) A transaction between a supporter and a principal that occurs while a supported
1049
decision-making agreement is in effect, or while the supporter is in a position of trust
1050
with the principal, and from which the supporter obtains a benefit or advantage, is
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1051
voidable by the principal unless the supporter establishes that the transaction was fair to
1052
the principal.
1053
Section 17. Effective date.
1054
This bill takes effect on May 7, 2025.
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