Utah House Bill HB0334 Substitute / Bill

                    03-07 11:11	1st Sub. (Buff) H.B. 334
Keven J. Stratton proposes the following substitute bill:
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Capacity and Disability Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor: Keven J. Stratton
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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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▸ amends the definitions of "intellectual disability" and "intermediate care facility for
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people with an intellectual disability" as used in the Utah Code;
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▸ amends provisions relating to the rights and privileges to which an individual is entitled
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when under commitment to the custody or to the treatment services of a local mental
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health authority;
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▸ provides that if a right of a patient of a local mental health authority is limited or denied,
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including for the welfare of the patient or caretakers, the nature, extent, and reason for
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that limitation or denial shall be entered in the patient's treatment record;
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▸ requires a designated examiner to conduct an examination of a proposed patient by
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telehealth except in certain circumstances;
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▸ requires a court to hold a hearing on an application for involuntary commitment remotely
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unless the court finds good cause not to hold the hearing remotely;
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▸ amends standards and processes related to the involuntary civil commitment of an
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individual with an intellectual disability or related condition;
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▸ provides that a court may only order the Department of Health and Human Services
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(department) to provide an initial evaluation and progress toward competency evaluation
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for a defendant or minor if the defendant or minor is located within the state;
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▸ requires a court to dismiss a petition for involuntary civil commitment if both designated
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examiners determine that the proposed patient does not meet the criteria for involuntary
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commitment;
1st Sub. H.B. 334 1st Sub. (Buff) H.B. 334	03-07 11:11
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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;
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▸ provides that when there is a conflict in the opinion of forensic evaluators, if a party seeks
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an additional competency evaluation then the party is responsible for selecting the
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evaluator and paying the cost of the evaluator;
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▸ amends provisions regarding the release of a defendant determined to be incompetent to
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proceed from a secure setting;
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▸ addresses when the department is required to provide an updated juvenile competency
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evaluation after an extended attainment period; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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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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26B-2-121, as renumbered and amended by Laws of Utah 2023, Chapter 305
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26B-2-122, as last amended by Laws of Utah 2024, Chapter 240
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26B-5-301, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-5-310, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-5-322, as last amended by Laws of Utah 2023, Chapter 184 and renumbered and
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amended by Laws of Utah 2023, Chapter 308
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26B-5-332, as last amended by Laws of Utah 2024, Chapters 287, 299 and 314
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26B-5-362, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-5-371, as last amended by Laws of Utah 2023, Chapter 184 and renumbered and
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amended by Laws of Utah 2023, Chapter 308
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26B-6-401, as last amended by Laws of Utah 2024, Chapter 240
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26B-6-606, as renumbered and amended by Laws of Utah 2023, Chapter 308
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26B-6-607, as last amended by Laws of Utah 2024, Chapter 299
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26B-6-608, as last amended by Laws of Utah 2024, Chapter 299
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26B-6-613, as renumbered and amended by Laws of Utah 2023, Chapter 308
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63I-2-275, as last amended by Laws of Utah 2024, Third Special Session, Chapter 5
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68-3-12.5, as last amended by Laws of Utah 2024, Chapter 438
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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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77-15-2, as last amended by Laws of Utah 2023, Chapter 171
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77-15-5, as last amended by Laws of Utah 2023, Chapters 171, 417 and last amended by
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Coordination Clause, Laws of Utah 2023, Chapter 417
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77-15-6, as last amended by Laws of Utah 2024, Chapter 174
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77-19-203, as enacted by Laws of Utah 2004, Chapter 137
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77-29-3, as enacted by Laws of Utah 1980, Chapter 15
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80-6-402, as last amended by Laws of Utah 2023, Chapter 330
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80-6-403, as last amended by Laws of Utah 2023, Chapter 330
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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 26B-2-121 is amended to read:
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26B-2-121 . Access to abuse and neglect information.
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(1) As used in this section:
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(a) "Direct service worker" means the same as that term is defined in Section 26B-6-401.
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(b) "Personal care attendant" means the same as that term is defined in Section [
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26B-6-401] 26B-6-101.
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(2) With respect to a licensee, a direct service worker, or a personal care attendant, the
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department may access only the Licensing Information System of the Division of Child
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and Family Services created by Section 80-2-1002 and juvenile court records under
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Subsection 80-3-404(4), for the purpose of:
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(a)(i) determining whether a person associated with a licensee, with direct access to
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children:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); and
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(ii) informing a licensee that a person associated with the licensee:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2);
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(b)(i) determining whether a direct service worker:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); and
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(ii) informing a direct service worker or the direct service worker's employer that the
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direct service worker:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); or
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(c)(i) determining whether a personal care attendant:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2); and
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(ii) informing a person described in Subsections 26B-6-101(9)(a)(i) through (iv) that
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a personal care attendant:
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(A) is listed in the Licensing Information System; or
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(B) has a substantiated finding by a juvenile court of a severe type of child abuse
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or neglect under Subsections 80-3-404(1) and (2).
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(3) Notwithstanding Subsection (2), the department may access the Division of Child and
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Family Services' Management Information System under Section 80-2-1001:
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(a) for the purpose of licensing and monitoring foster parents;
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(b) for the purposes described in Subsection 80-2-1001(5)(b)(iii); and
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(c) for the purpose described in Section 26B-1-211.
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(4) The department shall receive and process personal identifying information under
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Subsection 26B-2-120(1) for the purposes described in Subsection (2).
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(5) The department shall adopt rules under Title 63G, Chapter 3, Utah Administrative
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Rulemaking Act, consistent with this part, defining the circumstances under which a
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person may have direct access or provide services to children when:
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(a) the person is listed in the Licensing Information System of the Division of Child and
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Family Services created by Section 80-2-1002; or
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(b) juvenile court records show that a court made a substantiated finding under Section
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80-3-404, that the person committed a severe type of child abuse or neglect.
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Section 3.  Section 26B-2-122 is amended to read:
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26B-2-122 . Access to vulnerable adult abuse and neglect information.
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(1) For purposes of this section:
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(a) "Direct service worker" means the same as that term is defined in Section 26B-6-401.
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(b) "Personal care attendant" means the same as that term is defined in Section [
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26B-6-401] 26B-6-101.
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(2) With respect to a licensee, a direct service worker, or a personal care attendant, the
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department may access the database created by Section 26B-6-210 for the purpose of:
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(a)(i) determining whether a person associated with a licensee, with direct access to
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vulnerable adults, has a supported or substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; and
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(ii) informing a licensee that a person associated with the licensee has a supported or
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substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation;
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(b)(i) determining whether a direct service worker has a supported or substantiated
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finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; and
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(ii) informing a direct service worker or the direct service worker's employer that the
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direct service worker has a supported or substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; or
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(c)(i) determining whether a personal care attendant has a supported or substantiated
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finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation; and
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(ii) informing a person described in Subsections 26B-6-401(9)(a)(i) through (iv) that
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a personal care attendant has a supported or substantiated finding of:
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(A) abuse;
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(B) neglect; or
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(C) exploitation.
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(3) The department shall receive and process personal identifying information under
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Subsection 26B-2-120(2) for the purposes described in Subsection (2).
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(4) The department shall adopt rules under Title 63G, Chapter 3, Utah Administrative
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Rulemaking Act, consistent with this part and Chapter 6, Part 2, Abuse, Neglect, or
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Exploitation of a Vulnerable Adult, defining the circumstances under which a person
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may have direct access or provide services to vulnerable adults when the person is listed
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in the statewide database of the Division of Aging and Adult Services created by Section
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26B-6-210 as having a supported or substantiated finding of abuse, neglect, or
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exploitation.
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Section 4.  Section 26B-5-301 is amended to read:
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26B-5-301 . Definitions.
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      As used in this part, Part 4, Commitment of Persons Under Age 18, and Part 5, Essential
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Treatment and Intervention:
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(1) "Adult" means an individual 18 years old or older.
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(2) "Approved treatment facility or program" means a mental health or substance use
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treatment provider that meets the goals and measurements described in Subsection
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26B-5-102(2)(j).
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(3) "Assisted outpatient treatment" means involuntary outpatient mental health treatment
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ordered under Section 26B-5-351.
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(4) "Attending physician" means a physician licensed to practice medicine in this state who
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has primary responsibility for the care and treatment of the declarant.
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(5) "Attorney-in-fact" means an adult properly appointed under this part to make mental
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health treatment decisions for a declarant under a declaration for mental health treatment.
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(6) "Commitment to the custody of a local mental health authority" means that an adult is
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committed to the custody of the local mental health authority that governs the mental
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health catchment area where the adult resides or is found.
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(7) "Community mental health center" means an entity that provides treatment and services
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to a resident of a designated geographical area, that operates by or under contract with a
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local mental health authority, and that complies with state standards for community
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mental health centers.
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(8) "Designated examiner" means:
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(a) a licensed physician, preferably a psychiatrist, who is designated by the division as
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specially qualified by training or experience in the diagnosis of mental or related
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illness; or
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(b) a licensed mental health professional designated by the division as specially qualified
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by training and who has at least five years' continual experience in the treatment of
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mental illness.
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(9) "Designee" means a physician who has responsibility for medical functions including
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admission and discharge, an employee of a local mental health authority, or an employee
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of a person that has contracted with a local mental health authority to provide mental
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health services under Section 17-43-304.
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(10) "Essential treatment" and "essential treatment and intervention" mean court-ordered
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treatment at a local substance abuse authority or an approved treatment facility or
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program for the treatment of an adult's substance use disorder.
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(11) "Harmful sexual conduct" means the following conduct upon an individual without the
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individual's consent, including the nonconsensual circumstances described in
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Subsections 76-5-406(2)(a) through (l):
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(a) sexual intercourse;
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(b) penetration, however slight, of the genital or anal opening of the individual;
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(c) any sexual act involving the genitals or anus of the actor or the individual and the
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mouth or anus of either individual, regardless of the gender of either participant; or
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(d) any sexual act causing substantial emotional injury or bodily pain.
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(12) "Informed waiver" means the patient was informed of a right and, after being informed
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of that right and the patient's right to waive the right, expressly communicated his or her
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intention to waive that right.
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(13) "Incapable" means that, in the opinion of the court in a guardianship proceeding under
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Title 75, Utah Uniform Probate Code, or in the opinion of two physicians, a person's
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ability to receive and evaluate information effectively or communicate decisions is
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impaired to such an extent that the person currently lacks the capacity to make mental
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health treatment decisions.
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(14) "Institution" means a hospital or a health facility licensed under Section 26B-2-206.
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(15) "Lay person" means an individual identified and authorized by a patient to participate
338 
in activities related to the patient's commitment, including court appearances, discharge
339 
planning, and grievances, except that a patient may revoke a lay person's authorization at
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any time.
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(16) "Local substance abuse authority" means the same as that term is defined in Section
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26B-5-101 and described in Section 17-43-201.
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[(16)] (17) "Mental health facility" means the Utah State Hospital or other facility that
344 
provides mental health services under contract with the division, a local mental health
345 
authority, a person that contracts with a local mental health authority, or a person that
346 
provides acute inpatient psychiatric services to a patient.
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[(17)] (18) "Mental health officer" means an individual who is designated by a local mental
348 
health authority as qualified by training and experience in the recognition and
349 
identification of mental illness, to:
350 
(a) apply for and provide certification for a temporary commitment; or
351 
(b) assist in the arrangement of transportation to a designated mental health facility.
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[(18)] (19) "Mental illness" means:
353 
(a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
354 
behavioral, or related functioning; or
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(b) the same as that term is defined in:
356 
(i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
357 
published by the American Psychiatric Association; or
358 
(ii) the current edition of the International Statistical Classification of Diseases and
359 
Related Health Problems.
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[(19)] (20) "Mental health treatment" means convulsive treatment, treatment with
361 
psychoactive medication, or admission to and retention in a facility for a period not to
362 
exceed 17 days.
363 
[(20)] (21) "Patient" means an individual who is:
364 
(a) under commitment to the custody or to the treatment services of a local mental health
365 
authority; or
366 
(b) undergoing essential treatment and intervention.
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[(21)] (22) "Physician" means an individual who is:
368 
(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
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(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
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Practice Act.
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[(22)] (23) "Serious bodily injury" means bodily injury that involves a substantial risk of
372 
death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
373 
protracted loss or impairment of the function of a bodily member, organ, or mental
374 
faculty.
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[(23)] (24) "State hospital" means the Utah State Hospital established in Section 26B-5-302.
376 
[(24)] (25) "Substantial danger" means that due to mental illness, an individual is at serious
377 
risk of:
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(a) suicide;
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(b) serious bodily self-injury;
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(c) serious bodily injury because the individual is incapable of providing the basic
381 
necessities of life, including food, clothing, or shelter;
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(d) causing or attempting to cause serious bodily injury to another individual;
383 
(e) engaging in harmful sexual conduct; or
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(f) if not treated, suffering severe and abnormal mental, emotional, or physical distress
385 
that:
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(i) is associated with significant impairment of judgment, reason, or behavior; and
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(ii) causes a substantial deterioration of the individual's previous ability to function
388 
independently.
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[(25)] (26) "Treatment" means psychotherapy, medication, including the administration of
390 
psychotropic medication, or other medical treatments that are generally accepted
391 
medical or psychosocial interventions for the purpose of restoring the patient to an
392 
optimal level of functioning in the least restrictive environment.
393 
Section 5.  Section 26B-5-310 is amended to read:
394 
26B-5-310 . Restrictions and limitations -- Rights and privileges.
395 
(1) Subject to the general rules of the division, subject to the requirement in Subsection (2)
396 
that the reason, nature, and extent of any limitation or denial of a patient's right shall be
397 
entered in the patient's treatment record, and except to the extent that the director or [his] 
398 
the director's designee determines that it is necessary for the welfare of the patient or the
399 
patient's caretakers to impose restrictions, every patient is entitled to:
400 
(a)(i) communicate, by sealed mail or otherwise, with persons, including official
401 
agencies, inside or outside the [facility] responsible mental health authority, local
402 
substance abuse authority, or approved treatment facility or program;
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(ii) be provided with letter-writing materials, including postage; and
404 
(iii) have staff of the responsible mental health authority, local substance abuse
405 
authority, or approved treatment facility or program assist the patient if the patient
406 
is unable to write, prepare, or mail correspondence;
407 
(b) have frequent and consistent opportunities to receive visitors[; and]  at reasonable
408 
times that do not interfere with clinical activities;
409 
(c) speak or visit with the patient's attorney or clergy member within a reasonable period
410 
of time;
411 
(d) exercise all civil rights, including the right to dispose of property, execute
412 
instruments, make purchases, enter contractual relationships, and vote, unless the
413 
patient has been adjudicated to be incompetent and has not been restored to legal
414 
capacity[.] ;
415 
(e) while in an inpatient or residential facility, have access to adequate water and food
416 
and have the patient's nutritional needs met in a manner that is consistent with
417 
recognized dietary practices;
418 
(f) be treated fairly, with respect and recognition of the patient's dignity and
419 
individuality;
420 
(g) not be discriminated against on the basis of a characteristic identified in Subsection
421 
57-21-5(1);
422 
(h) within 72 business hours after the patient's request, see and receive the services of a
423 
patient representative, including a peer specialist or patient advocate, who is not
424 
involved in the direct clinical care of the patient;
425 
(i) have the patient's behavioral health orders for scope of treatment, declaration for
426 
mental health treatment, or other psychiatric advance directive reviewed and
427 
considered as the preferred treatment option for involuntary administration of
428 
medications by the responsible local mental health authority, local substance abuse
429 
authority, or approved treatment facility or program, unless by clear and convincing
430 
evidence the patient's directive does not qualify as effective participation in
431 
behavioral health decision-making;
432 
(j) with the patient's consent, have the patient's information or records disclosed to an
433 
adult family member, the patient's lay person, or, in accordance with state and federal
434 
law, to a protection and advocacy system designated pursuant to 42 U.S.C. Sec.
435 
10801 et seq.;
436 
(k)(i) access to a telephone to make and receive private calls, unless determined a
- 13 - 1st Sub. (Buff) H.B. 334	03-07 11:11
437 
clinical or safety risk; and
438 
(ii) staff assistance to be able to communicate with others, if the patient does not have
439 
a contact list;
440 
(l) wear the patient's own clothes, keep and use the patient's own possessions, and keep
441 
and be allowed to spend a reasonable amount of the patient's own money, unless
442 
deemed a clinical or safety risk; and
443 
(m) be told:
444 
(i) the reason for the patient's detainment and the limitation of the patient's
445 
detainment, including a description of the patient's right to refuse medication
446 
unless the patient requires emergency medications; and
447 
(ii) that the patient's commitment does not mean all treatment during commitment is
448 
mandatory.
449 
(2)(a) When any right of a patient is limited or denied, the nature, extent, and reason for
450 
that limitation or denial shall be entered in the patient's treatment record.
451 
(b) Information pertaining to a denial of any right of a patient shall be made available,
452 
upon request, to the patient, the patient's attorney, and the patient's lay person.
453 
(c) Any continuing denial or limitation of any right of a patient shall be reviewed every
454 
30 days and shall also be entered in [that] the patient's treatment record.
455 
(d) Notice of [that] a continuing denial of any right of a patient in excess of 30 days shall
456 
be sent to the division, the [appropriate] responsible local mental health authority, the
457 
appropriate local substance abuse authority, or an approved treatment facility or
458 
program[, whichever is most applicable to the patient].
459 
[(3) Notwithstanding any limitations authorized under this section on the right of
460 
communication, each patient is entitled to communicate by sealed mail with the
461 
appropriate local mental health authority, the appropriate local substance abuse
462 
authority, an approved treatment facility or program, the division, the patient's attorney,
463 
and the court, if any, that ordered the patient's commitment or essential treatment. In no
464 
case may the patient be denied a visit with the legal counsel or clergy of the patient's
465 
choice.]
466 
[(4)] (3) Local mental health authorities, local substance abuse authorities, and approved
467 
treatment facilities or programs shall provide reasonable means and arrangements for
468 
informing involuntary patients of their right to release as provided in this chapter, and
469 
for assisting them in making and presenting requests for release.
470 
[(5)] (4) [Mental] Local mental health facilities, local substance abuse authorities, and
- 14 - 03-07 11:11	1st Sub. (Buff) H.B. 334
471 
approved treatment facilities or programs shall post a statement, created by the division,
472 
describing a patient's rights under Utah law.
473 
[(6)] (5) A local mental health authority, local substance abuse authority, or approved
474 
treatment facility or program may not intentionally retaliate or discriminate against a
475 
detained patient or employee for contacting or providing information to any official or to
476 
an employee of any state protection and advocacy agency or for initiating, participating
477 
in, or testifying in a grievance procedure or in an action for any remedy authorized
478 
pursuant to this section.
479 
(6) Notwithstanding Section 53B-17-303, an individual committed under this chapter has
480 
the right to determine the final disposition of that individual's body after death.
481 
Section 6.  Section 26B-5-322 is amended to read:
482 
26B-5-322 . Criminal's escape -- Penalty.
483 
      Any person committed to the state hospital under the provisions of [Title 77, Chapter 15,
484 
Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
485 
Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition, who escapes
486 
or leaves the state hospital without proper legal authority is guilty of a class A misdemeanor.
487 
Section 7.  Section 26B-5-332 is amended to read:
488 
26B-5-332 . Involuntary commitment under court order -- Examination --
489 
Hearing -- Power of court -- Findings required -- Costs.
490 
(1) A responsible individual who has credible knowledge of an adult's mental illness and
491 
the condition or circumstances that have led to the adult's need to be involuntarily
492 
committed may initiate an involuntary commitment court proceeding by filing, in the
493 
court in the county where the proposed patient resides or is found, a written application
494 
that includes:
495 
(a) unless the court finds that the information is not reasonably available, the proposed
496 
patient's:
497 
(i) name;
498 
(ii) date of birth; and
499 
(iii) social security number;
500 
(b)(i) a certificate of a licensed physician or a designated examiner stating that within
501 
the seven-day period immediately preceding the certification, the physician or
502 
designated examiner examined the proposed patient and is of the opinion that the
503 
proposed patient has a mental illness and should be involuntarily committed; or
504 
(ii) a written statement by the applicant that:
- 15 - 1st Sub. (Buff) H.B. 334	03-07 11:11
505 
(A) the proposed patient has been requested to, but has refused to, submit to an
506 
examination of mental condition by a licensed physician or designated
507 
examiner;
508 
(B) is sworn to under oath; and
509 
(C) states the facts upon which the application is based; and
510 
(c) a statement whether the proposed patient has previously been under an assisted
511 
outpatient treatment order, if known by the applicant.
512 
(2) Before issuing a judicial order, the court:
513 
(a) shall require the applicant to consult with the appropriate local mental health
514 
authority at or before the hearing; and
515 
(b) may direct a mental health professional from the local mental health authority to
516 
interview the applicant and the proposed patient to determine the existing facts and
517 
report the existing facts to the court.
518 
(3) The court may issue an order, directed to a mental health officer or peace officer, to
519 
immediately place a proposed patient in the custody of a local mental health authority or
520 
in a temporary emergency facility, as described in Section 26B-5-334, to be detained for
521 
the purpose of examination if:
522 
(a) the court finds from the application, any other statements under oath, or any reports
523 
from a mental health professional that there is a reasonable basis to believe that the
524 
proposed patient has a mental illness that poses a danger to self or others and requires
525 
involuntary commitment pending examination and hearing; or
526 
(b) the proposed patient refuses to submit to an interview with a mental health
527 
professional as directed by the court or to go to a treatment facility voluntarily.
528 
(4)(a) The court shall provide notice of commencement of proceedings for involuntary
529 
commitment, setting forth the allegations of the application and any reported facts,
530 
together with a copy of any official order of detention, to a proposed patient before,
531 
or upon, placement of the proposed patient in the custody of a local mental health
532 
authority or, with respect to any proposed patient presently in the custody of a local
533 
mental health authority whose status is being changed from voluntary to involuntary,
534 
upon the filing of an application for that purpose with the court.
535 
(b) The place of detention shall maintain a copy of the order of detention.
536 
(5)(a) The court shall provide notice of commencement of proceedings for involuntary
537 
commitment as soon as practicable to the applicant, any legal guardian, any
538 
immediate adult family members, legal counsel for the parties involved, the local
- 16 - 03-07 11:11	1st Sub. (Buff) H.B. 334
539 
mental health authority or the local mental health authority's designee, and any other
540 
persons whom the proposed patient or the court designates.
541 
(b) Except as provided in Subsection (5)(c), the notice under Subsection (5)(a) shall
542 
advise the persons that a hearing may be held within the time provided by law.
543 
(c) If the proposed patient refuses to permit release of information necessary for
544 
provisions of notice under this subsection, the court shall determine the extent of
545 
notice.
546 
(6) Proceedings for commitment of an individual under 18 years old to a local mental health
547 
authority may be commenced in accordance with Part 4, Commitment of Persons Under
548 
Age 18.
549 
(7)(a) The court may, in the court's discretion, transfer the case to any other district court
550 
within this state, if the transfer will not be adverse to the interest of the proposed
551 
patient.
552 
(b) If a case is transferred under Subsection (7)(a), the parties to the case may be
553 
transferred and the local mental health authority may be substituted in accordance
554 
with Utah Rules of Civil Procedure, Rule 25.
555 
(8) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance of a
556 
judicial order, or after commitment of a proposed patient to a local mental health
557 
authority or the local mental health authority's designee under court order for detention
558 
or examination, the court shall appoint two designated examiners:
559 
(a) who did not sign the civil commitment application nor the civil commitment
560 
certification under Subsection (1);
561 
(b) one of whom is:
562 
(i) a licensed physician; or
563 
(ii) a psychiatric mental health nurse practitioner or a psychiatric mental health
564 
clinical nurse specialist who:
565 
(A) is nationally certified;
566 
(B) is doctorally trained; and
567 
(C) has at least two years of inpatient mental health experience, regardless of the
568 
license the individual held at the time of that experience; and
569 
(c) one of whom may be designated by the proposed patient or the proposed patient's
570 
counsel, if that designated examiner is reasonably available.
571 
(9) The court shall schedule a hearing to be held within 10 calendar days after the day on
572 
which the designated examiners are appointed.
- 17 - 1st Sub. (Buff) H.B. 334	03-07 11:11
573 
(10)(a) The designated examiners shall[:]
574 
[(i)]   conduct the examinations separately[;] .
575 
[(ii)] (b) [conduct the examinations at the home of the proposed patient, at a hospital or
576 
other medical facility, or at any other suitable place, including] The designated
577 
examiners shall conduct the examinations:
578 
(i) through telehealth[,]  unless the designated examiner determines that:
579 
(A) a telehealth examination would not be sufficient to properly assess the
580 
proposed patient;
581 
(B) a telehealth examination would have a harmful effect on the proposed patient's
582 
health; or
583 
(C) an in-person examination can be conducted as effectively, conveniently, and
584 
timely as an examination through telehealth; and
585 
(ii) if the designated examiner determines, pursuant to Subsection (10)(b)(i), that the
586 
examination should be conducted in person, at the home of the proposed patient,
587 
at a hospital or other medical facility, or at any other suitable place that is not
588 
likely to have a harmful effect on the proposed patient's health[;] .
589 
[(iii)] (c) The designated examiners shall inform the proposed patient, if not represented
590 
by an attorney:
591 
[(A)] (i) that the proposed patient does not have to say anything;
592 
[(B)] (ii) of the nature and reasons for the examination;
593 
[(C)] (iii) that the examination was ordered by the court;
594 
[(D)] (iv) that any information volunteered could form part of the basis for the
595 
proposed patient's involuntary commitment;
596 
[(E)] (v) that findings resulting from the examination will be made available to the
597 
court; and
598 
[(F)] (vi) that the designated examiner may, under court order, obtain the proposed
599 
patient's mental health records[; and] .
600 
[(iv)] (d) [within] Within 24 hours of examining the proposed patient, a designated
601 
examiner shall report to the court, orally or in writing, whether the proposed patient
602 
is mentally ill, has agreed to voluntary commitment, as described in Section
603 
26B-5-360, or has acceptable programs available to the proposed patient without
604 
court proceedings.
605 
[(b)] (e) If a designated examiner reports orally under Subsection [(10)(a)] (10)(d), the
606 
designated examiner shall immediately send a written report to the clerk of the court.
- 18 - 03-07 11:11	1st Sub. (Buff) H.B. 334
607 
(11) If a designated examiner is unable to complete an examination on the first attempt
608 
because the proposed patient refuses to submit to the examination, the court shall fix a
609 
reasonable compensation to be paid to the examiner.
610 
(12) If the local mental health authority, the local mental health authority's designee, or a
611 
medical examiner determines before the court hearing that the conditions justifying the
612 
findings leading to a commitment hearing no longer exist, the local mental health
613 
authority, the local mental health authority's designee, or the medical examiner shall
614 
immediately report the determination to the court.
615 
(13)(a) The court shall terminate the proceedings and dismiss the application before the
616 
hearing if both designated examiners inform the court that the proposed patient does
617 
not meet the criteria in Subsection (16).
618 
(b) The court may terminate the proceedings and dismiss the application at any time,
619 
including before the hearing, if the designated examiners or the local mental health
620 
authority or the local mental health authority's designee informs the court that the
621 
proposed patient:
622 
[(a) does not meet the criteria in Subsection (16);]
623 
[(b)] (i) has agreed to voluntary commitment, as described in Section 26B-5-360;
624 
[(c)] (ii) has acceptable options for treatment programs that are available without
625 
court proceedings; or
626 
[(d)] (iii) meets the criteria for assisted outpatient treatment described in Section
627 
26B-5-351.
628 
(14)(a) Before the hearing, the court shall provide the proposed patient an opportunity to
629 
be represented by counsel, and if neither the proposed patient nor others provide
630 
counsel, the court shall appoint counsel and allow counsel sufficient time to consult
631 
with the proposed patient before the hearing.
632 
(b) In the case of an indigent proposed patient, the county in which the proposed patient
633 
resides or is found shall make payment of reasonable attorney fees for counsel, as
634 
determined by the court.
635 
(15)(a)(i) The court shall afford the proposed patient, the applicant, and any other
636 
person to whom notice is required to be given an opportunity to appear at the
637 
hearing, to testify, and to present and cross-examine witnesses.
638 
(ii) The court may, in the court's discretion, receive the testimony of any other person.
639 
(iii) The court may allow a waiver of the proposed patient's right to appear for good
640 
cause, which cause shall be set forth in the record, or an informed waiver by the
- 19 - 1st Sub. (Buff) H.B. 334	03-07 11:11
641 
patient, which shall be included in the record.
642 
(b) The court is authorized to exclude any person not necessary for the conduct of the
643 
proceedings and may, upon motion of counsel, require the testimony of each
644 
designated examiner to be given out of the presence of any other designated
645 
examiners.
646 
(c) The court shall:
647 
(i) conduct the hearing in as informal a manner as may be consistent with orderly
648 
procedure[, and] ; and
649 
(ii) while preserving the due process rights of the proposed patient:
650 
(A) conduct the hearing remotely, in accordance with Utah Rules of Civil
651 
Procedure, Rule 87, unless the court finds good cause under Rule 87 not to
652 
conduct the hearing remotely; or
653 
(B) if the court finds good cause under Rule 87 not to conduct the hearing
654 
remotely, conduct the hearing in a physical setting that is not likely to have a
655 
harmful effect on the mental health of the proposed patient[, while preserving
656 
the due process rights of the proposed patient].
657 
(d) The court shall consider any relevant historical and material information that is
658 
offered, subject to the rules of evidence, including reliable hearsay under Utah Rules
659 
of Evidence, Rule 1102.
660 
(e)(i) A local mental health authority or the local mental health authority's designee
661 
or the physician in charge of the proposed patient's care shall, at the time of the
662 
hearing, provide the court with the following information:
663 
(A) the detention order;
664 
(B) admission notes;
665 
(C) the diagnosis;
666 
(D) any doctors' orders;
667 
(E) progress notes;
668 
(F) nursing notes;
669 
(G) medication records pertaining to the current commitment; and
670 
(H) whether the proposed patient has previously been civilly committed or under
671 
an order for assisted outpatient treatment.
672 
(ii) The local mental health authority or the local mental health authority's designee
673 
or the physician in charge of the proposed patient's care shall also supply the
674 
information described in Subsection (15)(e)(i) [shall also be supplied ]to the
- 20 - 03-07 11:11	1st Sub. (Buff) H.B. 334
675 
proposed patient's counsel at the time of the hearing, and at any time prior to the
676 
hearing upon request by the proposed patient's counsel.
677 
(16)(a) The court shall order commitment of an adult proposed patient to a local mental
678 
health authority if, upon completion of the hearing and consideration of the
679 
information presented, the court finds by clear and convincing evidence that:
680 
(i)(A) the proposed patient has a mental illness;
681 
(B) because of the proposed patient's mental illness the proposed patient poses a
682 
substantial danger to self or others;
683 
(C) the proposed patient lacks the ability to engage in a rational decision-making
684 
process regarding the acceptance of mental treatment as demonstrated by
685 
evidence of inability to weigh the possible risks of accepting or rejecting
686 
treatment;
687 
(D) there is no appropriate less-restrictive alternative to a court order of
688 
commitment; and
689 
(E) the local mental health authority can provide the proposed patient with
690 
treatment that is adequate and appropriate to the proposed patient's conditions
691 
and needs; or
692 
(ii)(A) the proposed patient has been charged with a criminal offense;
693 
(B) with respect to the charged offense, the proposed patient is found incompetent
694 
to proceed as a result of a mental illness;
695 
(C) the proposed patient has a mental illness;
696 
(D) the proposed patient has a persistent unawareness of their mental illness and
697 
the negative consequences of that illness, or within the preceding six months
698 
has been requested or ordered to undergo mental health treatment but has
699 
unreasonably refused to undergo that treatment;
700 
(E) there is no appropriate less-restrictive alternative to a court order of
701 
commitment; and
702 
(F) the local mental health authority can provide the proposed patient with
703 
treatment that is adequate and appropriate to the proposed patient's conditions
704 
and needs.
705 
(b)(i) If, at the hearing, the court determines that the proposed patient has a mental
706 
illness but does not meet the other criteria described in Subsection (16)(a), the
707 
court may consider whether the proposed patient meets the criteria for assisted
708 
outpatient treatment under Section 26B-5-351.
- 21 - 1st Sub. (Buff) H.B. 334	03-07 11:11
709 
(ii) The court may order the proposed patient to receive assisted outpatient treatment
710 
in accordance with Section 26B-5-351 if, at the hearing, the court finds the
711 
proposed patient meets the criteria for assisted outpatient treatment under Section
712 
26B-5-351.
713 
(iii) If the court determines that neither the criteria for commitment under Subsection
714 
(16)(a) nor the criteria for assisted outpatient treatment under Section 26B-5-351
715 
are met, the court shall dismiss the proceedings after the hearing.
716 
(17)(a)(i) The order of commitment shall designate the period for which the patient
717 
shall be treated.
718 
(ii) If the patient is not under an order of commitment at the time of the hearing, the
719 
patient's treatment period may not exceed six months without a review hearing.
720 
(iii) Upon a review hearing, to be commenced before the expiration of the previous
721 
order of commitment, an order for commitment may be for an indeterminate
722 
period, if the court finds by clear and convincing evidence that the criteria
723 
described in Subsection (16) will last for an indeterminate period.
724 
(b)(i) The court shall maintain a current list of all patients under the court's order of
725 
commitment and review the list to determine those patients who have been under
726 
an order of commitment for the court designated period.
727 
(ii) At least two weeks before the expiration of the designated period of any order of
728 
commitment still in effect, the court that entered the original order of commitment
729 
shall inform the appropriate local mental health authority or the local mental
730 
health authority's designee of the expiration.
731 
(iii) Upon receipt of the information described in Subsection (17)(b)(ii), the local
732 
mental health authority or the local mental health authority's designee shall
733 
immediately reexamine the reasons upon which the order of commitment was
734 
based.
735 
(iv) If, after reexamination under Subsection (17)(b)(iii), the local mental health
736 
authority or the local mental health authority's designee determines that the
737 
conditions justifying commitment no longer exist, the local mental health
738 
authority or the local mental health authority's designee shall discharge the patient
739 
from involuntary commitment and immediately report the discharge to the court.
740 
(v) If, after reexamination under Subsection (17)(b)(iii), the local mental health
741 
authority or the local mental health authority's designee determines that the
742 
conditions justifying commitment continue to exist, the court shall immediately
- 22 - 03-07 11:11	1st Sub. (Buff) H.B. 334
743 
appoint two designated examiners and proceed under Subsections (8) through (14).
744 
(c)(i) The local mental health authority or the local mental health authority's designee
745 
responsible for the care of a patient under an order of commitment for an
746 
indeterminate period shall, at six-month intervals, reexamine the reasons upon
747 
which the order of indeterminate commitment was based.
748 
(ii) If the local mental health authority or the local mental health authority's designee
749 
determines that the conditions justifying commitment no longer exist, the local
750 
mental health authority or the local mental health authority's designee shall
751 
discharge the patient from the local mental health authority's or the local mental
752 
health authority designee's custody and immediately report the discharge to the
753 
court.
754 
(iii) If the local mental health authority or the local mental health authority's designee
755 
determines that the conditions justifying commitment continue to exist, the local
756 
mental health authority or the local mental health authority's designee shall send a
757 
written report of the findings to the court.
758 
(iv) [A] The local mental health authority or the local mental health authority's
759 
designee shall notify the patient and the patient's counsel of record [shall be
760 
notified ]in writing that the involuntary commitment will be continued under
761 
Subsection (17)(c)(iii), the reasons for the decision to continue, and that the
762 
patient has the right to a review hearing by making a request to the court.
763 
(v) Upon receiving a request under Subsection (17)(c)(iv), the court shall
764 
immediately appoint two designated examiners and proceed under Subsections (8)
765 
through (14).
766 
(18)(a) Any patient committed as a result of an original hearing or a patient's legally
767 
designated representative who is aggrieved by the findings, conclusions, and order of
768 
the court entered in the original hearing has the right to a new hearing upon filing a
769 
petition [filed ]with the court within 30 days after the day on which the court entered
770 
the order[ is entered].
771 
(b) The petition shall allege error or mistake in the findings, in which case the court shall
772 
appoint three impartial designated examiners previously unrelated to the case to
773 
conduct an additional examination of the patient.
774 
(c) Except as provided in Subsection (18)(b), the court shall, in all other respects,
775 
conduct the new hearing in the manner otherwise permitted.
776 
(19) The county in which the proposed patient resides or is found shall pay the costs of all
- 23 - 1st Sub. (Buff) H.B. 334	03-07 11:11
777 
proceedings under this section.
778 
(20)(a) A local mental health authority shall provide discharge instructions to each
779 
individual committed under this section at or before the time the individual is
780 
discharged from the local mental health authority's custody, regardless of the
781 
circumstances under which the individual is discharged.
782 
(b) Discharge instructions provided under Subsection (20)(a) shall include:
783 
(i) a summary of why the individual was committed to the local mental health
784 
authority;
785 
(ii) detailed information about why the individual is being discharged from the local
786 
mental health authority's custody;
787 
(iii) a safety plan for the individual based on the individual's mental illness or mental
788 
or emotional state;
789 
(iv) notification to the individual's primary care provider, if applicable;
790 
(v) if the individual is discharged without food, housing, or economic security, a
791 
referral to appropriate services, if such services exist in the individual's
792 
community;
793 
(vi) the phone number to call or text for a crisis services hotline, and information
794 
about the availability of peer support services;
795 
(vii) a copy of any psychiatric advance directive presented to the local mental health
796 
authority, if applicable;
797 
(viii) information about how to establish a psychiatric advance directive if one was
798 
not presented to the local mental health authority;
799 
(ix) as applicable, information about medications that were changed or discontinued
800 
during the commitment;
801 
(x) a list of any screening or diagnostic tests conducted during the commitment;
802 
(xi) a summary of therapeutic treatments provided during the commitment;
803 
(xii) any laboratory work, including blood samples or imaging, that was completed or
804 
attempted during the commitment; and
805 
(xiii) information about how to contact the local mental health authority if needed.
806 
(c) If an individual's medications were changed, or if an individual was prescribed new
807 
medications while committed under this section, discharge instructions provided
808 
under Subsection (20)(a) shall include a clinically appropriate supply of medications,
809 
as determined by a licensed health care provider, to allow the individual time to
810 
access another health care provider or follow-up appointment.
- 24 - 03-07 11:11	1st Sub. (Buff) H.B. 334
811 
(d) If an individual refuses to accept discharge instructions, the local mental health
812 
authority shall document the refusal in the individual's medical record.
813 
(e) If an individual's discharge instructions include referrals to services under Subsection
814 
(20)(b)(v), the local mental health authority shall document those referrals in the
815 
individual's medical record.
816 
(f) The local mental health authority shall attempt to follow up with a discharged
817 
individual at least 48 hours after discharge, and may use peer support professionals
818 
when performing follow-up care or developing a continuing care plan.
819 
(21) If any provision of Subsection (16)(a)(ii) or the application of any provision of
820 
Subsection (16)(a)(ii) to any person or circumstance is held invalid by a court with
821 
jurisdiction, the remainder of Subsection (16)(a)(ii) shall be given effect without the
822 
invalid provision or application. The provisions of Subsection (16)(a)(ii) are severable.
823 
Section 8.  Section 26B-5-362 is amended to read:
824 
26B-5-362 . Commitment and care of criminally insane.
825 
      Nothing contained in this part may be construed to alter or change the method presently
826 
employed for the commitment and care of the criminally insane as provided in [Title 77,
827 
Chapter 15, Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to
828 
Proceed.
829 
Section 9.  Section 26B-5-371 is amended to read:
830 
26B-5-371 . Utah Forensic Mental Health Facility -- Design and operation --
831 
Security.
832 
(1) The forensic mental health facility is a secure treatment facility.
833 
(2)(a) The forensic mental health facility accommodates the following populations:
834 
(i) prison inmates displaying mental illness necessitating treatment in a secure mental
835 
health facility;
836 
(ii) criminally adjudicated persons found guilty with a mental illness or guilty with a
837 
mental condition at the time of the offense undergoing evaluation for a mental
838 
condition under Title 77, Chapter 16a, Commitment and Treatment of Individuals
839 
with a Mental Condition;
840 
(iii) criminally adjudicated persons undergoing evaluation for competency or found
841 
guilty with a mental condition or guilty with a mental condition at the time of the
842 
offense under Title 77, Chapter 16a, Commitment and Treatment of Individuals
843 
with a Mental Condition, who also have an intellectual disability;
844 
(iv) persons undergoing evaluation for competency or found by a court to be
- 25 - 1st Sub. (Buff) H.B. 334	03-07 11:11
845 
incompetent to proceed in accordance with [Title 77, Chapter 15, Inquiry into
846 
Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
847 
not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
848 
(v) persons who are civilly committed to the custody of a local mental health
849 
authority in accordance with this part, and who may not be properly supervised by
850 
the Utah State Hospital because of a lack of necessary security, as determined by
851 
the superintendent or the superintendent's designee; and
852 
(vi) persons ordered to commit themselves to the custody of the division for
853 
treatment at the Utah State Hospital as a condition of probation or stay of sentence
854 
pursuant to Title 77, Chapter 18, The Judgment.
855 
(b) Placement of an offender in the forensic mental health facility under any category
856 
described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the
857 
offender's status as established by the court at the time of adjudication.
858 
(c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
859 
department shall make rules providing for the allocation of beds to the categories
860 
described in Subsection (2)(a).
861 
(3) The department shall:
862 
(a) own and operate the forensic mental health facility;
863 
(b) provide and supervise administrative and clinical staff; and
864 
(c) provide security staff who are trained as psychiatric technicians.
865 
(4) Pursuant to Subsection 26B-5-303(3) the executive director shall designate individuals
866 
to perform security functions for the state hospital.
867 
Section 10.  Section 26B-6-401 is amended to read:
868 
26B-6-401 . Definitions.
869 
      As used in this part:
870 
(1) "Approved provider" means a person approved by the division to provide home-and
871 
community-based services.
872 
(2) "Board" means the Utah State Developmental Center Board created under Section
873 
26B-1-429.
874 
(3)(a) "Brain injury" means an acquired injury to the brain that is neurological in nature,
875 
including a cerebral vascular accident.
876 
(b) "Brain injury" does not include a deteriorating disease.
877 
(4) "Designated intellectual disability professional" means:
878 
(a) a psychologist licensed under Title 58, Chapter 61, Psychologist Licensing Act, who:
- 26 - 03-07 11:11	1st Sub. (Buff) H.B. 334
879 
(i)(A) has at least one year of specialized training in working with persons with an
880 
intellectual disability; or
881 
(B) has at least one year of clinical experience with persons with an intellectual
882 
disability; and
883 
(ii) is designated by the division as specially qualified, by training and experience, in
884 
the treatment of an intellectual disability; or
885 
(b) a clinical social worker, certified social worker, marriage and family therapist, or
886 
professional counselor, licensed under Title 58, Chapter 60, Mental Health
887 
Professional Practice Act, who:
888 
(i) has at least two years of clinical experience with persons with an intellectual
889 
disability; and
890 
(ii) is designated by the division as specially qualified, by training and experience, in
891 
the treatment of an intellectual disability.
892 
(5) "Deteriorating disease" includes:
893 
(a) multiple sclerosis;
894 
(b) muscular dystrophy;
895 
(c) Huntington's chorea;
896 
(d) Alzheimer's disease;
897 
(e) ataxia; or
898 
(f) cancer.
899 
(6) "Developmental center" means the Utah State Developmental Center, established in
900 
accordance with Part 5, Utah State Developmental Center.
901 
(7) "Director" means the director of the Division of Services for People with Disabilities.
902 
(8) "Direct service worker" means a person who provides services to a person with a
903 
disability:
904 
(a) when the services are rendered in:
905 
(i) the physical presence of the person with a disability; or
906 
(ii) a location where the person rendering the services has access to the physical
907 
presence of the person with a disability; and
908 
(b)(i) under a contract with the division;
909 
(ii) under a grant agreement with the division; or
910 
(iii) as an employee of the division.
911 
(9)(a) "Disability" means a severe, chronic disability that:
912 
(i) is attributable to:
- 27 - 1st Sub. (Buff) H.B. 334	03-07 11:11
913 
(A) an intellectual disability;
914 
(B) a condition that qualifies a person as a person with a related condition, as
915 
defined in 42 C.F.R. Sec. 435.1010;
916 
(C) a physical disability; or
917 
(D) a brain injury;
918 
(ii) is likely to continue indefinitely;
919 
(iii)(A) for a condition described in Subsection (9)(a)(i)(A), (B), or (C), results in
920 
a substantial functional limitation in three or more of the following areas of
921 
major life activity:
922 
(I) self-care;
923 
(II) receptive and expressive language;
924 
(III) learning;
925 
(IV) mobility;
926 
(V) self-direction;
927 
(VI) capacity for independent living; or
928 
(VII) economic self-sufficiency; or
929 
(B) for a condition described in Subsection (9)(a)(i)(D), results in a substantial
930 
limitation in three or more of the following areas:
931 
(I) memory or cognition;
932 
(II) activities of daily life;
933 
(III) judgment and self-protection;
934 
(IV) control of emotions;
935 
(V) communication;
936 
(VI) physical health; or
937 
(VII) employment; and
938 
(iv) requires a combination or sequence of special interdisciplinary or generic care,
939 
treatment, or other services that:
940 
(A) may continue throughout life; and
941 
(B) must be individually planned and coordinated.
942 
(b) "Disability" does not include a condition due solely to:
943 
(i) mental illness;
944 
(ii) personality disorder;
945 
(iii) deafness or being hard of hearing;
946 
(iv) visual impairment;
- 28 - 03-07 11:11	1st Sub. (Buff) H.B. 334
947 
(v) learning disability;
948 
(vi) behavior disorder;
949 
(vii) substance abuse; or
950 
(viii) the aging process.
951 
(10) "Division" means the Division of Services for People with Disabilities.
952 
(11) "Eligible to receive division services" or "eligibility" means qualification, based on
953 
criteria established by the division, to receive services that are administered by the
954 
division.
955 
(12) "Endorsed program" means a facility or program that:
956 
(a) is operated:
957 
(i) by the division; or
958 
(ii) under contract with the division; or
959 
(b) provides services to a person committed to the division under Part 6, Admission to
960 
an Intermediate Care Facility for People with an Intellectual Disability.
961 
(13) "Licensed physician" means:
962 
(a) an individual licensed to practice medicine under:
963 
(i) Title 58, Chapter 67, Utah Medical Practice Act; or
964 
(ii) Title 58, Chapter 68, Utah Osteopathic Medical Practice Act; or
965 
(b) a medical officer of the United States Government while in this state in the
966 
performance of official duties.
967 
(14) "Limited support services" means services that are administered by the division to
968 
individuals with a disability:
969 
(a) under a waiver authorized under 42 U.S.C. Sec. 1396n(c) by the Centers for
970 
Medicare and Medicaid Services that permits the division to limit services to an
971 
individual who is eligible to receive division services; and
972 
(b) through a program that:
973 
(i) was not operated by the division on or before January 1, 2020; and
974 
(ii)(A) limits the kinds of services that an individual may receive; or
975 
(B) sets a maximum total dollar amount for program services provided to each
976 
individual.
977 
(15) "Physical disability" means a medically determinable physical impairment that has
978 
resulted in the functional loss of two or more of a person's limbs.
979 
(16) "Public funds" means state or federal funds that are disbursed by the division.
980 
(17)(a) "Related condition" means a severe, chronic condition that:
- 29 - 1st Sub. (Buff) H.B. 334	03-07 11:11
981 
(i) manifests before the day on which an individual turns 22 years old;
982 
(ii) is likely to continue indefinitely;
983 
(iii) results in substantial functional limitations;
984 
(iv) is closely related to an intellectual disability because the condition results in the
985 
impairment of:
986 
(A) general intellectual functioning, similar to that of an individual with an
987 
intellectual disability; or
988 
(B) adaptive behavior, similar to that of an individual with an intellectual
989 
disability; and
990 
(v) requires treatment or services similar to the treatment or services required for an
991 
individual with an intellectual disability.
992 
(b) "Related condition" does not include mental illness, as that term is defined in Section
993 
26B-5-301.
994 
[(17)] (18) "Resident" means an individual under observation, care, or treatment in an
995 
intermediate care facility for people with an intellectual disability.
996 
(19) "Substantial danger" means that because of an intellectual disability or related
997 
condition, an individual is at risk of:
998 
(a) suicide;
999 
(b) serious bodily self-injury;
1000 
(c) serious bodily injury because the individual lacks capacity to provide the basic
1001 
necessities of life, such as food, clothing, or shelter;
1002 
(d) causing or attempting to cause serious bodily injury or serious emotional harm to
1003 
another individual;
1004 
(e) engaging in harmful sexual conduct, as that term is defined in Section 26B-5-301; or
1005 
(f) suffering serious physical harm or serious emotional harm as a result of being
1006 
exploited, abused, or neglected.
1007 
[(18)] (20) "Sustainability fund" means the Utah State Developmental Center Long-Term
1008 
Sustainability Fund created in Section 26B-1-331.
1009 
Section 11.  Section 26B-6-606 is amended to read:
1010 
26B-6-606 . Involuntary commitment.
1011 
      An individual with an intellectual disability or related condition may not be involuntarily
1012 
committed to [an intermediate care facility for people with an intellectual disability] the division
1013 
except in accordance with Sections 26B-6-607 and 26B-6-608.
1014 
Section 12.  Section 26B-6-607 is amended to read:
- 30 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1015 
26B-6-607 . Temporary emergency commitment -- Observation and evaluation.
1016 
(1) [The director of the division or his designee may temporarily commit an individual to
1017 
the division and therefore, as a matter of course, to an intermediate care facility for
1018 
people with an intellectual disability for observation and evaluation] An individual with
1019 
an intellectual disability or related condition may be committed to the division on an
1020 
emergency basis upon[:]
1021 
[(a) written application by a responsible person who has reason to know that the
1022 
individual is in need of commitment, stating:]
1023 
[(i) a belief that the individual has an intellectual disability and is likely to cause
1024 
serious injury to self or others if not immediately committed;]
1025 
[(ii) personal knowledge of the individual's condition; and]
1026 
[(iii) the circumstances supporting that belief; or]
1027 
[(b)]   certification by a [licensed physician or ]designated intellectual disability
1028 
professional stating that the [physician or ]designated intellectual disability
1029 
professional:
1030 
[(i)] (a) has examined the individual within a three-day period, excluding Saturdays,
1031 
Sundays, and state holidays, immediately preceding the certification; and
1032 
[(ii)] (b) is of the opinion that the individual has an intellectual disability or related
1033 
condition, and that because of the individual's intellectual disability [is likely to injure] 
1034 
or related condition is a substantial danger to self or others[ if not immediately
1035 
committed].
1036 
(2) If the individual in need of commitment is not placed in the custody of the director or
1037 
the director's designee by the person submitting the [application, the director's] 
1038 
certification, the director or the director's designee may certify, either in writing or orally
1039 
that the individual is in need of immediate commitment to prevent [injury] posing
1040 
substantial danger to self or others.
1041 
(3) Upon receipt of the [application] certification required by Subsection [(1)(a) and the
1042 
certifications required by Subsections (1)(b) and (2)] (2), a peace officer [may take the
1043 
individual named in the application and certificates into custody, and ]may transport the
1044 
individual to a [designated intermediate care facility for people with an intellectual
1045 
disability] placement designated by the division.
1046 
(4)(a) An individual committed under this section may be held for a maximum of [72
1047 
hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of that
1048 
time,] 10 days, after which the individual shall be released unless proceedings for
- 31 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1049 
involuntary commitment have been commenced under Section 26B-6-608.
1050 
(b) [After] If proceedings for involuntary commitment have been commenced[ the
1051 
individual shall be released unless an order of detention is issued in accordance with
1052 
Section 26B-6-608] , an emergency order under this section remains in effect until:
1053 
(i) the division determines that the conditions justifying commitment no longer exist;
1054 
or
1055 
(ii) a court order is issued pursuant to Section 26B-6-608.
1056 
(5)(a) If an individual is committed to the division under this section[ on the application
1057 
of any person other than the individual's legal guardian, spouse, parent, or next of kin],
1058 
the director or [his] the director's designee shall immediately give notice of the
1059 
commitment to the individual's legal guardian[, spouse, parent, or next of kin], if
1060 
known.
1061 
(b)(i) Immediately after an individual is committed to the division under this section,
1062 
the division shall inform the individual, orally and in writing, of the individual's
1063 
right to communicate with an attorney.
1064 
(ii) If the individual desires to communicate with an attorney, the division shall take
1065 
immediate steps to assist the individual in contacting and communicating with an
1066 
attorney.
1067 
(6)(a) The division [or an intermediate care facility ]shall provide discharge instructions
1068 
to each individual committed under this section at or before the time the individual is
1069 
discharged from the custody of the division[ or intermediate care facility],
1070 
regardless of whether the individual is discharged by being released or under other
1071 
circumstances.
1072 
(b) Discharge instructions provided under Subsection (6)(a) shall include:
1073 
(i) a summary of why the individual was committed;
1074 
(ii) detailed information about why the individual is being discharged;
1075 
(iii) a safety plan for the individual based on the individual's intellectual disability
1076 
and condition;
1077 
(iv) notification to the individual's primary care provider, if applicable;
1078 
(v) if the individual is discharged without food, housing, or economic security, a
1079 
referral to appropriate services, if such services exist in the individual's
1080 
community;
1081 
(vi) the phone number to call or text for a crisis services hotline, and information
1082 
about the availability of peer support services;
- 32 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1083 
(vii) a copy of any advance directive presented to the local mental health authority, if
1084 
applicable;
1085 
(viii) information about how to establish an advance directive if one was not
1086 
presented to the division[ or intermediate care facility];
1087 
(ix) as applicable, information about medications that were changed or discontinued
1088 
during the commitment;
1089 
(x) a list of any screening or diagnostic tests conducted during the commitment;
1090 
(xi) a summary of therapeutic treatments provided during the commitment;
1091 
(xii) any laboratory work, including blood samples or imaging, that was completed or
1092 
attempted during the commitment; and
1093 
(xiii) information about how to contact the division[ or intermediate care facility] if
1094 
needed.
1095 
(c) If an individual's medications were changed, or if an individual was prescribed new
1096 
medications while committed under this section, discharge instructions provided
1097 
under Subsection (6)(a) shall include a clinically appropriate supply of medications,
1098 
as determined by a licensed health care provider, to allow the individual time to
1099 
access another health care provider or follow-up appointment.
1100 
(d) If an individual refuses to accept discharge instructions, the division[ or intermediate
1101 
care facility] shall document the refusal in the individual's medical record.
1102 
(e) If an individual's discharge instructions include referrals to services under Subsection
1103 
(6)(b)(v), the division[ or intermediate care facility] shall document those referrals
1104 
in the individual's medical record.
1105 
(f) The division shall attempt to follow up with a discharged individual at least 48 hours
1106 
after discharge, and may use peer support professionals when performing follow-up
1107 
care or developing a continuing care plan.
1108 
Section 13.  Section 26B-6-608 is amended to read:
1109 
26B-6-608 . Involuntary commitment -- Procedures -- Necessary findings --
1110 
Periodic review.
1111 
[(1) Any responsible person who has reason to know that an individual is in need of
1112 
commitment, who has a belief that the individual has an intellectual disability, and who
1113 
has personal knowledge of the conditions and circumstances supporting that belief, may
1114 
commence proceedings for involuntary commitment by filing a written petition with the
1115 
district court, or if the subject of the petition is less than 18 years old with the juvenile
1116 
court, of the county in which the individual to be committed is physically located at the
- 33 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1117 
time the petition is filed. The application shall be accompanied by:]
1118 
[(a) a certificate of a licensed physician or a designated intellectual disability
1119 
professional, stating that within a seven-day period immediately preceding the
1120 
certification, the physician or designated intellectual disability professional examined
1121 
the individual and believes that the individual has an intellectual disability and is in
1122 
need of involuntary commitment; or]
1123 
[(b) a written statement by the petitioner that:]
1124 
[(i) states that the individual was requested to, but refused to, submit to an
1125 
examination for an intellectual disability by a licensed physician or designated
1126 
intellectual disability professional, and that the individual refuses to voluntarily go
1127 
to the division or an intermediate care facility for people with an intellectual
1128 
disability recommended by the division for treatment;]
1129 
[(ii) is under oath; and]
1130 
[(iii) sets forth the facts on which the statement is based.]
1131 
[(2) Before issuing a detention order, the court may require the petitioner to consult with
1132 
personnel at the division or at an intermediate care facility for people with an intellectual
1133 
disability and may direct a designated intellectual disability professional to interview the
1134 
petitioner and the individual to be committed, to determine the existing facts, and to
1135 
report them to the court.]
1136 
[(3) The court may issue a detention order and may direct a peace officer to immediately
1137 
take the individual to an intermediate care facility for people with an intellectual
1138 
disability to be detained for purposes of an examination if the court finds from the
1139 
petition, from other statements under oath, or from reports of physicians or designated
1140 
intellectual disability professionals that there is a reasonable basis to believe that the
1141 
individual to be committed:]
1142 
[(a) poses an immediate danger of physical injury to  self or others;]
1143 
[(b) requires involuntary commitment pending examination and hearing;]
1144 
[(c) the individual was requested but refused to submit to an examination by a licensed
1145 
physician or designated intellectual disability professional; or]
1146 
[(d) the individual refused to voluntarily go to the division or to an intermediate care
1147 
facility for people with an intellectual disability recommended by the division.]
1148 
[(4)(a) If the court issues a detention order based on an application that did not include
1149 
a certification by a designated intellectual disability professional or physician in
1150 
accordance with Subsection (1)(a), the director or his designee shall within 24 hours
- 34 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1151 
after issuance of the detention order, excluding Saturdays, Sundays, and legal
1152 
holidays, examine the individual, report the results of the examination to the court
1153 
and inform the court:]
1154 
[(i) whether the director or his designee believes that the individual has an intellectual
1155 
disability; and]
1156 
[(ii) whether appropriate treatment programs are available and will be used by the
1157 
individual without court proceedings.]
1158 
[(b) If the report of the director or his designee is based on an oral report of the
1159 
examiner, the examiner shall immediately send the results of the examination in
1160 
writing to the clerk of the court.]
1161 
[(5) Immediately after an individual is involuntarily committed under a detention order or
1162 
under Section 26B-6-607, the director or his designee shall inform the individual, orally
1163 
and in writing, of his right to communicate with an attorney. If an individual desires to
1164 
communicate with an attorney, the director or his designee shall take immediate steps to
1165 
assist the individual in contacting and communicating with an attorney.]
1166 
(1)(a) Any responsible person who has reason to know that an individual is in need of
1167 
commitment, who has a belief that the individual has an intellectual disability or
1168 
related condition, and who has personal knowledge of the conditions and
1169 
circumstances supporting that belief, may make a referral to the division to conduct
1170 
an assessment to determine if the individual meets the criteria for involuntary
1171 
commitment under this section.
1172 
(b)(i) To conduct an assessment of an individual who may be in need of commitment
1173 
under this section, the division shall have two designated intellectual disability
1174 
professionals examine the individual.
1175 
(ii) The examinations described in Subsection (1)(b)(i) shall be conducted separately
1176 
and at a suitable location not likely to have a harmful effect on the individual
1177 
being examined.
1178 
(c) If the designated intellectual disability professionals who conduct the examinations
1179 
described in Subsection (1)(b)(i) both believe the examined individual meets the
1180 
criteria for involuntary commitment under this section, the division may file a written
1181 
petition to commence involuntary commitment proceedings with the district court, or
1182 
with the juvenile court if the subject of the petition is less than 18 years old, of the
1183 
county in which the subject of the petition is physically located at the time the
1184 
petition is filed.
- 35 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1185 
(d)(i) The division shall include with a petition described in Subsection (1)(c) a
1186 
certification from each of the designated intellectual disability professionals who
1187 
examined the subject of the petition.
1188 
(ii) A designated intellectual disability professional's certification shall state that:
1189 
(A) within a seven-day period immediately preceding the filing of the petition, the
1190 
designated intellectual disability professional examined the subject of the
1191 
petition separate from the other designated intellectual disability professional;
1192 
and
1193 
(B) it is the designated intellectual disability professional's belief that the subject
1194 
of the petition has an intellectual disability or related condition and meets the
1195 
criteria for involuntary commitment under this section.
1196 
(2)(a) If, pursuant to Title 77, Chapter 15, Defendant's Competency to Proceed, or Title
1197 
80, Chapter 6, Part 4, Competency, a prosecutor informs a court that commitment
1198 
proceedings will be initiated, the prosecutor shall make a referral to the division
1199 
pursuant to Subsection (1).
1200 
(b) If a prosecutor makes a referral to the division pursuant to Subsection (1), the
1201 
division shall complete an assessment as described in Subsection (1)(b) within seven
1202 
days after the day on which the prosecutor makes the referral unless the court
1203 
enlarges the time for good cause shown.
1204 
(c) Upon completion of the assessment described in Subsection (2)(b), if the designated
1205 
intellectual disability professionals who examine the individual who is the subject of
1206 
the referral both certify that they believe the individual meets the criteria for
1207 
involuntary commitment under this section, the division may file a petition to
1208 
commence involuntary commitment proceedings in accordance with Subsections
1209 
(1)(c) and (d).
1210 
[(6)] (3)(a) Immediately after [commencement of proceedings] the division files a petition
1211 
for involuntary commitment under this section, the court shall:
1212 
(i) schedule a hearing on the petition for no later than 10 days after the day on which
1213 
the division filed the petition; and
1214 
(ii) give notice of commencement of the proceedings to:
1215 
[(i)] (A) the individual to be committed;
1216 
[(ii)] (B) the [applicant] referent under Subsection (1)(a) or (2)(a), if applicable;
1217 
[(iii)] (C) any legal guardian of the individual;
1218 
[(iv)] (D) adult members of the individual's immediate family;
- 36 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1219 
[(v)] (E) legal counsel of the individual to be committed, if any;
1220 
[(vi)] (F) the division; and
1221 
[(vii)] (G) any other person to whom the individual requests, or the court
1222 
designates, notice to be given.
1223 
(b) If an individual cannot or refuses to disclose the identity of persons to be notified,
1224 
the extent of notice shall be determined by the court.
1225 
[(7)] (4) [That notice] The notice described in Subsection (3) shall:
1226 
(a) set forth the allegations of the petition and all supporting facts;
1227 
(b) be accompanied by a copy of [any detention] an emergency order issued under [
1228 
Subsection (3)] Section 26B-6-607, if applicable; and
1229 
(c) state that a hearing will be held within the time provided by law, and give the time
1230 
and place for that hearing.
1231 
[(8)] (5) The court may transfer the case and the custody of the individual to be committed
1232 
to any other district court within the state[, if:]  if the individual resides in another
1233 
jurisdiction within the state.
1234 
[(a) there are no appropriate facilities for persons with an intellectual disability within
1235 
the judicial district; and]
1236 
[(b) the transfer will not be adverse to the interests of the individual.]
1237 
[(9)(a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, after any
1238 
order or commitment under a detention order, the court shall appoint two designated
1239 
intellectual disability professionals to examine the individual. If requested by the
1240 
individual's counsel, the court shall appoint a reasonably available, qualified person
1241 
designated by counsel to be one of the examining designated intellectual disability
1242 
professionals. The examinations shall be conducted:]
1243 
[(i) separately;]
1244 
[(ii) at the home of the individual to be committed, a hospital, an intermediate care
1245 
facility for people with an intellectual disability, or any other suitable place not
1246 
likely to have a harmful effect on the individual; and]
1247 
[(iii) within a reasonable period of time after appointment of the examiners by the
1248 
court.]
1249 
[(b) The court shall set a time for a hearing to be held within 10 court days of the
1250 
appointment of the examiners. However, the court may immediately terminate the
1251 
proceedings and dismiss the application if, prior to the hearing date, the examiners,
1252 
the director, or his designee informs the court that:]
- 37 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1253 
[(i) the individual does not have an intellectual disability; or]
1254 
[(ii) treatment programs are available and will be used by the individual without court
1255 
proceedings.]
1256 
[(10)] (6)(a)(i) Each individual has the right to be represented by counsel at the
1257 
commitment hearing and in all preliminary proceedings.
1258 
(ii) If neither the individual nor others provide counsel, [ ]the court shall appoint
1259 
counsel and allow sufficient time for counsel to consult with the individual prior
1260 
to any hearing.
1261 
(b) If the individual is indigent, the county in which the individual was physically
1262 
located when taken into custody shall pay reasonable attorney fees as determined by
1263 
the court.
1264 
[(11)] (7) [The division or a designated intellectual disability professional in charge of the
1265 
individual's care] Upon order of the court, the division or the division's designee shall
1266 
provide all [documented information on] relevant documentation on the individual to be
1267 
committed [and ]to the court [at the time of the hearing.  The] and the individual's
1268 
attorney[ shall have access to all documented information on the individual at the time
1269 
of and prior to the hearing].
1270 
[(12)] (8)(a) The court shall provide an opportunity to the individual, the petitioner, and
1271 
all other persons to whom notice is required to be given to appear at the hearing, to
1272 
testify, and to present and cross-examine witnesses.
1273 
(b) The court may, in its discretion:
1274 
(i) receive the testimony of any other person;
1275 
(ii) allow a waiver of the right to appear only for good cause shown;
1276 
(iii) exclude from the hearing all persons not necessary to conduct the proceedings;
1277 
and
1278 
(iv) upon motion of counsel, require the testimony of each examiner to be given out
1279 
of the presence of any other examiner.
1280 
(c)(i) The hearing shall be conducted in as informal a manner as may be consistent
1281 
with orderly procedure, and in a physical setting that is not likely to have a
1282 
harmful effect on the individual.
1283 
(ii) The Utah Rules of Evidence apply, and the hearing shall be a matter of court
1284 
record.
1285 
(iii) A verbatim record of the proceedings shall be maintained.
1286 
[(13)] (9) The court may order commitment if, upon completion of the hearing and
- 38 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1287 
consideration of the record, [it] the court finds by clear and convincing evidence that all
1288 
of the following conditions are met:
1289 
(a) the individual to be committed has an intellectual disability or a related condition;
1290 
(b) because of the individual's intellectual disability or related condition, one or more of
1291 
the following conditions exist:
1292 
(i) the individual poses [an immediate danger of physical injury] substantial danger to
1293 
self or others;
1294 
(ii) the individual lacks the capacity to provide the basic necessities of life, such as
1295 
food, clothing, or shelter;[ or]
1296 
(iii) the individual is in immediate need of habilitation, rehabilitation, care, or
1297 
treatment to minimize the effects of the condition which poses a [threat of serious
1298 
physical or psychological injury to the individual, and] risk of substantial danger to
1299 
self or others; or
1300 
(iv) the individual lacks the capacity to engage in a rational decision-making process
1301 
concerning the need for habilitation, rehabilitation, care, or treatment, as
1302 
evidenced by an inability to weigh the possible costs and benefits of the care or
1303 
treatment and the alternatives to it;
1304 
(c) there is no appropriate, less restrictive alternative reasonably available; and
1305 
(d) the division [or the intermediate care facility for people with an intellectual disability
1306 
recommended by the division in which the individual is to be committed ]can provide
1307 
the individual with treatment, care, habilitation, or rehabilitation that is adequate and
1308 
appropriate to the individual's condition and needs.
1309 
[(14)] (10) In the absence of any of the required findings by the court, described in
1310 
Subsection [(13)] (9), the court shall dismiss the proceedings.
1311 
[(15)] (11)(a) The order of commitment shall designate the period for which the
1312 
individual will be committed.
1313 
(b) An initial commitment may not exceed six months.[ Before the end of the initial
1314 
commitment period, the administrator of the intermediate care facility for people with
1315 
an intellectual disability shall commence a review hearing on behalf of the individual.]
1316 
[(b) At the conclusion of the review hearing, the court may issue an order of
1317 
commitment for up to a one-year period.]
1318 
[(16)] (12)(a) An individual committed under this part has the right to a rehearing[, upon
1319 
filing a petition with the court within 30 days after entry of the court's order. If the
1320 
petition for rehearing alleges error or mistake in the court's findings, the]  if, within 15
- 39 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1321 
days after the court enters the order of commitment, the individual files a petition
1322 
with the court alleging error or mistake in the court's findings.
1323 
(b) Upon a request for rehearing filed in accordance with Subsection (12)(a), the court
1324 
shall:
1325 
(i) appoint[ one impartial licensed physician and] two impartial designated
1326 
intellectual disability professionals who have not previously been involved in the
1327 
case to examine the individual[.  ] ; and
1328 
(ii) schedule a rehearing to be held within 30 days after the court entered the order of
1329 
commitment.
1330 
(c) [The] In all other respects, the rehearing shall[, in all other respects,] be conducted in
1331 
accordance with this part.
1332 
[(17)] (13)(a)(i) The court shall maintain a current list of all individuals under its
1333 
orders of commitment.
1334 
(ii) [That list shall be reviewed in order] The court shall review the list described in
1335 
Subsection (13)(a)(i) to determine those patients who have been under an order of
1336 
commitment for the designated period.
1337 
(b) At least two weeks prior to the expiration of the designated period of any
1338 
commitment order still in effect, the court that entered the original order shall [inform
1339 
the director of the division of the impending expiration of the designated
1340 
commitment period] commence and send notice to all parties of a review hearing for
1341 
the committed individual.
1342 
(c) Prior to the review hearing, a division-designated intellectual disability professional
1343 
shall reexamine the basis for the order of commitment and provide a report of that
1344 
reexamination to the court.
1345 
(d) At the conclusion of a review hearing, the court may:
1346 
(i) issue an order of commitment for up to a one-year period; or
1347 
(ii) discharge the individual from involuntary commitment if the conditions justifying
1348 
commitment no longer exist.
1349 
[(c) The staff of the division shall immediately:]
1350 
[(i) reexamine the reasons upon which the order of commitment was based and report
1351 
the results of the examination to the court;]
1352 
[(ii) discharge the resident from involuntary commitment if the conditions justifying
1353 
commitment no longer exist; and]
1354 
[(iii) immediately inform the court of any discharge.]
- 40 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1355 
[(d)] (e) [If the director of the division reports to the court that the conditions justifying
1356 
commitment no longer exist, and the administrator of the intermediate care facility
1357 
for people with an intellectual disability does not discharge the individual at the end
1358 
of the designated period, the court shall order the immediate discharge of the
1359 
individual, unless involuntary commitment proceedings are again commenced in
1360 
accordance with this section] If at any time during the commitment period the director
1361 
or the director's designee determines that the conditions justifying commitment no
1362 
longer exist, the division shall immediately discharge the individual from the
1363 
commitment and notify the court.
1364 
(f) If the division does not discharge an individual at the end of the designated period of
1365 
a commitment order, the court shall order the immediate discharge of the individual
1366 
unless involuntary commitment proceedings are commenced again in accordance
1367 
with this section.
1368 
[(e) If the director of the division, or the director's designee reports to the court that the
1369 
conditions designated in Subsection (13) still exist, the court may extend the
1370 
commitment order for up to one year. At the end of any extension, the individual
1371 
must be reexamined in accordance with this section, or discharged.]
1372 
[(18)] (14) When a resident is discharged under this [subsection] section, the division shall [
1373 
provide any further support services available and] continue to provide division services
1374 
for which the individual is eligible and as required to meet the resident's needs.
1375 
[(19)] (15)(a) The division[ or an intermediate care facility] shall provide discharge
1376 
instructions to each individual committed under this section at or before the time the
1377 
individual is discharged from the custody of the division[ or intermediate care facility],
1378 
regardless of whether the individual is discharged by being released or under other
1379 
circumstances.
1380 
(b) Discharge instructions provided under Subsection [(19)(a)] (15)(a) shall include:
1381 
(i) a summary of why the individual was committed;
1382 
(ii) detailed information about why the individual is being discharged;
1383 
(iii) a safety plan for the individual based on the individual's intellectual disability
1384 
and condition;
1385 
(iv) notification to the individual's primary care provider, if applicable;
1386 
(v) if the individual is discharged without food, housing, or economic security, a
1387 
referral to appropriate services, if such services exist in the individual's
1388 
community;
- 41 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1389 
(vi) the phone number to call or text for a crisis services hotline, and information
1390 
about the availability of peer support services;
1391 
(vii) a copy of any advance directive presented to the local mental health authority, if
1392 
applicable;
1393 
(viii) information about how to establish an advance directive if one was not
1394 
presented to the division[ or intermediate care facility];
1395 
(ix) as applicable, information about medications that were changed or discontinued
1396 
during the commitment;
1397 
(x) a list of any screening or diagnostic tests conducted during the commitment;
1398 
(xi) a summary of therapeutic treatments provided during the commitment;
1399 
(xii) any laboratory work, including blood samples or imaging, that was completed or
1400 
attempted during the commitment; and
1401 
(xiii) information about how to contact the division[ or intermediate care facility] if
1402 
needed.
1403 
(c) If an individual's medications were changed, or if an individual was prescribed new
1404 
medications while committed under this section, discharge instructions provided
1405 
under Subsection [(19)(a)] (15)(a) shall include a clinically appropriate supply of
1406 
medications, as determined by a licensed health care provider, to allow the individual
1407 
time to access another health care provider or follow-up appointment.
1408 
(d) If an individual refuses to accept discharge instructions, the division[ or intermediate
1409 
care facility] shall document the refusal in the individual's medical record.
1410 
(e) If an individual's discharge instructions include referrals to services under Subsection [
1411 
(19)(b)(v)] (15)(b)(v), the division[ or intermediate care facility] shall document those
1412 
referrals in the individual's medical record.
1413 
(f) The division shall attempt to follow up with a discharged individual at least 48 hours
1414 
after discharge, and may use peer support professionals when performing follow-up
1415 
care or developing a continuing care plan.
1416 
Section 14.  Section 26B-6-613 is amended to read:
1417 
26B-6-613 . Involuntary treatment with medication -- Committee -- Findings.
1418 
(1) If, after commitment, a resident elects to refuse treatment with medication, the director,
1419 
the administrator of the intermediate care facility for people with an intellectual
1420 
disability, or a designee, shall submit documentation regarding the resident's proposed
1421 
treatment to a committee composed of:
1422 
(a) a licensed physician experienced in treating persons with an intellectual disability,
- 42 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1423 
who is not directly involved in the resident's treatment or diagnosis, and who is not
1424 
biased toward any one facility;
1425 
(b) a psychologist who is a designated intellectual disability professional who is not
1426 
directly involved in the resident's treatment or diagnosis; and
1427 
(c) another designated intellectual disability professional of the facility for persons with
1428 
an intellectual disability, or a designee.
1429 
(2) Based upon the court's finding, under Subsection [26B-6-608(13)] 26B-6-608(9), that
1430 
the resident lacks the ability to engage in a rational decision-making process regarding
1431 
the need for habilitation, rehabilitation, care, or treatment, as demonstrated by evidence
1432 
of inability to weigh the possible costs and benefits of treatment, the committee may
1433 
authorize involuntary treatment with medication if it determines that:
1434 
(a) the proposed treatment is in the medical best interest of the resident, taking into
1435 
account the possible side effects as well as the potential benefits of the medication;
1436 
and
1437 
(b) the proposed treatment is in accordance with prevailing standards of accepted
1438 
medical practice.
1439 
(3) In making the determination described in Subsection (2), the committee shall consider
1440 
the resident's general history and present condition, the specific need for medication and
1441 
its possible side effects, and any previous reaction to the same or comparable medication.
1442 
(4) Any authorization of involuntary treatment under this section shall be periodically
1443 
reviewed in accordance with rules promulgated by the division.
1444 
Section 15.  Section 63I-2-275 is amended to read:
1445 
63I-2-275 . Repeal dates: Title 75.
1446 
      [Subsection 75-5-303(5)(d), regarding counsel for a person alleged to be incapacitated,
1447 
is repealed July 1, 2028] Reserved.
1448 
Section 16.  Section 68-3-12.5 is amended to read:
1449 
68-3-12.5 . Definitions for Utah Code.
1450 
(1) The definitions listed in this section apply to the Utah Code, unless:
1451 
(a) the definition is inconsistent with the manifest intent of the Legislature or repugnant
1452 
to the context of the statute; or
1453 
(b) a different definition is expressly provided for the respective title, chapter, part,
1454 
section, or subsection.
1455 
(2) "Adjudicative proceeding" means:
1456 
(a) an action by a board, commission, department, officer, or other administrative unit of
- 43 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1457 
the state that determines the legal rights, duties, privileges, immunities, or other legal
1458 
interests of one or more identifiable persons, including an action to grant, deny,
1459 
revoke, suspend, modify, annul, withdraw, or amend an authority, right, or license;
1460 
and
1461 
(b) judicial review of an action described in Subsection (2)(a).
1462 
(3) "Administrator" includes "executor" when the subject matter justifies the use.
1463 
(4) "Advisory board," "advisory commission," and "advisory council" mean a board,
1464 
commission, committee, or council that:
1465 
(a) is created by, and whose duties are provided by, statute or executive order;
1466 
(b) performs its duties only under the supervision of another person as provided by
1467 
statute; and
1468 
(c) provides advice and makes recommendations to another person that makes policy for
1469 
the benefit of the general public.
1470 
(5) "Armed forces" means the United States Army, Navy, Air Force, Marine Corps, Space
1471 
Force, and Coast Guard.
1472 
(6) "County executive" means:
1473 
(a) the county commission, in the county commission or expanded county commission
1474 
form of government established under Title 17, Chapter 52a, Changing Forms of
1475 
County Government;
1476 
(b) the county executive, in the county executive-council optional form of government
1477 
authorized by Section 17-52a-203; or
1478 
(c) the county manager, in the council-manager optional form of government authorized
1479 
by Section 17-52a-204.
1480 
(7) "County legislative body" means:
1481 
(a) the county commission, in the county commission or expanded county commission
1482 
form of government established under Title 17, Chapter 52a, Changing Forms of
1483 
County Government;
1484 
(b) the county council, in the county executive-council optional form of government
1485 
authorized by Section 17-52a-203; and
1486 
(c) the county council, in the council-manager optional form of government authorized
1487 
by Section 17-52a-204.
1488 
(8) "Depose" means to make a written statement made under oath or affirmation.
1489 
(9)(a) "Equal" means, with respect to biological sex, of the same value.
1490 
(b) "Equal" does not mean, with respect to biological sex:
- 44 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1491 
(i) a characteristic of being the same or identical; or
1492 
(ii) a requirement that biological sexes be ignored or co-mingled in every
1493 
circumstance.
1494 
(10) "Executor" includes "administrator" when the subject matter justifies the use.
1495 
(11) "Father" means a parent who is of the male sex.
1496 
(12) "Female" means the characteristic of an individual whose biological reproductive
1497 
system is of the general type that functions in a way that could produce ova.
1498 
(13) "Guardian" includes a person who:
1499 
(a) qualifies as a guardian of a minor or incapacitated person pursuant to testamentary or
1500 
court appointment; or
1501 
(b) is appointed by a court to manage the estate of a minor or incapacitated person.
1502 
(14) "Highway" includes:
1503 
(a) a public bridge;
1504 
(b) a county way;
1505 
(c) a county road;
1506 
(d) a common road; and
1507 
(e) a state road.
1508 
(15) "Intellectual disability" [means a significant, subaverage general intellectual
1509 
functioning that:] means the same as that term is defined in the most recent edition of the
1510 
Diagnostic and Statistical Manual of Mental Disorders published by the American
1511 
Psychiatric Association.
1512 
[(a) exists concurrently with deficits in adaptive behavior; and]
1513 
[(b) is manifested during the developmental period as defined in the current edition of
1514 
the Diagnostic and Statistical Manual of Mental Disorders, published by the
1515 
American Psychiatric Association.]
1516 
(16) "Intermediate care facility for people with an intellectual disability" means an [
1517 
intermediate care facility for the mentally retarded, as defined in Title XIX of the Social
1518 
Security Act] institution or distinct part thereof for people with an intellectual disability
1519 
or related conditions, if the institution or distinct part thereof meets the requirements
1520 
described in 42 U.S.C. Secs. 1396d(d)(1) through (3).
1521 
(17) "Land" includes:
1522 
(a) land;
1523 
(b) a tenement;
1524 
(c) a hereditament;
- 45 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1525 
(d) a water right;
1526 
(e) a possessory right; and
1527 
(f) a claim.
1528 
(18) "Male" means the characteristic of an individual whose biological reproductive system
1529 
is of the general type that functions to fertilize the ova of a female.
1530 
(19) "Man" means an adult human male.
1531 
(20) "Month" means a calendar month, unless otherwise expressed.
1532 
(21) "Mother" means a parent who is of the female sex.
1533 
(22) "Oath" includes "affirmation."
1534 
(23) "Person" means:
1535 
(a) an individual;
1536 
(b) an association;
1537 
(c) an institution;
1538 
(d) a corporation;
1539 
(e) a company;
1540 
(f) a trust;
1541 
(g) a limited liability company;
1542 
(h) a partnership;
1543 
(i) a political subdivision;
1544 
(j) a government office, department, division, bureau, or other body of government; and
1545 
(k) any other organization or entity.
1546 
(24) "Personal property" includes:
1547 
(a) money;
1548 
(b) goods;
1549 
(c) chattels;
1550 
(d) effects;
1551 
(e) evidences of a right in action;
1552 
(f) a written instrument by which a pecuniary obligation, right, or title to property is
1553 
created, acknowledged, transferred, increased, defeated, discharged, or diminished;
1554 
and
1555 
(g) a right or interest in an item described in Subsections (24)(a) through (f).
1556 
(25) "Personal representative," "executor," and "administrator" include:
1557 
(a) an executor;
1558 
(b) an administrator;
- 46 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1559 
(c) a successor personal representative;
1560 
(d) a special administrator; and
1561 
(e) a person who performs substantially the same function as a person described in
1562 
Subsections (25)(a) through (d) under the law governing the person's status.
1563 
(26) "Policy board," "policy commission," or "policy council" means a board, commission,
1564 
or council that:
1565 
(a) is authorized to make policy for the benefit of the general public;
1566 
(b) is created by, and whose duties are provided by, the constitution or statute; and
1567 
(c) performs its duties according to its own rules without supervision other than under
1568 
the general control of another person as provided by statute.
1569 
(27) "Population" is shown by the most recent state or national census, unless expressly
1570 
provided otherwise.
1571 
(28) "Process" means a writ or summons issued in the course of a judicial proceeding.
1572 
(29) "Property" includes both real and personal property.
1573 
(30) "Real estate" or "real property" includes:
1574 
(a) land;
1575 
(b) a tenement;
1576 
(c) a hereditament;
1577 
(d) a water right;
1578 
(e) a possessory right; and
1579 
(f) a claim.
1580 
(31) "Review board," "review commission," and "review council" mean a board,
1581 
commission, committee, or council that:
1582 
(a) is authorized to approve policy made for the benefit of the general public by another
1583 
body or person;
1584 
(b) is created by, and whose duties are provided by, statute; and
1585 
(c) performs its duties according to its own rules without supervision other than under
1586 
the general control of another person as provided by statute.
1587 
(32) "Road" includes:
1588 
(a) a public bridge;
1589 
(b) a county way;
1590 
(c) a county road;
1591 
(d) a common road; and
1592 
(e) a state road.
- 47 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1593 
(33) "Sex" means, in relation to an individual, the individual's biological sex, either male or
1594 
female, at birth, according to distinct reproductive roles as manifested by:
1595 
(a) sex and reproductive organ anatomy;
1596 
(b) chromosomal makeup; and
1597 
(c) endogenous hormone profiles.
1598 
(34) "Signature" includes a name, mark, or sign written with the intent to authenticate an
1599 
instrument or writing.
1600 
(35) "State," when applied to the different parts of the United States, includes a state,
1601 
district, or territory of the United States.
1602 
(36) "Swear" includes "affirm."
1603 
(37) "Testify" means to make an oral statement under oath or affirmation.
1604 
(38) "Uniformed services" means:
1605 
(a) the armed forces;
1606 
(b) the commissioned corps of the National Oceanic and Atmospheric Administration;
1607 
and
1608 
(c) the commissioned corps of the United States Public Health Service.
1609 
(39) "United States" includes each state, district, and territory of the United States of
1610 
America.
1611 
(40) "Utah Code" means the 1953 recodification of the Utah Code, as amended, unless the
1612 
text expressly references a portion of the 1953 recodification of the Utah Code as it
1613 
existed:
1614 
(a) on the day on which the 1953 recodification of the Utah Code was enacted; or
1615 
(b)(i) after the day described in Subsection (40)(a); and
1616 
(ii) before the most recent amendment to the referenced portion of the 1953
1617 
recodification of the Utah Code.
1618 
(41) "Vessel," when used with reference to shipping, includes a steamboat, canal boat, and
1619 
every structure adapted to be navigated from place to place.
1620 
(42)(a) "Veteran" means an individual who:
1621 
(i) has served in the United States Armed Forces for at least 180 days:
1622 
(A) on active duty; or
1623 
(B) in a reserve component, to include the National Guard; or
1624 
(ii) has incurred an actual service-related injury or disability while in the United
1625 
States Armed Forces regardless of whether the individual completed 180 days; and
1626 
(iii) was separated or retired under conditions characterized as honorable or general.
- 48 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1627 
(b) This definition is not intended to confer eligibility for benefits.
1628 
(43) "Will" includes a codicil.
1629 
(44) "Woman" means an adult human female.
1630 
(45) "Writ" means an order or precept in writing, issued in the name of:
1631 
(a) the state;
1632 
(b) a court; or
1633 
(c) a judicial officer.
1634 
(46) "Writing" includes:
1635 
(a) printing;
1636 
(b) handwriting; and
1637 
(c) information stored in an electronic or other medium if the information is retrievable
1638 
in a perceivable format.
1639 
Section 17.  Section 75-1-201 is amended to read:
1640 
75-1-201 . Title definitions.
1641 
      As used in this title:
1642 
(1) "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney,
1643 
an individual authorized to make decisions concerning another's health care, and an
1644 
individual authorized to make decisions for another under a natural death act.
1645 
(2) "Application" means a written request to the registrar for an order of informal probate or
1646 
appointment under Chapter 3, Part 3, Informal Probate and Appointment Proceedings.
1647 
(3)(a) "Beneficiary," as it relates to trust beneficiaries, includes:
1648 
(i) a person who has any present or future interest, vested or contingent; and
1649 
(ii) the owner of an interest by assignment or other transfer.
1650 
(b) "Beneficiary," as it relates to a charitable trust, includes any person entitled to
1651 
enforce the trust.
1652 
(c) "Beneficiary," as it relates to a beneficiary of a beneficiary designation, means a
1653 
beneficiary of:
1654 
(i) an insurance or annuity policy;
1655 
(ii) an account with POD designation;
1656 
(iii) a security registered in beneficiary form (TOD);
1657 
(iv) a pension, profit-sharing, retirement, or similar benefit plan; or
1658 
(v)  other nonprobate transfer at death.
1659 
(d) "Beneficiary," as it relates to a beneficiary designated in a governing instrument,
1660 
includes:
- 49 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1661 
(i) a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary
1662 
designation, a donee, appointee, or taker in default of a power of appointment; and
1663 
(ii) a person in whose favor a power of attorney or a power held in any individual,
1664 
fiduciary, or representative capacity is exercised.
1665 
(4) "Beneficiary designation" means a governing instrument naming a beneficiary of an
1666 
insurance or annuity policy, of an account with POD designation, of a security registered
1667 
in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit
1668 
plan, or other nonprobate transfer at death.
1669 
(5)(a) "Child" includes any individual entitled to take as a child under this title by
1670 
intestate succession from the parent whose relationship is involved.
1671 
(b) "Child" does not include an individual who is only a stepchild, a foster child, a
1672 
grandchild, or any more remote descendant.
1673 
(6)(a) "Claims," in respect to estates of decedents and protected persons, includes
1674 
liabilities of the decedent or protected person, whether arising in contract, in tort, or
1675 
otherwise, and liabilities of the estate which arise at or after the death of the decedent
1676 
or after the appointment of a conservator, including funeral expenses and expenses of
1677 
administration.
1678 
(b) "Claims" does not include estate or inheritance taxes, or demands or disputes
1679 
regarding title of a decedent or protected person to specific assets alleged to be
1680 
included in the estate.
1681 
(7) "Community property with a right of survivorship" means joint tenants with the right of
1682 
survivorship.
1683 
(8) "Conservator" means a person who is appointed by a court to manage the estate of a
1684 
protected person.
1685 
(9) "Court" means any of the courts of record in this state having jurisdiction in matters
1686 
relating to the affairs of decedents.
1687 
(10) "Descendant" means all of an individual's descendants of all generations, with the
1688 
relationship of parent and child at each generation being determined by the definition of
1689 
child and parent contained in this title.
1690 
(11) "Devise," when used as a noun, means a testamentary disposition of real or personal
1691 
property and, when used as a verb, means to dispose of real or personal property by will.
1692 
(12) "Devisee" means any person designated in a will to receive a devise.  For the purposes
1693 
of Chapter 3, Probate of Wills and Administration, in the case of a devise to an existing
1694 
trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee,
- 50 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1695 
and the beneficiaries are not devisees.
1696 
(13) "Disability" means cause for a protective order as described by Section 75-5-401.
1697 
(14) "Distributee" means any person who has received property of a decedent from his
1698 
personal representative other than as a creditor or purchaser.  A testamentary trustee is a
1699 
distributee only to the extent of distributed assets or increment thereto remaining in his
1700 
hands.  A beneficiary of a testamentary trust to whom the trustee has distributed
1701 
property received from a personal representative is a distributee of the personal
1702 
representative.  For purposes of this provision, "testamentary trustee" includes a trustee
1703 
to whom assets are transferred by will, to the extent of the devised assets.
1704 
(15) "Estate" includes the property of the decedent, trust, or other person whose affairs are
1705 
subject to this title as originally constituted and as it exists from time to time during
1706 
administration.
1707 
(16) "Exempt property" means that property of a decedent's estate which is described in
1708 
Section 75-2-403.
1709 
(17) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
1710 
(18) "Foreign personal representative" means a personal representative of another
1711 
jurisdiction.
1712 
(19) "Formal proceedings" means proceedings conducted before a judge with notice to
1713 
interested persons.
1714 
(20) "General personal representative" does not include a special administrator.
1715 
(21) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account
1716 
with POD designation, security registered in beneficiary form (TOD), pension,
1717 
profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a
1718 
power of appointment or a power of attorney, a supported decision-making agreement,
1719 
or a dispositive, appointive, or nominative instrument of any similar type.
1720 
(22)(a) "Guardian" means a person who has qualified as a guardian of a minor or
1721 
incapacitated person pursuant to testamentary or court appointment, or by written
1722 
instrument as provided in Section 75-5-202.5.
1723 
(b) "Guardian" does not include a person who is merely a guardian ad litem.
1724 
(23) "Heirs," except as controlled by Section 75-2-711, means persons, including the
1725 
surviving spouse and state, who are entitled under the statutes of intestate succession to
1726 
the property of a decedent.
1727 
(24) "Incapacitated" means a judicial determination after proof by clear and convincing
1728 
evidence that an adult's ability to do the following is impaired to the extent that the
- 51 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1729 
individual lacks the ability, even with appropriate technological assistance, to meet the
1730 
essential requirements for financial protection or physical health, safety, or self-care:
1731 
(a) receive and evaluate information;
1732 
(b) make and communicate decisions; or
1733 
(c) provide for necessities such as food, shelter, clothing, health care, or safety.
1734 
(25) "Incapacity" means incapacitated.
1735 
(26) "Informal proceedings" mean a proceeding conducted without notice to interested
1736 
persons by an officer of the court acting as a registrar for probate of a will or
1737 
appointment of a personal representative.
1738 
(27)(a) "Interested person" includes heirs, devisees, children, spouses, creditors,
1739 
beneficiaries, and any others having a property right in or claim against a trust estate
1740 
or the estate of a decedent, ward, or protected person. The meaning of interested
1741 
person as it relates to particular persons may vary from time to time and is
1742 
determined according to the particular purposes of, and matter involved in, any
1743 
proceeding.
1744 
(b) "Interested person" includes persons having priority for appointment as personal
1745 
representative, other fiduciaries representing interested persons, a settlor of a trust, if
1746 
living, or the settlor's legal representative, if any, if the settlor is living but
1747 
incapacitated.
1748 
(28) "Issue" means a descendant of an individual.
1749 
(29)(a) "Joint tenants with the right of survivorship" includes coowners of property held
1750 
under circumstances that entitle one or more to the whole of the property on the death
1751 
of the other.
1752 
(b) "Joint tenants with the right of survivorship" does not include forms of coownership
1753 
registration in which the underlying ownership of each party is in proportion to that
1754 
party's contribution.
1755 
(30) "Lease" includes an oil, gas, or other mineral lease.
1756 
(31) "Letters" includes letters testamentary, letters of guardianship, letters of
1757 
administration, and letters of conservatorship.
1758 
(32) "Minor" means a person who is under 18 years old.
1759 
(33) "Minor protected person" means a minor for whom a conservator has been appointed
1760 
because of minority.
1761 
(34) "Minor ward" means a minor for whom a guardian has been appointed solely because
1762 
of minority.
- 52 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1763 
(35) "Mortgage" means any conveyance, agreement, or arrangement in which property is
1764 
used as security.
1765 
(36) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at
1766 
the time of the decedent's death.
1767 
(37) "Organization" includes a corporation, limited liability company, business trust, estate,
1768 
trust, partnership, joint venture, association, government or governmental subdivision or
1769 
agency, or any other legal or commercial entity.
1770 
(38)(a) "Parent" includes any person entitled to take, or who would be entitled to take if
1771 
the child died without a will, as a parent under this title by intestate succession from
1772 
the child whose relationship is in question.
1773 
(b) "Parent" does not include any person who is only a stepparent, foster parent, or
1774 
grandparent.
1775 
(39) "Payor" means a trustee, insurer, business entity, employer, government, governmental
1776 
agency or subdivision, or any other person authorized or obligated by law or a governing
1777 
instrument to make payments.
1778 
(40) "Person" means an individual or an organization.
1779 
(41) "Personal representative" includes executor, administrator, successor personal
1780 
representative, special administrator, and persons who perform substantially the same
1781 
function under the law governing their status.
1782 
(42) "Petition" means a written request to the court for an order after notice.
1783 
(43) "Proceeding" includes action at law and suit in equity.
1784 
(44) "Property" includes both real and personal property or any interest therein and means
1785 
anything that may be the subject of ownership.
1786 
(45) "Protected person" means a person for whom a conservator has been appointed.
1787 
(46) "Protective proceeding" means a proceeding described in Section 75-5-401.
1788 
(47) "Record" means information that is inscribed on a tangible medium or that is stored in
1789 
an electronic or other medium and is retrievable in perceivable form.
1790 
(48) "Registrar" means the official of the court designated to perform the functions of
1791 
registrar as provided in Section 75-1-307.
1792 
(49) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of
1793 
indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease
1794 
or in payments out of production under such a title or lease, collateral trust certificate,
1795 
transferable share, voting trust certificate, and, in general, any interest or instrument
1796 
commonly known as a security, or any certificate of interest or participation, any
- 53 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1797 
temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or
1798 
right to subscribe to or purchase, any of the foregoing.
1799 
(50) "Settlement," in reference to a decedent's estate, includes the full process of
1800 
administration, distribution, and closing.
1801 
(51) "Sign" means, with present intent to authenticate or adopt a record other than a will:
1802 
(a) to execute or adopt a tangible symbol; or
1803 
(b) to attach to or logically associate with the record an electronic symbol, sound, or
1804 
process.
1805 
(52) "Special administrator" means a personal representative as described in Sections
1806 
75-3-614 through 75-3-618.
1807 
(53) "State" means a state of the United States, the District of Columbia, the
1808 
Commonwealth of Puerto Rico, any territory or insular possession subject to the
1809 
jurisdiction of the United States, or a Native American tribe or band recognized by
1810 
federal law or formally acknowledged by a state.
1811 
(54) "Successor personal representative" means a personal representative, other than a
1812 
special administrator, who is appointed to succeed a previously appointed personal
1813 
representative.
1814 
(55) "Successors" means persons, other than creditors, who are entitled to property of a
1815 
decedent under the decedent's will or this title.
1816 
(56) "Supervised administration" means the proceedings described in Chapter 3, Part 5,
1817 
Supervised Administration.
1818 
(57)(a) "Survive" means, except for Chapter 6, Part 3, Uniform Transfer on Death
1819 
Security Registration Act, that an individual has neither predeceased an event,
1820 
including the death of another individual, nor is considered to have predeceased an
1821 
event under Section 75-2-104 or 75-2-702.
1822 
(b) "Survive" includes its derivatives, such as "survives," "survived," "survivor," and
1823 
"surviving."
1824 
(58) "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
1825 
(59) "Testator" includes an individual of either sex.
1826 
(60)(a) "Trust" includes:
1827 
(i) a health savings account, as defined in Section 223of the Internal Revenue Code;
1828 
(ii) an express trust, private or charitable, with additions thereto, wherever and
1829 
however created; or
1830 
(iii) a trust created or determined by judgment or decree under which the trust is to be
- 54 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1831 
administered in the manner of an express trust.
1832 
(b) "Trust" does not include:
1833 
(i) a constructive trust;
1834 
(ii) a resulting trust;
1835 
(iii) a conservatorship;
1836 
(iv) a personal representative;
1837 
(v) a trust account as defined in Chapter 6, Nonprobate Transfers;
1838 
(vi) a custodial arrangement under Title 75A, Chapter 8, Uniform Transfers To
1839 
Minors Act;
1840 
(vii) a business trust providing for certificates to be issued to beneficiaries;
1841 
(viii) a common trust fund;
1842 
(ix) a voting trust;
1843 
(x) a preneed funeral plan under Title 58, Chapter 9, Funeral Services Licensing Act;
1844 
(xi) a security arrangement;
1845 
(xii) a liquidation trust;
1846 
(xiii) a trust for the primary purpose of paying debts, dividends, interest, salaries,
1847 
wages, profits, pensions, or employee benefits of any kind; or
1848 
(xiv) any arrangement under which a person is nominee or escrowee for another.
1849 
(61) "Trustee" includes an original, additional, and successor trustee, and cotrustee, whether
1850 
or not appointed or confirmed by the court.
1851 
(62) "Ward" means a person for whom a guardian has been appointed.
1852 
(63) "Will" includes codicil and any testamentary instrument which merely appoints an
1853 
executor, revokes or revises another will, nominates a guardian, or expressly excludes or
1854 
limits the right of an individual or class to succeed to property of the decedent passing
1855 
by intestate succession.
1856 
Section 18.  Section 75-5-301.5 is amended to read:
1857 
75-5-301.5 . Rights of a person alleged to be incapacitated -- Rights of an
1858 
incapacitated person.
1859 
(1) Except as otherwise provided by this chapter or any other law, a person alleged to be
1860 
incapacitated has the right to:
1861 
(a) be represented by counsel before a guardianship is imposed and have counsel
1862 
represent the person during the guardianship proceeding, except as provided in
1863 
Subsection 75-5-303(6)(e);
1864 
(b) receive a copy of all documents filed in a guardianship proceeding;
- 55 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1865 
(c) have a relative, physician, physician assistant, or any interested person speak about
1866 
or raise any issue of concern on behalf of the person during the guardianship
1867 
proceeding;
1868 
(d) receive information about guardianships from the court; and
1869 
(e) be treated with respect and dignity.
1870 
(2) For a guardianship granted before May 7, 2025, the rights of an incapacitated person for
1871 
whom a guardian is appointed are in accordance with the statutory provisions in effect as
1872 
of the date that the guardianship was granted, including, as applicable, Subsection
1873 
75-5-312(1)(c)(i) unless expressly limited by a court in the order of appointment.
1874 
(3) Except as otherwise provided by this chapter or any other law, for a guardianship
1875 
granted on or after May 7, 2025, an incapacitated person for whom a guardian is
1876 
appointed has the right to:
1877 
(a) have counsel represent the incapacitated person at any time after the guardian is
1878 
appointed;
1879 
(b) have a relative, physician, physician assistant, or any interested person speak about
1880 
or raise any issue of concern on behalf of the person in any court hearing about the
1881 
guardianship;
1882 
(c) receive a copy of all documents filed in court regarding the guardianship;
1883 
(d) receive information about guardianships from the court;
1884 
(e) ask questions and express concerns or complaints about a guardian and the actions of
1885 
a guardian to the court;
1886 
[(f) participate in developing an individualized plan for the incapacitated person's care,
1887 
including:]
1888 
[(i) managing the incapacitated person's assets and property;]
1889 
[(ii) determining the incapacitated person's residence; and]
1890 
[(iii) determining the services to be received by the incapacitated person;]
1891 
[(g) be given consideration in regards to the incapacitated person's current and
1892 
previously stated desires, preferences for health care and medical treatment, and
1893 
religious and moral beliefs;]
1894 
[(h) remain as independent as possible, including giving deference to the incapacitated
1895 
person's preference for the incapacitated person's residence and standard of living:]
1896 
[(i) as expressed or demonstrated before a determination of capacity was made; or]
1897 
[(ii) as currently expressed or demonstrated by the incapacitated person if the
1898 
preference is reasonable under the circumstances;]
- 56 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1899 
[(i)] (f) be granted the greatest degree of freedom possible that is consistent with the
1900 
reasons for the guardianship;
1901 
[(j) be able to exercise control over all aspects of the incapacitated person's life that are
1902 
not granted to the guardian in the order of appointment;]
1903 
[(k) engage in any activity that the court has not expressly reserved for the guardian,
1904 
including marriage or domestic partnership, traveling, working, or having a driver
1905 
license;]
1906 
[(l)] (g) be treated with respect and dignity;
1907 
[(m)] (h) be treated fairly by the incapacitated person's guardian;
1908 
[(n) maintain privacy and confidentiality in personal matters;]
1909 
[(o) receive telephone calls and personal mail and associate with relatives and
1910 
acquaintances unless the guardian and the court determine that the association should
1911 
be restricted or prohibited in accordance with Section 75-5-312.5;]
1912 
[(p) receive timely, effective, and appropriate health care and medical treatment that
1913 
does not violate the incapacitated person's rights;]
1914 
[(q)] (i) have all services provided by a guardian at a reasonable rate of compensation;
1915 
[(r)] (j) have a court review any request for payment by a guardian to avoid excessive or
1916 
unnecessary fees or duplicative billing;
1917 
[(s)] (k) receive prudent financial management of the incapacitated person's property;
1918 
[(t)] (l) subject to Subsections 75-5-312(4)(h) and 75-5-417(4), and subject to the
1919 
exception provided in Subsection 75-5-312(7)(d), receive a copy of an accounting
1920 
report regarding the incapacitated person's estate that is submitted to the court by the
1921 
guardian under Section 75-5-312 or the conservator under Section 75-5-417 if a
1922 
conservator is appointed for the incapacitated person; and
1923 
[(u) receive and control the incapacitated person's salary;]
1924 
[(v) maintain a bank account and manage the incapacitated person's personal money; and]
1925 
[(w)] (m) ask the court to:
1926 
(i) review the management activity of a guardian if a dispute cannot be resolved
1927 
regarding the guardian's management;
1928 
(ii) continue to review the need for a guardianship or to modify or terminate a
1929 
guardianship pursuant to Section 75-5-306 and Section 75-5-307; and
1930 
(iii) enter an order restoring the incapacitated person's capacity at the earliest possible
1931 
time pursuant to Section 75-5-306 and Section 75-5-307.
1932 
[(3)] (4) The court may not waive, suspend, or limit a right described in Subsection (3).
- 57 - 1st Sub. (Buff) H.B. 334	03-07 11:11
1933 
(5) Except as otherwise provided by this chapter or any other law, and subject to Subsection
1934 
(6), for a guardianship granted on or after May 7, 2025, an incapacitated person for
1935 
whom a guardian is appointed has the right, to the extent practicable, to:
1936 
(a) participate in developing an individualized plan for the incapacitated person's care,
1937 
including:
1938 
(i) managing the incapacitated person's assets and property;
1939 
(ii) determining the incapacitated person's residence; and
1940 
(iii) determining the services to be received by the incapacitated person;
1941 
(b) be given consideration in regards to the incapacitated person's current and previously
1942 
stated desires, preferences for health care and medical treatment, and religious and
1943 
moral beliefs;
1944 
(c) remain as independent as possible, including giving deference to the incapacitated
1945 
person's preference for the incapacitated person's residence and standard of living:
1946 
(i) as expressed or demonstrated before a determination of capacity was made; or
1947 
(ii) as currently expressed or demonstrated by the incapacitated person if the
1948 
preference is reasonable under the circumstances;
1949 
(d) be able to exercise control over all aspects of the incapacitated person's life that are
1950 
not granted to the guardian in an order of appointment of a limited guardianship;
1951 
(e) maintain privacy and confidentiality in personal matters, to the extent that privacy
1952 
and confidentiality does not inhibit the ability of the incapacitated person's guardian
1953 
to fulfill the guardian's responsibilities or perform the guardian's duties;
1954 
(f) receive telephone calls and personal mail and associate with relatives and
1955 
acquaintances unless the guardian and the court determine that the association should
1956 
be restricted or prohibited in accordance with Section 75-5-312.5;
1957 
(g) receive timely, effective, and appropriate health care and medical treatment that does
1958 
not violate the incapacitated person's rights;
1959 
(h) receive an allowance or control a reasonable amount of the incapacitated person's
1960 
earnings or other income; and
1961 
(i) collaborate with the incapacitated person's guardian to use appropriate financial tools
1962 
to maintain a bank account and manage the incapacitated person's personal money.
1963 
(6) The court may waive or limit a right described in Subsection (5) if:
1964 
(a) an interested party requests the waiver or limitation; and
1965 
(b) the court finds, by clear and convincing evidence, that there is a compelling reason
1966 
for the waiver or limitation.
- 58 - 03-07 11:11	1st Sub. (Buff) H.B. 334
1967 
(7)(a) The rights of an incapacitated person under this section do not abrogate any
1968 
remedy provided by law.
1969 
(b) This section may not be interpreted in a way that would permit or justify any action
1970 
that violates a provision in Sections 76-5-111 through 76-5-111.4 or Section
1971 
76-5-112.5.
1972 
[(4)] (8) Any right described in this section may be:
1973 
(a) addressed in a guardianship proceeding; or
1974 
(b) enforced through a private cause of action.
1975 
Section 19.  Section 75-5-303 is amended to read:
1976 
75-5-303 . Procedure for court appointment of a guardian of an incapacitated
1977 
person.
1978 
(1) An allegedly incapacitated person or any person interested in [the] an allegedly
1979 
incapacitated person's welfare may petition for a finding of incapacity and appointment
1980 
of a guardian.
1981 
(2)(a) Upon the filing of a petition, the court shall set a date for hearing on the issues of
1982 
incapacity.
1983 
(b) Unless the allegedly incapacitated person has counsel of the person's own choice, the
1984 
court shall appoint an attorney to represent the person in the proceeding the cost of
1985 
which shall be paid by the allegedly incapacitated person[ alleged to be incapacitated],
1986 
unless the allegedly incapacitated person and the allegedly incapacitated person's
1987 
parents are indigent.
1988 
(c) If the court determines that the petition is without merit, the attorney fees and court
1989 
costs shall be paid by the person filing the petition.
1990 
(d) If the court appoints the petitioner or the petitioner's nominee as guardian of the
1991 
incapacitated person, regardless of whether the nominee is specified in the moving
1992 
petition or nominated during the proceedings, the petitioner shall be entitled to
1993 
receive from the incapacitated person reasonable attorney fees and court costs
1994 
incurred in bringing, prosecuting, or defending the petition.
1995 
(3) The legal representation of [the] an allegedly incapacitated person by an attorney shall
1996 
terminate upon the appointment of a guardian, unless:
1997 
(a) there are separate conservatorship proceedings still pending before the court
1998 
subsequent to the appointment of a guardian;
1999 
(b) there is a timely filed appeal of the appointment of the guardian or the determination
2000 
of incapacity; or
- 59 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2001 
(c) upon an express finding of good cause, the court orders otherwise.
2002 
(4)(a) The court may appoint a health care provider, as that term is defined in Section
2003 
75A-3-101, to examine the functional capabilities and limitations of the allegedly
2004 
incapacitated person.
2005 
(b) An appointed health care provider shall submit to the court a report assessing, within
2006 
the scope of the health care provider's license and experience, the functional
2007 
capabilities and limitations of the allegedly incapacitated person to, with or without
2008 
appropriate technological assistance:
2009 
(i) receive and evaluate information;
2010 
(ii) make and communicate decisions; and
2011 
(iii) provide for necessities such as food, shelter, clothing, health care, or safety.
2012 
(5) [The person alleged to be incapacitated may be examined by a physician or physician
2013 
assistant appointed by the court who shall submit a report in writing to the court and
2014 
may be interviewed by a visitor sent by the court. The visitor also may]
2015 
(a) The court may appoint a court visitor to:
2016 
(i) interview the person seeking appointment as guardian[,] ;
2017 
(ii) visit the present place of abode of the allegedly incapacitated person[ alleged to
2018 
be incapacitated] and the place it is proposed that the allegedly incapacitated
2019 
person will be detained or reside if the requested appointment is made[,] ; or
2020 
(iii) conduct other investigations or observations as directed by the court[, and submit
2021 
a report in writing to the court].
2022 
(b) The court visitor shall submit a written report to the court.
2023 
[(5)] (6)(a) The allegedly incapacitated person[ alleged to be incapacitated] shall be
2024 
present at the hearing [in person ]and see or hear all evidence bearing upon the
2025 
person's condition.
2026 
(b) [If the person seeking the guardianship requests a waiver of presence of the person
2027 
alleged to be incapacitated,] The court may only waive the presence of the allegedly
2028 
incapacitated person if all of the following criteria are met:
2029 
(i) the person is represented by an attorney;
2030 
(ii) [ the court shall order an investigation by ]a court visitor is appointed to
2031 
investigate, the costs of which shall be paid by the person seeking the guardianship[.] 
2032 
; and
2033 
(iii) following the investigation, the court finds that there is no reasonable
2034 
accommodation that will enable the allegedly incapacitated person to be present
- 60 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2035 
for or participate in the hearing.
2036 
[(b)] (c) [The investigation by a] A court visitor is not required to investigate under
2037 
Subsection (6)(b)(ii) if there is clear and convincing evidence from a physician that
2038 
the person alleged to be incapacitated [has:] is experiencing a state of extended
2039 
comatosis that is likely to persist through the time of the hearing.
2040 
[(i) fourth stage Alzheimer's Disease;]
2041 
[(ii) extended comatosis; or]
2042 
[(iii)(A) an intellectual disability; and]
2043 
[(B) an intelligence quotient score under 25.]
2044 
[(c)] (d) [The] In addition to the rights described in Section 75-5-301.5, an allegedly
2045 
incapacitated person[ alleged to be incapacitated] is entitled to be represented by
2046 
counsel, to present evidence, to cross-examine witnesses, including the
2047 
court-appointed [physician] health care provider and the court visitor, and to trial by
2048 
jury.  The issue may be determined at a closed hearing without a jury if the allegedly
2049 
incapacitated person[ alleged to be incapacitated] or the person's counsel so requests.
2050 
[(d)] (e) Counsel for the allegedly incapacitated person[ alleged to be incapacitated, as
2051 
defined in Subsection 75-1-201(22),] is not required if all of the following criteria are
2052 
met:
2053 
(i) the allegedly incapacitated person is the biological or adopted child of the
2054 
petitioner;
2055 
(ii) the value of the allegedly incapacitated person's entire estate does not exceed
2056 
$20,000 as established by an affidavit of the petitioner in accordance with Section
2057 
75-3-1201;
2058 
(iii) the allegedly incapacitated person's appearance at the hearing has not been
2059 
waived and the person appears in court with the petitioner, as described in
2060 
Subsection (6)(a);
2061 
(iv) the allegedly incapacitated person is given the opportunity to communicate, to
2062 
the extent possible, the person's acceptance of or objection to the appointment of [
2063 
petitioner] the proposed guardian, including the opportunity to communicate that
2064 
acceptance or objection to the court and, as applicable, to the person's supporters,
2065 
health care providers, and attorney;
2066 
(v) no attorney from the state court's list of attorneys who have volunteered to
2067 
represent respondents in guardianship proceedings is able to provide counsel to
2068 
the person within 60 days of the date of the [appointment] hearing, as described in
- 61 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2069 
Subsection (2)(b);
2070 
(vi) the court is satisfied that counsel is not necessary [in order ]to protect the
2071 
interests of the allegedly incapacitated person; and
2072 
(vii) the court appoints a court visitor and receives a report from the court visitor
2073 
under Subsection [(4)] (5).
2074 
Section 20.  Section 75-5-312 is amended to read:
2075 
75-5-312 . General powers and duties of guardian -- Penalties.
2076 
(1)(a) A guardian of an incapacitated person shall diligently and in good faith carry out
2077 
the specific duties, powers, and rights that the guardian is granted:
2078 
(i) in an order of appointment by a court under Section 75-5-304; and
2079 
(ii) under this section.
2080 
(b) A court may, in the order of appointment, place specific limitations on the guardian's
2081 
power, duties, and rights.
2082 
(c)(i) Except as provided in this Subsection (1), a guardian has the same powers,
2083 
rights, and duties respecting the ward that a parent has respecting the parent's
2084 
unemancipated minor.
2085 
(ii) A guardian is not liable to a third person for acts of the guardian's ward solely by
2086 
reason of the relationship described in Subsection (1)(c)(i).
2087 
(d) In carrying out duties, powers, and rights that a guardian is granted, the guardian
2088 
shall encourage the ward, to the extent practicable, to participate in decisions,
2089 
exercise self-determination, act on the ward's own behalf, and develop or regain the
2090 
capacity to manage the ward's personal affairs.
2091 
(e) To the extent known, a guardian, in making decisions about the ward, shall consider
2092 
the expressed desires, preferences, and personal values of the ward.
2093 
(2) Except as modified by an order of appointment under Section 75-5-304, a guardian has
2094 
the following duties and powers:
2095 
(a) to the extent that it is consistent with the terms of any order by a court relating to
2096 
detention or commitment of the ward, a guardian is entitled to custody of the person
2097 
of the ward and may establish the ward's place of residence within, or outside of, this
2098 
state, except that the guardian must give consideration to the ward's preference for
2099 
the ward's place of residence in accordance with Section 75-5-301.5;
2100 
(b) if a guardian is entitled to custody of the ward, the guardian shall provide for the
2101 
care, comfort, and maintenance of the ward and, whenever appropriate, arrange for
2102 
the ward's training and education;
- 62 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2103 
(c) without regard to custodial rights of the ward's person, a guardian shall take
2104 
reasonable care of the ward's clothing, furniture, vehicles, and other personal effects
2105 
and commence protective proceedings if other property of the ward is in need of
2106 
protection;
2107 
(d) a guardian may give the consent or approval that may be necessary to enable the
2108 
ward to receive medical or other professional care, counsel, treatment, or service,
2109 
except that the guardian must:
2110 
(i) give consideration to the ward's current and previously stated desires for health
2111 
care and medical treatment in accordance with Section 75-5-301.5; and
2112 
(ii) respect the ward's right to receive timely, effective, and appropriate health care in
2113 
accordance with Section 75-5-301.5;
2114 
(e) a guardian is required to notify any interested person named in the order of
2115 
appointment under Subsection 75-5-304(4) of any significant health care or treatment
2116 
received by the ward;
2117 
(f) a guardian is required to immediately notify persons who request notification and are
2118 
not restricted in associating with the ward in accordance with Section 75-5-312.5 of:
2119 
(i) the ward's admission to a hospital for three or more days or to a hospice program;
2120 
(ii) the ward's death; or
2121 
(iii) the arrangements for the disposition of the ward's remains;
2122 
(g) a guardian is required to immediately notify all interested persons if the guardian
2123 
reasonably believes that the ward's death is likely to occur within the next 10 days,
2124 
based on:
2125 
(i) the guardian's own observations; or
2126 
(ii) information from the ward's physician or other medical care providers;
2127 
(h) a guardian is required to:
2128 
(i) unless emergency conditions exist:
2129 
(A) file with the court a notice of the guardian's intent to move the ward; and
2130 
(B) serve the notice on all interested persons at least 10 days before the day on
2131 
which the guardian moves the ward; or
2132 
(ii) take reasonable steps to:
2133 
(A) notify all interested persons of the guardian's intent to move the ward; and
2134 
(B) file the notice of the move with the court as soon as practicable following the
2135 
earlier of the move or the date when the guardian's intention to move the ward
2136 
is made known to the ward, the ward's care giver, or any other third party;
- 63 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2137 
(i) except as otherwise provided by Section 75-5-312.5, a guardian may not restrict or
2138 
prohibit a ward's association, as defined in Section 75-5-312.5, with family, relatives,
2139 
or friends;
2140 
(j) if no conservator for the estate of the ward has been appointed, a guardian may:
2141 
(i) institute proceedings to compel any person under a duty to support the ward or to
2142 
pay sums for the welfare of the ward to perform that duty;
2143 
(ii) compel the production of the ward's estate documents, including the ward's will,
2144 
trust, power of attorney, and any advance health care directive; and
2145 
(iii) receive money and tangible property deliverable to the ward and apply the
2146 
money and property for support, care, and education of the ward, except that:
2147 
(A) the guardian may not use funds from the ward's estate for room and board that
2148 
the guardian or the guardian's spouse, parent, or child have furnished the ward
2149 
unless a charge for the service is approved by order of the court made upon
2150 
notice to at least one adult relative in the nearest degree of kinship to the ward
2151 
in which there is an adult; and
2152 
(B) the guardian shall exercise care to conserve any excess for the ward's needs;
2153 
(k) if no conservator for the estate of the ward has been appointed:
2154 
(i) for all estates in excess of $50,000 excluding the residence owned by the ward, a
2155 
guardian shall send a report with a full accounting to the court on an annual basis;
2156 
or
2157 
(ii) for estates less than $50,000 excluding the residence owned by the ward, a
2158 
guardian shall fill out an informal annual report and mail the report to the court;
2159 
(l) a guardian shall provide an annual accounting of the status of the ward, including a
2160 
report of the physical and mental condition of the ward, the ward's estate that has
2161 
been subject to the guardian's possession, the ward's place of residence and others
2162 
living in the same household, to the court in the petition or the annual report as
2163 
required under Subsection (2)(k); and
2164 
(m) a guardian shall comply with standards set by the National Guardianship
2165 
Association for guardians to the extent that the standards are applicable to the
2166 
guardian.
2167 
(3) For the purposes of Subsections (2)(f), (g), and (h), an interested person is a person
2168 
required to receive notice in guardianship proceedings as described in Section 75-5-309.
2169 
(4)(a) An accounting report under Subsection (2)(k) shall include a statement regarding:
2170 
(i) all assets at the beginning and end of the reporting year;
- 64 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2171 
(ii) any income received during the year;
2172 
(iii) any disbursements for the support of the ward;
2173 
(iv) any investments or trusts that are held for the ward's benefit;
2174 
(v) any expenditures or fees charged to the ward's estate; and
2175 
(vi) any other expenses incurred by the ward's estate.
2176 
(b) The court may require additional information in an accounting report under
2177 
Subsection (2)(k).
2178 
(c) The Judicial Council shall approve forms for the accounting reports described in
2179 
Subsection (2)(k).
2180 
(d) An annual accounting report under Subsection (2)(k) shall be examined and
2181 
approved by the court.
2182 
(e) If the ward's income is limited to a federal or state program requiring an annual
2183 
accounting report, a copy of that report may be submitted to the court in lieu of the
2184 
required annual accounting report under Subsection (2)(k).
2185 
(f)(i) A corporate fiduciary is not required to petition the court, but shall submit the
2186 
corporate fiduciary's internal report annually to the court.
2187 
(ii) The report under Subsection (4)(f)(i) shall be examined and approved by the court.
2188 
(g) If a fee is paid for an accounting of an estate, a fee may not be charged for an
2189 
accounting of the status of a ward under Subsection (2)(l).
2190 
(h) Upon a motion and after a hearing, the court may alter the frequency of, or the
2191 
information included in, an accounting report provided to a ward in accordance with
2192 
Subsection [75-5-301.5(2)(t)] 75-5-301.5(3)(l).
2193 
(5) If a conservator has been appointed for a ward:
2194 
(a) all of the ward's estate received by the guardian in excess of those funds expended to
2195 
meet current expenses for support, care, and education of the ward shall be paid to
2196 
the conservator for management as provided in this chapter; and
2197 
(b) the guardian shall account to the conservator for funds expended.
2198 
(6)(a) Any guardian of a person for whom a conservator has been appointed:
2199 
(i) shall control the custody and care of the ward; and
2200 
(ii) is entitled to receive reasonable sums for services and for room and board
2201 
furnished to the ward as agreed upon between the guardian and the conservator if
2202 
the amounts agreed upon are reasonable under the circumstances.
2203 
(b) The guardian may request the conservator to expend the ward's estate by payment to
2204 
third persons or institutions for the ward's care and maintenance.
- 65 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2205 
(7)(a) The court may impose a penalty in an amount not to exceed $5,000 if a guardian:
2206 
(i) makes a substantial misstatement on filings of annual reports;
2207 
(ii) is guilty of gross impropriety in handling the property of the ward; or
2208 
(iii) willfully fails to file the report required by this section after receiving written
2209 
notice from the court of the failure to file and after a grace period of two months
2210 
has elapsed.
2211 
(b) The court may order restitution of funds misappropriated from the estate of a ward.
2212 
(c) A penalty under this Subsection (7) shall be paid by the guardian and may not be
2213 
paid by the ward or the ward's estate.
2214 
(d) The provisions and penalties in Subsection (2)(k) or (l) governing annual reports do
2215 
not apply if the guardian or a coguardian is the parent of the ward.
2216 
(8) A person who refuses to accept the authority of a guardian with authority over financial
2217 
decisions to transact business with the assets of the ward after receiving a certified copy
2218 
of letters of guardianship is liable for costs, expenses, attorney fees, and damages if the
2219 
court determines that the person did not act in good faith in refusing to accept the
2220 
authority of the guardian.
2221 
Section 21.  Section 75-5-417 is amended to read:
2222 
75-5-417 . General duty of conservator.
2223 
(1) A conservator shall act as a fiduciary and shall observe the standards of care as set forth
2224 
in Section 75-7-902.
2225 
(2)(a) For all estates in excess of $50,000 excluding the residence owned by the ward,
2226 
the conservator shall send a report with a full accounting to the court on an annual
2227 
basis.
2228 
(b) For estates less than $50,000 excluding the residence owned by the ward, the
2229 
conservator shall fill out an informal annual report and mail the report to the court.
2230 
(c) A report under Subsection (2)(a) or (b) shall include a statement regarding:
2231 
(i) all assets at the beginning and end of the reporting year;
2232 
(ii) any income received during the year;
2233 
(iii) any disbursements for the support of the ward;
2234 
(iv) any investments or trusts that are held for the ward's benefit;
2235 
(v) any expenditures or fees charged to the ward's estate; and
2236 
(vi) any other expenses incurred by the ward's estate.
2237 
(d) The Judicial Council shall approve the forms for the accounting reports described in
2238 
Subsections (2)(a) and (b).
- 66 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2239 
(e) An annual accounting report under Subsection (2)(a) or (b) shall be examined and
2240 
approved by the court.
2241 
(3)(a) Corporate fiduciaries are not required to fully petition the court, but shall submit
2242 
their internal report annually to the court.
2243 
(b) A report under Subsection (3)(a) shall be examined and approved by the court.
2244 
(4) Upon a motion and after a hearing, the court may alter the frequency of, or the
2245 
information included in, an accounting report provided to a ward in accordance with
2246 
Subsection [75-5-301.5(2)(t)] 75-5-301.5(3)(l).
2247 
(5)(a) The court may impose a fine in an amount not to exceed $5,000, if, after receiving
2248 
written notice of the failure to file and after a grace period of two months have
2249 
elapsed, a conservator or corporate fiduciary:
2250 
(i) makes a substantial misstatement on filings of any required annual reports;
2251 
(ii) is guilty of gross impropriety in handling the property of the ward; or
2252 
(iii) willfully fails to file the report required by this section.
2253 
(b) The court may also order restitution of funds misappropriated from the estate of a
2254 
ward.
2255 
(c) The penalty shall be paid by the conservator or corporate fiduciary and may not be
2256 
paid by the estate.
2257 
(6) These provisions and penalties governing annual reports do not apply if the conservator
2258 
is the parent of the ward.
2259 
Section 22.  Section 75-5-701 is enacted to read:
2260 
 
Part 7. Supported Decision-making Agreements
2261 
75-5-701 . Definitions.
2262 
      As used in this part:
2263 
(1) "Abuse" means the same as that term is defined in Section 26B-6-201.
2264 
(2) "Coercion" means influencing or attempting to influence a principal using force, threats,
2265 
or intimidation.
2266 
(3) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec. 160.103.
2267 
(4) "Exploitation" means the same as that term is defined in Section 26B-6-201.
2268 
(5) "Good faith" means honesty in fact in the conduct or transaction concerned.
2269 
(6) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, 50
2270 
Pub. L. No. 104-191, 110 Stat. 1936, as amended.
2271 
(7) "Neglect" means the same as that term is defined in Section 26B-6-201.
2272 
(8) "Principal" means an individual who:
- 67 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2273 
(a) is 18 years old or older;
2274 
(b) has a disability, as that term is defined in Section 26B-6-801; and
2275 
(c) has entered into a supported decision-making agreement with at least one supporter.
2276 
(9) "Protected health information" means the same as that term is defined in 45 C.F.R. Sec.
2277 
160.103.
2278 
(10)(a) "Solicit" means to ask, command, encourage, importune, urge, or request.
2279 
(b) "Solicit" does not include providing information, materials, resources, or education
2280 
materials to an individual.
2281 
(11) "Qualifying person" means a person who has a legal right to receive notice regarding,
2282 
or legal decision-making authority for, an individual seeking to enter into a supported
2283 
decision-making agreement, which may include:
2284 
(a) the agent for a power of attorney;
2285 
(b) the agent for an advance health care directive; or
2286 
(c) the personal representative of a will or the trustee of a trust.
2287 
(12) "Supported decision-making" means the process of supporting and accommodating an
2288 
individual in the decision-making process to make, communicate, and effectuate life
2289 
decisions, without impeding the self-determination of the individual.
2290 
(13) "Supported decision-making agreement" means an agreement between a principal and
2291 
at least one supporter, subject to the requirements described in Section 75-5-704.
2292 
(14) "Supporter" means an individual:
2293 
(a) who is 18 years old or older;
2294 
(b) who is not being paid to provide support to the principal, unless the individual is
2295 
receiving caregiver compensation through the Division of Services for People with
2296 
Disabilities or is a sibling of the principal who cares for the principal;
2297 
(c) who does not have any of the following:
2298 
(i) a substantiated allegation of abuse, neglect, or exploitation;
2299 
(ii) a protective or restraining order; or
2300 
(iii) a conviction for:
2301 
(A) harm of another;
2302 
(B) theft; or
2303 
(C) financial crime; and
2304 
(d) who has agreed to provide specified assistance to a principal by entering into a
2305 
supported decision-making agreement with the principal.
2306 
(15) "Undue influence" means the same as that term is defined in Section 26B-6-201.
- 68 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2307 
Section 23.  Section 75-5-702 is enacted to read:
2308 
75-5-702 . Purposes of part.
2309 
      The purposes of this part are to:
2310 
(1) provide a principal assistance in:
2311 
(a) gathering and assessing information;
2312 
(b) understanding options, responsibilities, and consequences of a decision; and
2313 
(c) communicating decisions for a principal if the principal wants assistance with
2314 
communicating decisions;
2315 
(2) give a supporter legal status, as specified in a supported decision-making agreement, to
2316 
be with a principal, to access information on behalf of a principal, and to participate in
2317 
discussions with others when a principal is making decisions or seeking to obtain
2318 
information; and
2319 
(3) enable a supporter to assist in making and communicating decisions for a principal, but
2320 
not to substitute as the decision maker for a principal.
2321 
Section 24.  Section 75-5-703 is enacted to read:
2322 
75-5-703 . Interpretation of part.
2323 
      This part shall be construed and applied in accordance with the following principles:
2324 
(1) a principal should be able to:
2325 
(a) live in the manner in which the principal wishes; and
2326 
(b) make decisions about accepting or refusing support, assistance, or protection, as long
2327 
as doing so does not cause serious bodily injury, as that term is defined in Section
2328 
26B-5-301, to the principal, or harm to others;
2329 
(2) a principal should be informed about and, to the best of the principal's abilities,
2330 
participate in the management of the principal's affairs;
2331 
(3) a principal should receive the most effective, yet least restrictive and intrusive, form of
2332 
support, assistance, or protection when the principal is unable to manage the principal's
2333 
affairs alone; and
2334 
(4) the values, beliefs, wishes, cultural norms, and traditions that a principal holds should
2335 
be respected in supporting the principal.
2336 
Section 25.  Section 75-5-704 is enacted to read:
2337 
75-5-704 . Supported decision-making agreement.
2338 
(1) Subject to Subsections (2) and (6), an individual may enter into a supported
2339 
decision-making agreement at any time if:
2340 
(a) the individual enters into the agreement voluntarily, without coercion or undue
- 69 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2341 
influence, and without being solicited to enter into the agreement; and
2342 
(b) the individual understands the nature and effect of the agreement.
2343 
(2)(a) If the individual seeking to enter into a supported decision-making agreement has
2344 
a court-appointed guardian, court-appointed conservator, or qualifying person, the
2345 
guardian, conservator, or qualifying person shall be given:
2346 
(i) notice and an opportunity to participate in all discussions related to a proposed
2347 
supported decision-making agreement; and
2348 
(ii) 14 days to review a proposed supported decision-making agreement to determine
2349 
whether the proposed agreement includes an area over which the guardian,
2350 
conservator, or qualifying person has been granted legal decision-making
2351 
authority.
2352 
(b) If a guardian, conservator, or qualifying person determines, pursuant to Subsection
2353 
(2)(a), that a proposed supported decision-making agreement includes an area over
2354 
which the guardian, conservator, or qualifying person has been granted
2355 
decision-making authority:
2356 
(i) the supported decision-making agreement is not valid without the signature of the
2357 
guardian, conservator, or qualifying person; and
2358 
(ii) the proposed supported decision-making agreement shall describe how the
2359 
guardian, conservator, or qualifying person will be provided timely notice of and
2360 
an opportunity to participate in any discussion between parties to the supported
2361 
decision-making agreement that relate to an area over which the guardian,
2362 
conservator, or qualifying person has been granted legal decision-making
2363 
authority.
2364 
(c) If a guardian, conservator, or qualifying person described in Subsection (2)(a)
2365 
determines that a proposed supported decision-making agreement includes an area
2366 
over which the guardian, conservator, or other person has not been granted legal
2367 
decision-making authority, nothing in this part shall be construed to:
2368 
(i) require that the guardian, conservator, or qualifying person be excluded from any
2369 
discussion relating to that area; or
2370 
(ii) preclude the parties to the proposed supported decision-making agreement from
2371 
giving the guardian, conservator, or qualifying person notice and an opportunity to
2372 
participate in any discussion relating to that area.
2373 
(3) A supported decision-making agreement shall:
2374 
(a) be in writing;
- 70 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2375 
(b) state the date on which the agreement is effective;
2376 
(c) designate at least one supporter;
2377 
(d) describe:
2378 
(i) how the principal uses supported decision-making to make decisions;
2379 
(ii) the rights of the principal;
2380 
(iii) the responsibilities of each supporter;
2381 
(iv) the decision-making supports and accommodations the principal chooses to
2382 
receive from each supporter;
2383 
(v) the types of decisions, if any, with which a supporter is not authorized to assist
2384 
the principal;
2385 
(e) include the ink or electronic signature of:
2386 
(i) the individual seeking to enter into the supported decision-making agreement;
2387 
(ii) each supporter;
2388 
(iii) a guardian, conservator, or qualifying person, if required under Subsection (2);
2389 
and
2390 
(iv)(A) two witnesses; or
2391 
(B) a notary public; and
2392 
(f) describe how any perceived or actual conflict of interest between a supporter and the
2393 
principal will be mitigated.
2394 
(4)(a) A supported decision-making agreement executed other than in this state is valid
2395 
in this state if, when the supported decision-making agreement was executed, the
2396 
execution complied with the law of the jurisdiction that determines the meaning and
2397 
effect of the supported decision-making agreement.
2398 
(b) The meaning and effect of a supported decision-making agreement is determined by
2399 
the law of the jurisdiction indicated in the supported decision-making agreement and,
2400 
in the absence of an indication of jurisdiction, by the law of the jurisdiction in which
2401 
the supported decision-making agreement was executed.
2402 
(5)(a) A supported decision-making agreement may include a release or other document
2403 
by which the principal authorizes a supporter to access the principal's confidential
2404 
information, subject to the terms of the supported decision-making agreement
2405 
described in Subsection (3) and the supporter's duties described in Section 75-5-705.
2406 
(b) Before a covered entity may share a principal's protected health information with a
2407 
supporter, the principal shall sign a HIPAA consent form authorizing release of the
2408 
protected health information to the supporter.
- 71 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2409 
(c) Nothing in this part shall be construed to alter or preempt the requirements for
2410 
protecting health information under HIPAA.
2411 
(6) Each supporter shall include with the supporter's signature:
2412 
(a) a description of the supporter's relationship to the principal;
2413 
(b) a statement of the supporter's willingness to act as a supporter;
2414 
(c) an acknowledgment of the supporter's duties; and
2415 
(d) an attestation that the supporter:
2416 
(i) agrees to honor the right of the principal to make decisions;
2417 
(ii) will not make decisions for the principal, including health care decisions; and
2418 
(iii) will respect and work to further the independence of the principal.
2419 
(7) A supported decision-making agreement may do one or more of the following:
2420 
(a) specify a time period for which the supported decision-making agreement is valid;
2421 
(b) designate more than one supporter;
2422 
(c) designate an alternate individual to act in the place of a supporter under
2423 
circumstances specified in the supported decision-making agreement; or
2424 
(d) authorize a supporter to share information with another supporter or other individual
2425 
named in the supported decision-making agreement.
2426 
Section 26.  Section 75-5-705 is enacted to read:
2427 
75-5-705 . Supporter duties.
2428 
(1) A supporter shall:
2429 
(a) act with the care, competence, and diligence ordinarily exercised by individuals in
2430 
similar circumstances, and in accordance with the supporter's skills or expertise;
2431 
(b) act in good faith;
2432 
(c) comply with the terms of the supported decision-making agreement;
2433 
(d) maintain records, which the supporter shall make available to the principal upon
2434 
request, concerning:
2435 
(i) the supporter's actions under the supported decision-making agreement; and
2436 
(ii) how the principal communicates and expresses opinions to the supporter; and
2437 
(e) ensure that all information collected on behalf of the principal pursuant to the
2438 
supported decision-making agreement and this section is:
2439 
(i) kept confidential, as appropriate;
2440 
(ii) not subject to unauthorized access, use, or disclosure; and
2441 
(iii) properly disposed of when appropriate.
2442 
(2) Except as otherwise provided in the supported decision-making agreement or
- 72 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2443 
Subsection (3), a supporter may, as directed by the principal:
2444 
(a) assist the principal in understanding information, options, responsibilities, and
2445 
consequences of the principal's life decisions, including decisions relating to the
2446 
principal's affairs or supportive services;
2447 
(b) help the principal access, obtain, and understand information that is relevant to a life
2448 
decision, including medical, psychological, financial, or educational decisions, or any
2449 
treatment records or records related to the management of the principal's affairs or
2450 
supportive services;
2451 
(c) assist the principal with finding, obtaining, and making appointments for supportive
2452 
services, and implement the principal's plans for supportive services;
2453 
(d) help the principal monitor information about the principal's affairs or supportive
2454 
services, including tracking future necessary or recommended services;
2455 
(e) ascertain the wishes and decisions of the principal, assist in communicating those
2456 
wishes and decisions to others, and advocate to ensure that the wishes and decisions
2457 
of the principal are implemented; or
2458 
(f) assist the principal with obtaining information to which the principal is entitled.
2459 
(3) A supporter may not:
2460 
(a) coerce, exploit, exert undue influence on, or make decisions on behalf of the
2461 
principal;
2462 
(b) sign for the principal or provide an electronic signature of the principal to a third
2463 
party;
2464 
(c) make health care decisions for the principal; or
2465 
(d) without the principal's consent:
2466 
(i) obtain information that is not reasonably related to matters with which the
2467 
supporter is authorized to support or assist the principal pursuant to the supported
2468 
decision-making agreement;
2469 
(ii) use information acquired in connection with the supported decision-making
2470 
agreement for a purpose other than supporting or assisting the principal pursuant
2471 
to the supported decision-making agreement; or
2472 
(iii) delegate the supporter's duties to a third party.
2473 
Section 27.  Section 75-5-706 is enacted to read:
2474 
75-5-706 . Revocation -- Withdrawal.
2475 
(1) A principal may revoke a supported decision-making agreement at any time by
2476 
providing written notice to all other parties to the agreement.
- 73 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2477 
(2) A supporter may withdraw from a supported decision-making agreement at any time by
2478 
providing written notice to all other parties to the agreement.
2479 
(3) A written notice of revocation or withdrawal under this section may be provided by
2480 
electronic means.
2481 
Section 28.  Section 75-5-707 is enacted to read:
2482 
75-5-707 . Termination.
2483 
      Unless otherwise provided in the supported decision-making agreement, a supported
2484 
decision-making agreement is terminated upon the occurrence of any of the following:
2485 
(1) the death of the principal;
2486 
(2) revocation by the principal pursuant to Section 75-5-706;
2487 
(3) as to a specific supporter, if the supporter is no longer qualified by reason of failure to
2488 
meet the requirements described in Subsection 75-5-701(14);
2489 
(4) withdrawal by all of the supporters pursuant to Section 75-5-706 without the
2490 
designation of a successor supporter;
2491 
(5) the principal's execution of a valid power of attorney, healthcare directive, or
2492 
declaration for mental health treatment, except to the extent the executed document
2493 
expressly continues, in whole or in part, the supported decision-making agreement; or
2494 
(6) a court's:
2495 
(a) determination that the principal does not have capacity to execute or consent to a
2496 
supported decision-making agreement; or
2497 
(b) appointment of a temporary or permanent guardian or conservator, unless the court's
2498 
order of appointment:
2499 
(i) modifies but continues the supported decision-making agreement; and
2500 
(ii) limits the powers and duties of the guardian.
2501 
Section 29.  Section 75-5-708 is enacted to read:
2502 
75-5-708 . Impact of supported decision-making agreement.
2503 
(1) A decision or request made or communicated by a principal with the assistance of a
2504 
supporter in accordance with the terms of a supported decision-making agreement and
2505 
this part shall, for the purposes of any provision of law, be recognized as the decision or
2506 
request of the principal and may be enforced on the same basis as a decision or request
2507 
of the principal without support.
2508 
(2) The availability of a supported decision-making agreement does not limit the informal
2509 
use of supported decision making, or preclude judicial consideration of informal
2510 
supported decision-making arrangements as a less restrictive alternative to a
- 74 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2511 
guardianship or conservatorship.
2512 
(3) Execution of a supported decision-making agreement may not be a condition of
2513 
participating in any activity, service, or program.
2514 
(4) A court may not consider an individual's execution of a supported decision-making
2515 
agreement as evidence of the individual's incapacity.
2516 
(5) The existence of a supported decision-making agreement does not preclude the principal
2517 
from acting independently of the supported decision-making agreement.
2518 
Section 30.  Section 75-5-709 is enacted to read:
2519 
75-5-709 . Liability.
2520 
(1) A person who is not a party to a supported decision-making agreement, including a
2521 
provider of health care or financial services, that in good faith accepts or relies upon a
2522 
supported decision-making agreement:
2523 
(a) may presume that the signatures on the supported decision-making agreement are
2524 
genuine, unless the person has actual knowledge that any signature on the supported
2525 
decision-making agreement is not genuine;
2526 
(b) may presume that a supported decision-making agreement is valid and that a
2527 
purported supporter's authority is valid, unless the person has actual knowledge that
2528 
the supported decision-making agreement or the purported supporter's authority has
2529 
been revoked, terminated, or is otherwise void or invalid; and
2530 
(c) is not subject to civil or criminal liability, or discipline for unprofessional conduct,
2531 
for giving effect to a provision in a supported decision-making agreement, or for
2532 
following the direction of a supporter given in accordance with the supported
2533 
decision-making agreement.
2534 
(2) If a person has reason to believe a principal is or has been the subject of abuse, neglect,
2535 
or exploitation, or observes a principal being subjected to conditions or circumstances
2536 
that would reasonably result in abuse, neglect, or exploitation, the person shall
2537 
immediately report the suspected abuse, neglect, or exploitation to Adult Protective
2538 
Services.
2539 
(3) The provisions of this part may not be construed to affect mandatory reporting
2540 
obligations related to abuse, neglect, or exploitation.
2541 
(4) A supporter who violates this part or the terms of a supported decision-making
2542 
agreement is liable to the principal or the principal's successor in interest for the amount
2543 
required to restore the value of the principal's property to what it would have been had
2544 
the violation not occurred.
- 75 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2545 
(5) A transaction between a supporter and a principal that occurs while a supported
2546 
decision-making agreement is in effect, or while the supporter is in a position of trust
2547 
with the principal, and from which the supporter obtains a benefit or advantage, is
2548 
voidable by the principal unless the supporter establishes that the transaction was fair to
2549 
the principal.
2550 
Section 31.  Section 77-15-2 is amended to read:
2551 
77-15-2 . Definitions.
2552 
      As used in this chapter:
2553 
(1) "Competency evaluation" means an evaluation conducted by a forensic evaluator to
2554 
determine if an individual is competent to stand trial.
2555 
(2) "Competent to stand trial" means that a defendant has:
2556 
(a) a rational and factual understanding of the criminal proceedings against the
2557 
defendant and of the punishment specified for the offense charged; and
2558 
(b) the ability to consult with the defendant's legal counsel with a reasonable degree of
2559 
rational understanding in order to assist in the defense.
2560 
(3) "Department" means the Department of Health and Human Services.
2561 
(4) "Forensic evaluator" means a licensed mental health professional who:
2562 
(a) is not involved in the defendant's treatment;
2563 
(b) is trained and qualified by the department to conduct a competency evaluation, a
2564 
restoration screening, and a progress toward competency evaluation, based on
2565 
knowledge, experience, or education relating to:
2566 
(i) intellectual functioning or psychopathology; and
2567 
(ii) the legal system and the rights of a defendant in a criminal trial; and
2568 
(c) if under contract with the department, demonstrates ongoing education and training
2569 
relating to forensic mental health in accordance with rules established by the
2570 
department in accordance with Title 63G, Chapter 3, Utah Administrative
2571 
Rulemaking Act.
2572 
(5) "Incompetent to proceed" means that a defendant is not competent to stand trial as a
2573 
result of:
2574 
(a) mental illness; or
2575 
(b) intellectual disability.
2576 
[(6) "Intellectual disability" means an intellectual disability as defined in the current edition
2577 
of the Diagnostic and Statistical Manual of Mental Disorders published by the American
2578 
Psychiatric Association.]
- 76 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2579 
[(7)] (6) "Mental illness" means the same as that term is defined in Section 26B-5-301.
2580 
[(8)] (7) "Petition" means a petition to request a court to determine whether a defendant is
2581 
competent to stand trial.
2582 
[(9)] (8) "Progress toward competency evaluation" means an evaluation to determine
2583 
whether an individual who is receiving restoration treatment is:
2584 
(a) competent to stand trial;
2585 
(b) incompetent to proceed but has a substantial probability of becoming competent to
2586 
stand trial in the foreseeable future; or
2587 
(c) incompetent to proceed and does not have a substantial probability of becoming
2588 
competent to stand trial in the foreseeable future.
2589 
[(10)] (9) "Restoration treatment" means training and treatment that is:
2590 
(a) provided to an individual who is incompetent to proceed;
2591 
(b) tailored to the individual's particular impairment to competency; and
2592 
(c) limited to the purpose of restoring the individual to competency.
2593 
Section 32.  Section 77-15-5 is amended to read:
2594 
 
CHAPTER 15. DEFENDANT'S COMPETENCY TO PROCEED
2595 
77-15-5 . Order for hearing -- Stay of other proceedings -- Examinations of
2596 
defendant -- Scope of examination and report.
2597 
(1) A court in which criminal proceedings are pending shall stay all criminal proceedings, if:
2598 
(a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
2599 
(b) the court raises the issue of the defendant's competency under Section 77-15-4.
2600 
(2) The court in which the petition described in Subsection (1)(a) is filed:
2601 
(a) shall inform the court in which criminal proceedings are pending of the petition, if
2602 
the petition is not filed in the court in which criminal proceedings are pending;
2603 
(b) shall review the allegations of incompetency;
2604 
(c) may hold a limited hearing solely for the purpose of determining the sufficiency of
2605 
the petition, if the court finds the petition is not clearly sufficient on its face;
2606 
(d) shall hold a hearing, if the petition is opposed by either party; and
2607 
(e) may not order an examination of the defendant or order a hearing on the mental
2608 
condition of the defendant unless the court finds that the allegations in the petition
2609 
raise a bona fide doubt as to the defendant's competency to stand trial.
2610 
(3)(a) If the court finds that there is a bona fide doubt as to the defendant's competency
2611 
to stand trial, the court shall order the department to have one or two forensic
2612 
evaluators complete a competency evaluation for the defendant in accordance with
- 77 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2613 
Subsection (3)(b) and provide a report to the court regarding the competency of the
2614 
defendant to stand trial.
2615 
(b) The court shall order the department to have the defendant evaluated by one forensic
2616 
evaluator unless:
2617 
(i) the defendant is charged with a capital felony; or
2618 
(ii) the defendant is charged with a felony that is not a capital felony, and the court
2619 
determines, based on the allegations in the petition, that good cause exists to order
2620 
two competency evaluations.
2621 
(c)(i) This section does not prohibit a party from seeking an additional forensic
2622 
evaluator to conduct a competency evaluation of the defendant.
2623 
(ii) If a party seeks an additional competency evaluation under this Subsection (3)(c),
2624 
the party shall:
2625 
(A) select the additional forensic evaluator; and
2626 
(B) pay the costs of the additional forensic evaluator.
2627 
(d) The stipulation by parties to a bona fide doubt as to the defendant's competency to
2628 
stand trial alone may not take the place of a competency evaluation ordered under
2629 
this Subsection (3).
2630 
(e) In accordance with state licensing laws, the court may only order the department to
2631 
provide an initial evaluation and progress toward competency evaluation for a
2632 
defendant who is located within the state.
2633 
(4)(a) If the petition or other information sufficiently raises concerns that the defendant
2634 
may have an intellectual disability, at least one forensic evaluator who is experienced
2635 
in assessments of intellectual disabilities shall conduct a competency evaluation.
2636 
(b) The petitioner or other party, as directed by the court or requested by the department,
2637 
shall provide to the forensic evaluator nonmedical information and materials relevant
2638 
to a determination of the defendant's competency, including the charging document,
2639 
arrest or incident reports pertaining to the charged offense, known criminal history
2640 
information, and known prior mental health evaluations and treatments.
2641 
(c) For purposes of a competency evaluation, a custodian of mental health records
2642 
pertaining to the defendant, including the defendant's prior mental health evaluations
2643 
or records relating to the defendant's substance use disorder, may provide the records
2644 
to:
2645 
(i) with the defendant's consent, a forensic evaluator or the department on the
2646 
department's request; or
- 78 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2647 
(ii) a forensic evaluator by court order.
2648 
(d) A court order under Subsection (4)(c) shall include a protective order that expires
2649 
180 days after the day on which:
2650 
(i) the defendant is found guilty;
2651 
(ii) the defendant enters a guilty plea;
2652 
(iii) the court sentences the defendant; or
2653 
(iv) if the case is appealed, the day on which the final appeal is resolved.
2654 
(e)(i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f),
2655 
the court shall order the forensic evaluator to destroy all records subject to the
2656 
protective order within the 180 day period described in Subsection (4)(d).
2657 
(ii) A forensic evaluator is not required to destroy the records subject to the
2658 
protective order if destroying the records is a violation of ethical standards to
2659 
which the forensic evaluator is subject for occupational licensing.
2660 
(f) The court may extend the protective order described in Subsection (4)(d) if:
2661 
(i) the court finds the defendant incompetent to proceed without a substantial
2662 
probability that the defendant will become competent in the foreseeable future;
2663 
(ii) the prosecutor or another individual indicates to the court that the prosecutor or
2664 
other individual will seek civil commitment of the defendant under Section
2665 
77-15-6; and
2666 
(iii) the court orders the records be maintained and used only for the purposes of
2667 
examining the defendant in connection with the petition for civil commitment.
2668 
(g) An order for a competency evaluation may not contain an order for any other inquiry
2669 
into the mental state of the defendant that is not described in this Subsection (4).
2670 
(5) Pending a competency evaluation, unless the court or the department directs otherwise,
2671 
the defendant shall be retained in the same custody or status that the defendant was in at
2672 
the time the examination was ordered.
2673 
(6) In the conduct of a competency evaluation and in a report to the court, a forensic
2674 
evaluator shall consider and address, in addition to any other factors determined to be
2675 
relevant by the forensic evaluator:
2676 
(a)[(i)] the impact of the defendant's mental illness or intellectual disability on the
2677 
defendant's present ability to:
2678 
[(A)] (i) rationally and factually understand the criminal proceedings against the
2679 
defendant; and
2680 
[(B)] (ii) consult with the defendant's legal counsel with a reasonable degree of
- 79 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2681 
rational understanding in order to assist in the defense;
2682 
(b) in making the determinations described in Subsection (6)(a), the forensic evaluator
2683 
shall consider, as applicable[:]
2684 
[(i)]   the defendant's present ability to:
2685 
[(A)] (i) understand the charges or allegations against the defendant;
2686 
[(B)] (ii) communicate facts, events, and states of mind;
2687 
[(C)] (iii) understand the range of possible penalties associated with the charges or
2688 
allegations against the defendant;
2689 
[(D)] (iv) engage in reasoned choice of legal strategies and options;
2690 
[(E)] (v) understand the adversarial nature of the proceedings against the defendant;
2691 
[(F)] (vi) manifest behavior sufficient to allow the court to proceed; and
2692 
[(G)] (vii) testify relevantly, if applicable; and
2693 
(c) whether the defendant is exhibiting false or exaggerated physical or psychological
2694 
symptoms relevant to the defendant's capacity to stand trial.
2695 
(7) Upon a determination that the defendant is incompetent to proceed, the forensic
2696 
evaluator shall indicate in the report to the court:
2697 
(a) the factors that contribute to the defendant's incompetency, including the nature of
2698 
the defendant's mental illness or intellectual disability, if any, and its relationship to
2699 
the factors contributing to the defendant's incompetency;
2700 
(b) whether there is a substantial probability that:
2701 
(i) restoration treatment may bring the defendant to competency to stand trial in the
2702 
foreseeable future; or
2703 
(ii) the defendant cannot become competent to stand trial in the foreseeable future;
2704 
(c) whether the defendant would benefit from restoration treatment; and
2705 
(d) if the forensic evaluator makes the determination under Subsection (7)(b)(i) or (7)(c),
2706 
an explanation of the reason for the determination and a summary of the treatment
2707 
provided to the defendant in the past.
2708 
(8)(a) A forensic evaluator shall provide an initial report to the court and the prosecuting
2709 
and defense attorneys within 30 days of the receipt of the court's order.  The report
2710 
shall inform the court of the examiner's opinion concerning the competency of the
2711 
defendant to stand trial.
2712 
(b)(i) If the forensic evaluator is unable to complete the report in the time specified in
2713 
Subsection (8)(a), the forensic evaluator shall give written notice to the court.
2714 
(ii) A forensic evaluator who provides the notice described in Subsection (8)(b)(i)
- 80 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2715 
shall receive a 15-day extension, giving the forensic evaluator a total of 45 days
2716 
after the day on which the forensic evaluator received the court's order to conduct
2717 
a competency evaluation and file a report.
2718 
(iii) The court may further extend the deadline for completion of the evaluation and
2719 
report if the court determines that there is good cause for the extension.
2720 
(iv) Upon receipt of an extension described in Subsection (8)(b)(iii), the forensic
2721 
evaluator shall file the report as soon as reasonably possible.
2722 
(9) Any written report submitted by a forensic evaluator shall:
2723 
(a) identify the case ordered for evaluation by the case number;
2724 
(b) describe the procedures, techniques, and tests used in the examination and the
2725 
purpose or purposes for each, the time spent by the forensic evaluator with the
2726 
defendant for purposes of the examination, and the compensation to be paid to the
2727 
evaluator for the report;
2728 
(c) state the forensic evaluator's clinical observations, findings, and opinions on each
2729 
factor described in Subsection (6); and
2730 
(d) identify the sources of information used by the forensic evaluator and present the
2731 
basis for the forensic evaluator's clinical findings and opinions.
2732 
(10)(a) Any statement made by the defendant in the course of any competency
2733 
examination, whether the examination is with or without the consent of the
2734 
defendant, any testimony by a forensic evaluator based upon the statement, and any
2735 
other fruits of the statement may not be admitted in evidence against the defendant in
2736 
any criminal proceeding except on an issue respecting mental condition on which the
2737 
defendant has introduced evidence, unless the evidence is relevant to a determination
2738 
of the defendant's competency.
2739 
(b) Before examining the defendant, the forensic evaluator shall specifically advise the
2740 
defendant of the limits of confidentiality as provided under Subsection (10)(a).
2741 
(11)(a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
2742 
competency hearing. The hearing shall be held not less than five and not more than
2743 
15 days after the day on which the court received the forensic evaluators' reports,
2744 
unless for good cause the court sets a later date.
2745 
(b) Any person directed by the department to conduct the competency evaluation may be
2746 
subpoenaed to testify at the hearing.
2747 
(c) The court may call any forensic evaluator to testify at the hearing who is not called
2748 
by the parties. [ ]If the court calls a forensic evaluator, counsel for the parties may
- 81 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2749 
cross-examine the forensic evaluator.
2750 
(d)(i) If the forensic evaluators are in conflict as to the competency of the defendant,
2751 
all forensic evaluators should be called to testify at the hearing if reasonably
2752 
available.
2753 
(ii) A conflict in the opinions of the forensic evaluators does not require the
2754 
appointment of an additional forensic evaluator unless the court finds good cause
2755 
for the appointment.
2756 
(iii) If a party seeks an additional competency evaluation under this Subsection (11),
2757 
that party shall:
2758 
(A) select the additional forensic evaluator; and
2759 
(B) pay the costs of the additional forensic evaluator.
2760 
(12)(a)(i) A defendant shall be presumed competent to stand trial unless the court, by
2761 
a preponderance of the evidence, finds the defendant incompetent to proceed.
2762 
(ii) The burden of proof is upon the proponent of incompetency at the hearing.
2763 
(b) An adjudication of incompetent to proceed does not operate as an adjudication of
2764 
incompetency to give informed consent for medical treatment or for any other
2765 
purpose, unless specifically set forth in the court order.
2766 
(13) In determining the defendant's competency to stand trial, the court shall consider the
2767 
totality of the circumstances, including:
2768 
(a) the petition;
2769 
(b) the defendant's criminal and arrest history;
2770 
(c) prior mental health evaluations and treatments provided to the court by the defendant;
2771 
(d) subject to Subsection (15), whether the defendant was found incompetent to proceed
2772 
in a criminal action unrelated to the charged offense for which the petition is filed;
2773 
(e) the testimony of lay witnesses, if any;
2774 
(f) the forensic evaluator's testimony and report;
2775 
(g) the materials on which the forensic evaluator's report is based; and
2776 
(h) any other relevant evidence or consideration bearing on the competency of the
2777 
defendant.
2778 
(14) If the court finds the defendant incompetent to proceed:
2779 
(a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
2780 
(i) include findings addressing each of the factors in Subsection (6)(a);
2781 
(ii) include a transportation order, if necessary;
2782 
(iii) be accompanied by the forensic evaluators' reports, any psychiatric,
- 82 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2783 
psychological, or social work reports submitted to the court relative to the mental
2784 
condition of the defendant, and any other documents made available to the court
2785 
by either the defense or the prosecution, pertaining to the defendant's current or
2786 
past mental condition; and
2787 
(iv) be sent by the court to the department; and
2788 
(b) the prosecuting attorney shall provide to the department:
2789 
(i) the charging document and probable cause statement, if any;
2790 
(ii) arrest or incident reports prepared by law enforcement and pertaining to the
2791 
charged offense; and
2792 
(iii) additional supporting documents.
2793 
(15) The court may not find the defendant incompetent to proceed based solely on a court
2794 
having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6
2795 
in an unrelated criminal action if the court in the unrelated criminal action ordered the
2796 
release more than one year before the day on which the petition described in Subsection
2797 
(13)(a) is filed.
2798 
(16) The court may make any reasonable order to ensure compliance with this section.
2799 
(17) Failure to comply with this section does not result in the dismissal of criminal charges.
2800 
Section 33.  Section 77-15-6 is amended to read:
2801 
77-15-6 . Commitment on finding of incompetency to stand trial -- Subsequent
2802 
hearings -- Notice to prosecuting attorneys.
2803 
(1)(a) Except as provided in Subsection (5), if after a hearing a court finds a defendant to
2804 
be incompetent to proceed, the court shall order the defendant committed to the
2805 
department for restoration treatment.
2806 
(b)(i) Except as provided in Subsection (1)(b)(ii), the court may recommend but may
2807 
not order placement of a defendant who is found incompetent to proceed.
2808 
(ii) The court may order that the defendant be placed in a secure setting rather than a
2809 
nonsecure setting.
2810 
(c) Following restoration screening, the department's designee shall designate and
2811 
inform the court of the specific placement and restoration treatment program for the
2812 
defendant.
2813 
(d) Restoration treatment shall be of sufficient scope and duration to:
2814 
(i) restore the defendant to competency; or
2815 
(ii) determine whether the defendant can be restored to competency in the foreseeable
2816 
future.
- 83 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2817 
(e) A defendant who a court determines is incompetent to proceed may not be held for
2818 
restoration treatment longer than:
2819 
(i) the time reasonably necessary to determine that the defendant cannot become
2820 
competent to stand trial in the foreseeable future; and
2821 
(ii) the maximum period of incarceration that the defendant could receive if the
2822 
defendant were convicted of the most severe offense of the offenses charged.
2823 
(2)(a) A defendant who is receiving restoration treatment shall receive a progress toward
2824 
competency evaluation, by:
2825 
(i) a forensic evaluator, designated by the department; and
2826 
(ii) an additional forensic evaluator, if requested by a party and paid for by the
2827 
requesting party.
2828 
(b) A forensic evaluator shall complete a progress toward competency evaluation and
2829 
submit a report within 90 days after the day on which the forensic evaluator receives
2830 
the commitment order from the department.
2831 
(c) The report shall:
2832 
(i) assess whether the defendant is exhibiting false or exaggerated physical or
2833 
psychological symptoms;
2834 
(ii) describe any diagnostic instruments, methods, and observations used by the
2835 
evaluator to make the determination;
2836 
(iii) describe the defendant's current mental illness or intellectual disability, if any;
2837 
(iv) state the forensic evaluator's opinion as to the effect of any false or exaggerated
2838 
symptoms on the defendant's competency to stand trial;
2839 
(v) assess the facility's or program's capacity to provide appropriate restoration
2840 
treatment for the defendant;
2841 
(vi) assess the nature of restoration treatment provided to the defendant;
2842 
(vii) assess what progress the defendant has made toward competency restoration,
2843 
with respect to the factors identified by the court in its initial order;
2844 
(viii) assess whether the defendant can reasonably be restored to competency in the
2845 
foreseeable future given the restoration treatment currently being provided and the
2846 
facility's or program's capacity to provide appropriate restoration treatment for the
2847 
defendant;
2848 
(ix) assess the likelihood of restoration to competency, the amount of time estimated
2849 
to achieve competency, or the amount of time estimated to determine whether
2850 
restoration to competency may be achieved; and
- 84 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2851 
(x) include a statement by the facility's treating physician regarding:
2852 
(A) whether the defendant is taking any antipsychotic medication as prescribed;
2853 
(B) whether ongoing administration of antipsychotic medication is necessary to
2854 
maintain the defendant's competency to stand trial;
2855 
(C) whether antipsychotic medication is substantially likely to maintain the
2856 
defendant's competency to stand trial;
2857 
(D) whether antipsychotic medication is substantially unlikely to produce side
2858 
effects which would significantly interfere with the defendant's ability to assist
2859 
in the defendant's defense;
2860 
(E) that no less intrusive means are available, and whether any of those means
2861 
have been attempted to render the defendant competent; and
2862 
(F) whether antipsychotic medication is medically appropriate and in the
2863 
defendant's best medical interest in light of the defendant's medical condition.
2864 
(3)(a) The court on its own motion or upon motion by either party or the department
2865 
may appoint an additional forensic evaluator to conduct a progress toward
2866 
competency evaluation.
2867 
(b) If the court appoints an additional forensic evaluator upon motion of a party, that
2868 
party shall pay the costs of the additional forensic evaluator.
2869 
(4)(a) Within 15 days after the day on which the court receives the forensic evaluator's
2870 
report of the progress toward competency evaluation, the court shall hold a hearing to
2871 
review the defendant's competency.
2872 
(b) At the hearing, the burden of proving that the defendant is competent to stand trial is
2873 
on the proponent of competency.
2874 
(c) Following the hearing, the court shall determine by a preponderance of evidence
2875 
whether the defendant:
2876 
(i) is competent to stand trial;
2877 
(ii) is competent, but requires the ongoing administration of antipsychotic medication
2878 
in order to maintain the defendant's competency to stand trial;
2879 
(iii) is incompetent to proceed, with a substantial probability that the defendant may
2880 
become competent in the foreseeable future; or
2881 
(iv) is incompetent to proceed, without a substantial probability that the defendant
2882 
may become competent in the foreseeable future.
2883 
(5)(a) If at any time the court determines that the defendant is competent to stand trial,
2884 
the court shall:
- 85 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2885 
(i) proceed with the trial or other procedures as may be necessary to adjudicate the
2886 
charges;
2887 
(ii) order that the defendant be returned to the placement and status that the defendant
2888 
was in at the time when the petition for the adjudication of competency was filed
2889 
or raised by the court, unless the court determines that placement of the defendant
2890 
in a less restrictive environment is more appropriate;
2891 
(iii) order the ongoing administration of antipsychotic medication to the defendant for
2892 
the purpose of maintaining the defendant's competency to stand trial, if the court
2893 
finds that the administration of antipsychotic medication is necessary to maintain
2894 
the defendant's competency to stand trial under Subsection (4)(c)(ii); and
2895 
(iv) require the agency, jail, or prison with custody over the defendant to report to the
2896 
court any noncompliance with the court's orders under this Subsection (5) within
2897 
48 hours of the noncompliance.
2898 
(b) If the court determines that the defendant is incompetent to proceed with a
2899 
substantial probability that the defendant may become competent in the foreseeable
2900 
future, the court may order that the defendant remain committed to the department or
2901 
the department's designee for the purpose of restoration treatment.
2902 
(c)(i) If the court determines that the defendant is incompetent to proceed without a
2903 
substantial probability that the defendant may become competent in the
2904 
foreseeable future, the court shall order the defendant released from commitment
2905 
to the department, unless the prosecutor or another individual informs the court
2906 
that civil commitment proceedings pursuant to Title 26B, Chapter 5, Health Care -
2907 
Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of
2908 
Services for People with Disabilities, will be initiated.
2909 
(ii) The commitment proceedings must be initiated by a petition filed within seven
2910 
days after the day on which the court makes the determination described in
2911 
Subsection (4)(c)(iv), unless the court finds that there is good cause to delay the
2912 
initiation of the civil commitment proceedings.
2913 
(iii) The court may order the defendant to remain committed to the department until
2914 
the civil commitment proceedings conclude.
2915 
(iv) If the defendant is civilly committed and admitted to a secure setting, the
2916 
department shall provide notice to the court that adjudicated the defendant
2917 
incompetent to proceed and to the prosecution agency that prosecuted the case at
2918 
least [60] 15 days before any proposed release of the committed individual from
- 86 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2919 
the secure setting.
2920 
(v) If the prosecution agency that prosecuted the case intends to refile charges against
2921 
the committed individual:
2922 
(A) the prosecution agency shall provide written notice of that intent to the
2923 
department within 15 days after the department provides the notice described
2924 
in Subsection (5)(c)(iv); and
2925 
(B) the department shall postpone release of the committed individual for at least
2926 
30 days after the day on which the department receives the written notice of
2927 
intent from the prosecution agency.
2928 
(vi) If the prosecution agency that prosecuted the case refiles charges against the
2929 
committed individual and the individual's competency is raised, the department
2930 
shall postpone release of the individual until the competency proceedings
2931 
conclude.
2932 
(6)(a) At any time following the court's order under Subsection (5)(a)(iii), the defendant,
2933 
the prosecuting attorney, the department, the treating physician, or the agency, jail, or
2934 
prison with custody over the defendant, may notify the court of the need to review
2935 
the medication order under Subsection (5)(a)(iii) for continued appropriateness and
2936 
feasibility.
2937 
(b) The court shall set the matter for a hearing if the notification under Subsection (6)(a)
2938 
establishes good cause to review the matter.
2939 
(7) If a court, under Subsection (5)(b), extends a defendant's commitment, the court shall
2940 
schedule a competency review hearing for the earlier of:
2941 
(a) the department's best estimate of when the defendant may be restored to competency;
2942 
or
2943 
(b) three months after the day on which the court determined under Subsection (5)(b) to
2944 
extend the defendant's commitment.
2945 
(8) Unless the defendant is charged with a crime listed in Subsection (9), if a defendant is
2946 
incompetent to proceed by the day of the competency review hearing that follows the
2947 
extension of a defendant's commitment, the court shall:
2948 
(a) order the defendant be:
2949 
(i) released or temporarily detained pending civil commitment proceedings as
2950 
described in Subsection (5)(c); and
2951 
(ii) terminate the defendant's commitment to the department for restoration treatment;
2952 
or
- 87 - 1st Sub. (Buff) H.B. 334	03-07 11:11
2953 
(b) if the forensic evaluator reports to the court that there is a substantial probability that
2954 
restoration treatment will bring the defendant to competency to stand trial in the
2955 
foreseeable future, extend the defendant's commitment for restoration treatment up to
2956 
45 additional days.
2957 
(9) If the defendant is charged with aggravated murder, murder, attempted murder,
2958 
manslaughter, or a first degree felony and the court determines that the defendant is
2959 
making reasonable progress towards restoration of competency at the time of the hearing
2960 
held pursuant to Subsection (7), the court may extend the commitment for a period not
2961 
to exceed nine months for the purpose of restoration treatment, with a mandatory review
2962 
hearing at the end of the nine-month period.
2963 
(10) Unless the defendant is charged with aggravated murder or murder, if, at the
2964 
nine-month review hearing described in Subsection (9), the court determines that the
2965 
defendant is incompetent to proceed, the court shall:
2966 
(a)(i) order the defendant be released or temporarily detained pending civil
2967 
commitment proceedings as provided in Subsection (5)(c); and
2968 
(ii) terminate the defendant's commitment to the department for restoration treatment;
2969 
or
2970 
(b) if the forensic evaluator reports to the court that there is a substantial probability that
2971 
restoration treatment will bring the defendant to competency to stand trial in the
2972 
foreseeable future, extend the defendant's commitment for restoration treatment for
2973 
up to 135 additional days.
2974 
(11) If the defendant is charged with aggravated murder or murder and the court determines
2975 
that the defendant is making reasonable progress towards restoration of competency at
2976 
the time of the nine-month review hearing described in Subsection (9), the court may
2977 
extend the commitment for a period not to exceed 24 months for the purpose of
2978 
restoration treatment.
2979 
(12) If the court extends the defendant's commitment term under Subsection (11), the court
2980 
shall hold a hearing no less frequently than at 12-month intervals following the
2981 
extension for the purpose of determining the defendant's competency status.
2982 
(13) If, at the end of the 24-month commitment period described in Subsection (11), the
2983 
court determines that the defendant is incompetent to proceed, the court shall:
2984 
(a)(i) order the defendant be released or temporarily detained pending civil
2985 
commitment proceedings as provided in Subsection (5)(c); and
2986 
(ii) terminate the defendant's commitment to the department for restoration treatment;
- 88 - 03-07 11:11	1st Sub. (Buff) H.B. 334
2987 
or
2988 
(b) if the forensic evaluator reports to the court that there is a substantial probability that
2989 
restoration treatment will bring the defendant to competency to stand trial in the
2990 
foreseeable future, extend the defendant's commitment for restoration treatment for
2991 
up to 12 additional months.
2992 
(14)(a) Neither release from a pretrial incompetency commitment under the provisions
2993 
of this section nor civil commitment requires dismissal of criminal charges.
2994 
(b) The court may retain jurisdiction over the criminal case and may order periodic
2995 
reviews.
2996 
(15) A defendant who is civilly committed pursuant to Title 26B, Chapter 5, Health Care -
2997 
Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of Services
2998 
for People with Disabilities, may still be adjudicated competent to stand trial under this
2999 
chapter.
3000 
(16)(a) The remedy for a violation of the time periods specified in this section, other
3001 
than those specified in Subsection (5)(c), (8), (10), or (13), shall be a motion to
3002 
compel the hearing, or mandamus, but not release from detention or dismissal of the
3003 
criminal charges.
3004 
(b) The remedy for a violation of the time periods specified in Subsection (5)(c), (8), (9),
3005 
or (13), or is not dismissal of the criminal charges.
3006 
(17) In cases in which the treatment of the defendant is precluded by court order for a
3007 
period of time, that time period may not be considered in computing time limitations
3008 
under this section.
3009 
(18)(a) If, at any time, the defendant becomes competent to stand trial while the
3010 
defendant is committed to the department, the clinical director of the Utah State
3011 
Hospital, the department, or the department's designee shall certify that fact to the
3012 
court.
3013 
(b) The court shall conduct a competency review hearing:
3014 
(i) within 15 working days after the day on which the court receives the certification
3015 
described in Subsection (18)(a); or
3016 
(ii) within 30 working days after the day on which the court receives the certification
3017 
described in Subsection (18)(a), if the court determines that more than 15 working
3018 
days are necessary for good cause related to the defendant's competency.
3019 
(19) The court may order a hearing at any time on the court's own motion or upon
3020 
recommendations of the clinical director of the Utah State Hospital or other facility or
- 89 - 1st Sub. (Buff) H.B. 334	03-07 11:11
3021 
the department.
3022 
(20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
3023 
attorney and all counsel of record.
3024 
Section 34.  Section 77-19-203 is amended to read:
3025 
77-19-203 . Petition for inquiry as to competency to be executed -- Filing --
3026 
Contents -- Successive petitions.
3027 
(1) If an inmate who has been sentenced to death is or becomes incompetent to be executed,
3028 
a petition under Subsection (2) may be filed in the district court of the county where the
3029 
inmate is confined.
3030 
(2) The petition shall:
3031 
(a) contain a certificate stating that it is filed in good faith and on reasonable grounds to
3032 
believe the inmate is incompetent to be executed; and
3033 
(b) contain a specific recital of the facts, observations, and conversations with the inmate
3034 
that form the basis for the petition.
3035 
(3) The petition may be based upon knowledge or information and belief and may be filed
3036 
by the inmate alleged to be incompetent, legal counsel for the inmate, or by an attorney
3037 
representing the state.
3038 
(4) Before ruling on a petition filed by an inmate or his counsel alleging that the inmate is
3039 
incompetent to be executed, the court shall give the state and the Department of
3040 
Corrections an opportunity to respond to the allegations of incompetency.
3041 
(5) If a petition is filed after an inmate has previously been found competent under either
3042 
this chapter or under [Title 77, Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
3043 
Defendant's Competency to Proceed, no further hearing on competency may be granted
3044 
unless the successive petition:
3045 
(a) alleges with specificity a substantial change of circumstances subsequent to the
3046 
previous determination of competency; and
3047 
(b) is sufficient to raise a significant question about the inmate's competency to be
3048 
executed.
3049 
Section 35.  Section 77-29-3 is amended to read:
3050 
77-29-3 . Chapter inapplicable to incompetent persons.
3051 
      The provisions of this chapter shall not apply to any person while adjudged to be
3052 
incompetent to proceed under [Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
3053 
Defendant's Competency to Proceed.
3054 
Section 36.  Section 80-6-402 is amended to read:
- 90 - 03-07 11:11	1st Sub. (Buff) H.B. 334
3055 
80-6-402 . Procedure -- Standard.
3056 
(1) When a written motion is filed in accordance with Section 80-6-401 [ ]raising the issue
3057 
of a minor's competency to proceed, or when the juvenile [ ]court raises the issue of a
3058 
minor's competency to proceed, the juvenile court shall stay all proceedings under this
3059 
chapter .
3060 
(2)(a) If a motion for inquiry is opposed by either party, the juvenile [ ]court shall,
3061 
before granting or denying the motion, hold a limited hearing solely for the purpose
3062 
of determining the sufficiency of the motion.
3063 
(b) If the juvenile [ ]court finds that the allegations of incompetency raise a bona fide
3064 
doubt as to the minor's competency to proceed, the juvenile court  shall:
3065 
(i) enter an order for an evaluation of the minor's competency to proceed; and
3066 
(ii) set a date for a hearing on the issue of the minor's competency.
3067 
(3)(a) After the granting of a motion, and before a full competency hearing, the juvenile [ ]
3068 
court may order the department to evaluate the minor and to report to the juvenile [ ]
3069 
court concerning the minor's mental condition.
3070 
(b) In accordance with state licensing laws, the court may only order the department to
3071 
provide an initial evaluation and progress toward competency evaluation for a minor
3072 
who is located within the state.
3073 
(4) The minor shall be evaluated by a forensic evaluator who:
3074 
(a) has experience in juvenile forensic evaluations and juvenile brain development;
3075 
(b) if it becomes apparent that the minor is not competent due to an intellectual disability
3076 
or related condition, has experience in intellectual disability or related conditions; and
3077 
(c) is not involved in the current treatment of the minor.
3078 
(5) The petitioner or other party, as directed by the juvenile court, shall provide all
3079 
information and materials relevant to a determination of the minor's competency to the
3080 
department within seven days of the juvenile court's order, including:
3081 
(a) the motion;
3082 
(b) the arrest or incident reports pertaining to the charged offense;
3083 
(c) the minor's known delinquency history information;
3084 
(d) the minor's probation record relevant to competency;
3085 
(e) known prior mental health evaluations and treatments; and
3086 
(f) consistent with 20 U.S.C. Sec. 1232g (b)(1)(E)(ii)(I), records pertaining to the
3087 
minor's education.
3088 
(6)(a) The minor's parent or guardian, the prosecuting attorney, the defense attorney, and
- 91 - 1st Sub. (Buff) H.B. 334	03-07 11:11
3089 
the attorney guardian ad litem, shall cooperate, by executing releases of information
3090 
when necessary, in providing the relevant information and materials to the forensic
3091 
evaluator, including:
3092 
(i) medical records;
3093 
(ii) prior mental evaluations; or
3094 
(iii) records of diagnosis or treatment of substance abuse disorders.
3095 
(b) The minor shall cooperate, by executing a release of information when necessary, in
3096 
providing the relevant information and materials to the forensic evaluator regarding
3097 
records of diagnosis or treatment of a substance abuse disorder.
3098 
(7)(a) In conducting the evaluation and in the report determining if a minor is competent
3099 
to proceed, the forensic evaluator shall inform the juvenile court of the forensic
3100 
evaluator's opinion whether:
3101 
(i) the minor has a present ability to consult with counsel with a reasonable degree of
3102 
rational understanding; and
3103 
(ii) the minor has a rational as well as factual understanding of the proceedings.
3104 
(b) In evaluating the minor, the forensic evaluator shall consider the minor's present
3105 
ability to:
3106 
(i) understand the charges or allegations against the minor;
3107 
(ii) communicate facts, events, and states of mind;
3108 
(iii) understand the range of possible penalties associated with the allegations against
3109 
the minor;
3110 
(iv) engage in reasoned choice of legal strategies and options;
3111 
(v) understand the adversarial nature of the proceedings against the minor;
3112 
(vi) manifest behavior sufficient to allow the juvenile court to proceed;
3113 
(vii) testify relevantly; and
3114 
(viii) any other factor determined to be relevant to the forensic evaluator.
3115 
(8)(a) The forensic evaluator shall provide an initial report to the juvenile court, the
3116 
prosecuting and defense attorneys, and the attorney guardian ad litem, if applicable,
3117 
within 30 days of the receipt of the juvenile court's order.
3118 
(b) If the forensic evaluator informs the juvenile court that additional time is needed, the
3119 
juvenile court may grant, taking into consideration the custody status of the minor, up
3120 
to an additional 15 days to provide the report to the juvenile court and counsel.
3121 
(c) The forensic evaluator must provide the report within 45 days from the receipt of the
3122 
juvenile court's order unless, for good cause shown, the juvenile court authorizes an
- 92 - 03-07 11:11	1st Sub. (Buff) H.B. 334
3123 
additional period of time to complete the evaluation and provide the report.
3124 
(d) The report shall inform the juvenile court of the forensic evaluator's opinion
3125 
concerning the minor's competency.
3126 
(9) If the forensic evaluator's opinion is that the minor is not competent to proceed, the
3127 
report shall indicate:
3128 
(a) the nature of the minor's:
3129 
(i) mental illness;
3130 
(ii) intellectual disability or related condition; or
3131 
(iii) developmental immaturity;
3132 
(b) the relationship of the minor's mental illness, intellectual disability, related condition,
3133 
or developmental immaturity to the minor's incompetence;
3134 
(c) whether there is a substantial likelihood that the minor may attain competency in the
3135 
foreseeable future;
3136 
(d) the amount of time estimated for the minor to achieve competency if the minor
3137 
undergoes competency attainment treatment, including medication;
3138 
(e) the sources of information used by the forensic evaluator; and
3139 
(f) the basis for clinical findings and opinions.
3140 
(10) Regardless of whether a minor consents to a competency evaluation, any statement
3141 
made by the minor in the course of the competency evaluation, any testimony by the
3142 
forensic evaluator based upon any statement made by the minor in the competency
3143 
evaluation, and any other fruits of the statement made by the minor in the competency
3144 
evaluation:
3145 
(a) may not be admitted in evidence against the minor in a proceeding under this
3146 
chapter, except the statement may be admitted on an issue respecting the mental
3147 
condition on which the minor has introduced evidence; and
3148 
(b) may be admitted where relevant to a determination of the minor's competency.
3149 
(11) Before evaluating the minor for a competency evaluation, a forensic evaluator shall
3150 
specifically advise the minor, and the minor's parent or guardian if reasonably available,
3151 
of the limits of confidentiality as provided under Subsection (10).
3152 
(12) When the report is received, the juvenile court shall set a date for a competency
3153 
hearing that shall be held in not less than five and not more than 15 days, unless the
3154 
juvenile court enlarges the time for good cause.
3155 
(13)(a) A minor shall be presumed competent unless the juvenile court, by a
3156 
preponderance of the evidence, finds the minor not competent to proceed.
- 93 - 1st Sub. (Buff) H.B. 334	03-07 11:11
3157 
(b) The burden of proof is upon the proponent of incompetency to proceed.
3158 
(14)(a) Following the hearing, the juvenile court shall determine by a preponderance of
3159 
evidence whether the minor is:
3160 
(i) competent to proceed;
3161 
(ii) not competent to proceed with a substantial probability that the minor may attain
3162 
competency in the foreseeable future; or
3163 
(iii) not competent to proceed without a substantial probability that the minor may
3164 
attain competency in the foreseeable future.
3165 
(b) If the juvenile court enters a finding described in Subsection (14)(a)(i), the juvenile
3166 
court shall proceed with the proceedings in the minor's case.
3167 
(c) If the juvenile court enters a finding described in Subsection (14)(a)(ii), the juvenile
3168 
court shall proceed in accordance with Section 80-6-403.
3169 
(d)(i) If the juvenile court enters a finding described in Subsection (14)(a)(iii), the
3170 
juvenile court shall terminate the competency proceeding, dismiss the charges
3171 
against the minor without prejudice, and release the minor from any custody order
3172 
related to the pending proceeding, unless the prosecutor informs the court that
3173 
commitment proceedings will be initiated in accordance with:
3174 
(A) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
3175 
People with an Intellectual Disability;
3176 
(B) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
3177 
Hospital and Other Mental Health Facilities; or
3178 
(C) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
3179 
Under Age 18.
3180 
(ii) The commitment proceedings described in Subsection (14)(d)(i) shall be initiated
3181 
within seven days after the day on which the juvenile court enters the order under
3182 
Subsection (14)(a), unless the court enlarges the time for good cause shown.
3183 
(iii) The juvenile court may order the minor to remain in custody until the
3184 
commitment proceedings have been concluded.
3185 
(15) If the juvenile court finds the minor not competent to proceed, the juvenile court's
3186 
order shall contain findings addressing each of the factors in Subsection (7)(b).
3187 
Section 37.  Section 80-6-403 is amended to read:
3188 
80-6-403 . Disposition on finding of not competent to proceed -- Subsequent
3189 
hearings -- Notice to prosecuting attorneys.
3190 
(1) If the juvenile court determines that the minor is not competent to proceed, and there is
- 94 - 03-07 11:11	1st Sub. (Buff) H.B. 334
3191 
a substantial likelihood that the minor may attain competency in the foreseeable future,
3192 
the juvenile court shall notify the department of the finding and allow the department 30
3193 
days to develop an attainment plan for the minor.
3194 
(2) The attainment plan shall include:
3195 
(a) any services or treatment the minor has been or is currently receiving that are
3196 
necessary to attain competency;
3197 
(b) any additional services or treatment the minor may require to attain competency;
3198 
(c) an assessment of the parent, custodian, or guardian's ability to access or provide any
3199 
recommended treatment or services;
3200 
(d) any special conditions or supervision that may be necessary for the safety of the
3201 
minor or others during the attainment period; and
3202 
(e) the likelihood that the minor will attain competency and the amount of time likely
3203 
required for the minor to attain competency.
3204 
(3) The department shall provide the attainment plan to the juvenile court, the prosecuting
3205 
attorney, the defense attorney, and the attorney guardian ad litem at least three days
3206 
before the competency disposition hearing.
3207 
(4)(a) During the attainment period, the minor shall remain in the least restrictive
3208 
appropriate setting.
3209 
(b) A finding of not competent to proceed does not grant authority for a juvenile court to
3210 
place a minor in the custody of a division of the department, or create eligibility for
3211 
services from the Division of Services for People With Disabilities.
3212 
(c) If the juvenile court orders the minor to be held in detention during the attainment
3213 
period, the juvenile court shall make the following findings on the record:
3214 
(i) the placement is the least restrictive appropriate setting;
3215 
(ii) the placement is in the best interest of the minor;
3216 
(iii) the minor will have access to the services and treatment required by the
3217 
attainment plan in the placement; and
3218 
(iv) the placement is necessary for the safety of the minor or others.
3219 
(d) A juvenile court shall terminate an order of detention related to the pending
3220 
proceeding for a minor who is not competent to proceed in that matter if:
3221 
(i) the most severe allegation against the minor if committed by an adult is a class B
3222 
misdemeanor;
3223 
(ii) more than 60 days have passed after the day on which the juvenile court
3224 
adjudicated the minor not competent to proceed; and
- 95 - 1st Sub. (Buff) H.B. 334	03-07 11:11
3225 
(iii) the minor has not attained competency.
3226 
(5)(a) At any time that the minor becomes competent to proceed during the attainment
3227 
period, the department shall notify the juvenile court, the prosecuting attorney, the
3228 
defense attorney, and the attorney guardian ad litem.
3229 
(b) The juvenile court shall hold a hearing with 15 business days of notice from the
3230 
department described in Subsection (5)(a).
3231 
(6)(a) If at any time during the attainment period the juvenile court finds that there is not
3232 
a substantial probability that the minor will attain competency in the foreseeable
3233 
future, the juvenile court shall terminate the competency proceeding, dismiss the
3234 
petition or information without prejudice, and release the minor from any custody
3235 
order related to the pending proceeding, unless the prosecuting attorney or any other
3236 
individual informs the juvenile court that commitment proceedings will be initiated in
3237 
accordance with:
3238 
(i) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
3239 
People with an Intellectual Disability;
3240 
(ii) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
3241 
Hospital and Other Mental Health Facilities; or
3242 
(iii) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
3243 
Under Age 18.
3244 
(b) The prosecuting attorney shall initiate the proceedings described in Subsection (6)(a)
3245 
within seven days after the juvenile court's order, unless the juvenile court enlarges
3246 
the time for good cause shown.
3247 
(7) During the attainment period, the juvenile court may order a hearing or rehearing at
3248 
anytime on the juvenile court's own motion or upon recommendation of any interested
3249 
party or the department.
3250 
(8)(a) Within three months of the juvenile court's approval of the attainment plan, the
3251 
department shall provide a report on the minor's progress towards competence.
3252 
(b) The report described in Subsection (8)(a) shall address the minor's:
3253 
(i) compliance with the attainment plan;
3254 
(ii) progress towards competency based on the issues identified in the original
3255 
competency evaluation; and
3256 
(iii) current mental illness, intellectual disability or related condition, or
3257 
developmental immaturity, and need for treatment, if any, and whether there is
3258 
substantial likelihood of the minor attaining competency within six months.
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3259 
(9)(a) Within 30 days of receipt of the report, the juvenile court shall hold a hearing to
3260 
determine the minor's current status.
3261 
(b) At the hearing, the burden of proving the minor is competent is on the proponent of
3262 
competency.
3263 
(c) The juvenile court shall determine by a preponderance of the evidence whether the
3264 
minor is competent to proceed.
3265 
(10) If the minor has not attained competency after the initial three month attainment period
3266 
but is showing reasonable progress towards attainment of competency, the juvenile court
3267 
may extend the attainment period up to an additional three months.
3268 
(11) The department shall provide an updated juvenile competency evaluation at the
3269 
conclusion of the [six month] extended attainment period under Subsection (10) to advise
3270 
the juvenile court on the minor's current competency status.
3271 
(12) If the minor does not attain competency within six months after the juvenile court
3272 
initially finds the minor not competent to proceed, the court shall terminate the
3273 
competency proceedings and dismiss the petition or information filed without prejudice,
3274 
unless good cause is shown that there is a substantial likelihood the minor will attain
3275 
competency within one year from the initial finding of not competent to proceed.
3276 
(13) In the event a minor has an unauthorized leave lasting more than 24 hours, the
3277 
attainment period shall toll until the minor returns.
3278 
(14)(a) Regardless of whether a minor consents to attainment, any statement made by
3279 
the minor in the course of attainment, any testimony by the forensic evaluator based
3280 
upon any statement made by the minor in the course of attainment, and any other
3281 
fruits of a statement made by the minor in the course of attainment:
3282 
(i) may not be admitted in evidence against the minor in a proceeding under this
3283 
chapter, except the statement may be admitted on an issue respecting the mental
3284 
condition on which the minor has introduced evidence; and
3285 
(ii) may be admitted where relevant to a determination of the minor's competency.
3286 
(b) Before evaluating the minor during the attainment period, a forensic evaluator shall
3287 
specifically advise the minor, and the minor's parent or guardian if reasonably
3288 
available, of the limits of confidentiality provided in Subsection (14)(a).
3289 
Section 38.  Effective Date.
3290 
This bill takes effect on May 7, 2025.
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