UT
Utah House Bill HB0334

Utah 2025 Regular Session

Utah House Bill HB0334 Compare Versions

OldNewDifferences
1-Enrolled Copy H.B. 334
1+03-07 11:11 1st Sub. (Buff) H.B. 334
2+Keven J. Stratton proposes the following substitute bill:
23 1
3-Guardianships and Supported Decision-Making Agreements Amendments
4+Capacity and Disability Amendments
45 2025 GENERAL SESSION
56 STATE OF UTAH
67 Chief Sponsor: Nelson T. Abbott
78 Senate Sponsor: Keven J. Stratton
89 2
910
1011 3
1112 LONG TITLE
1213 4
1314 General Description:
1415 5
1516 This bill addresses guardianships and supported decision-making agreements.
1617 6
1718 Highlighted Provisions:
1819 7
1920 This bill:
2021 8
2122 ▸ defines terms;
2223 9
24+▸ amends the definitions of "intellectual disability" and "intermediate care facility for
25+10
26+people with an intellectual disability" as used in the Utah Code;
27+11
28+▸ amends provisions relating to the rights and privileges to which an individual is entitled
29+12
30+when under commitment to the custody or to the treatment services of a local mental
31+13
32+health authority;
33+14
34+▸ provides that if a right of a patient of a local mental health authority is limited or denied,
35+15
36+including for the welfare of the patient or caretakers, the nature, extent, and reason for
37+16
38+that limitation or denial shall be entered in the patient's treatment record;
39+17
40+▸ requires a designated examiner to conduct an examination of a proposed patient by
41+18
42+telehealth except in certain circumstances;
43+19
44+▸ requires a court to hold a hearing on an application for involuntary commitment remotely
45+20
46+unless the court finds good cause not to hold the hearing remotely;
47+21
48+▸ amends standards and processes related to the involuntary civil commitment of an
49+22
50+individual with an intellectual disability or related condition;
51+23
52+▸ provides that a court may only order the Department of Health and Human Services
53+24
54+(department) to provide an initial evaluation and progress toward competency evaluation
55+25
56+for a defendant or minor if the defendant or minor is located within the state;
57+26
58+▸ requires a court to dismiss a petition for involuntary civil commitment if both designated
59+27
60+examiners determine that the proposed patient does not meet the criteria for involuntary
61+28
62+commitment;
63+1st Sub. H.B. 334 1st Sub. (Buff) H.B. 334 03-07 11:11
64+29
2365 ▸ repeals a provision that provides for the future repeal of statutory language concerning
24-10
66+30
2567 when counsel is not required for an allegedly incapacitated person;
26-11
68+31
2769 ▸ amends provisions concerning the rights of certain individuals who are under a
28-12
70+32
2971 court-ordered guardianship;
30-13
72+33
3173 ▸ amends provisions concerning the procedure for determining incapacity and appointing a
32-14
74+34
3375 guardian for an incapacitated person;
34-15
76+35
3577 ▸ prescribes the principles by which provisions related to supported decision-making
36-16
78+36
3779 agreements should be interpreted;
38-17
80+37
3981 ▸ describes the requirements for a supported decision-making agreement;
40-18
82+38
4183 ▸ authorizes the use of a supported decision-making agreement by certain individuals,
42-19
84+39
4385 subject to the permission of the individual's guardian, conservator, or other qualified
44-20
86+40
4587 person, as applicable;
46-21
88+41
4789 ▸ describes the duties of an individual who is a supporter under a supported
48-22
90+42
4991 decision-making agreement;
50-23
92+43
5193 ▸ provides that a supported decision-making agreement may be revoked or terminated, with
52-24
94+44
5395 certain conditions;
54-25
96+45
5597 ▸ describes how a supported decision-making agreement interacts with and affects other
56-26
98+46
5799 laws and principles;
58-27
59-▸ provides protections for a person who relies, in good faith, on the provisions of a H.B. 334 Enrolled Copy
60-28
61-supported decision-making agreement; and
62-29
100+47
101+▸ provides protections for a person who relies, in good faith, on the provisions of a
102+48
103+supported decision-making agreement;
104+49
105+▸ provides that when there is a conflict in the opinion of forensic evaluators, if a party seeks
106+50
107+an additional competency evaluation then the party is responsible for selecting the
108+51
109+evaluator and paying the cost of the evaluator;
110+52
111+▸ amends provisions regarding the release of a defendant determined to be incompetent to
112+53
113+proceed from a secure setting;
114+54
115+▸ addresses when the department is required to provide an updated juvenile competency
116+55
117+evaluation after an extended attainment period; and
118+56
63119 ▸ makes technical and conforming changes.
64-30
120+57
65121 Money Appropriated in this Bill:
66-31
122+58
67123 None
68-32
124+59
69125 Other Special Clauses:
70-33
126+60
71127 None
72-34
128+61
73129 Utah Code Sections Affected:
74-35
130+62
75131 AMENDS:
76-36
132+- 2 - 03-07 11:11 1st Sub. (Buff) H.B. 334
133+63
77134 7-5-1, as last amended by Laws of Utah 2013, Chapter 364
78-37
135+64
136+26B-2-121, as renumbered and amended by Laws of Utah 2023, Chapter 305
137+65
138+26B-2-122, as last amended by Laws of Utah 2024, Chapter 240
139+66
140+26B-5-301, as renumbered and amended by Laws of Utah 2023, Chapter 308
141+67
142+26B-5-310, as renumbered and amended by Laws of Utah 2023, Chapter 308
143+68
144+26B-5-322, as last amended by Laws of Utah 2023, Chapter 184 and renumbered and
145+69
146+amended by Laws of Utah 2023, Chapter 308
147+70
148+26B-5-332, as last amended by Laws of Utah 2024, Chapters 287, 299 and 314
149+71
150+26B-5-362, as renumbered and amended by Laws of Utah 2023, Chapter 308
151+72
152+26B-5-371, as last amended by Laws of Utah 2023, Chapter 184 and renumbered and
153+73
154+amended by Laws of Utah 2023, Chapter 308
155+74
156+26B-6-401, as last amended by Laws of Utah 2024, Chapter 240
157+75
158+26B-6-606, as renumbered and amended by Laws of Utah 2023, Chapter 308
159+76
160+26B-6-607, as last amended by Laws of Utah 2024, Chapter 299
161+77
162+26B-6-608, as last amended by Laws of Utah 2024, Chapter 299
163+78
164+26B-6-613, as renumbered and amended by Laws of Utah 2023, Chapter 308
165+79
79166 63I-2-275, as last amended by Laws of Utah 2024, Third Special Session, Chapter 5
80-38
167+80
168+68-3-12.5, as last amended by Laws of Utah 2024, Chapter 438
169+81
81170 75-1-201, as last amended by Laws of Utah 2024, Chapter 364
82-39
171+82
83172 75-5-301.5, as last amended by Laws of Utah 2024, Chapter 113
84-40
173+83
85174 75-5-303, as last amended by Laws of Utah 2024, Chapter 113
86-41
175+84
87176 75-5-312, as last amended by Laws of Utah 2022, Chapter 358 and repealed and
88-42
177+85
89178 reenacted by Laws of Utah 2022, Chapter 441 and last amended by Coordination Clause, Laws
90-43
179+86
91180 of Utah 2022, Chapter 358
92-44
181+87
93182 75-5-417, as last amended by Laws of Utah 2022, Chapter 358
94-45
183+88
184+77-15-2, as last amended by Laws of Utah 2023, Chapter 171
185+89
186+77-15-5, as last amended by Laws of Utah 2023, Chapters 171, 417 and last amended by
187+90
188+Coordination Clause, Laws of Utah 2023, Chapter 417
189+91
190+77-15-6, as last amended by Laws of Utah 2024, Chapter 174
191+92
192+77-19-203, as enacted by Laws of Utah 2004, Chapter 137
193+93
194+77-29-3, as enacted by Laws of Utah 1980, Chapter 15
195+94
196+80-6-402, as last amended by Laws of Utah 2023, Chapter 330
197+95
198+80-6-403, as last amended by Laws of Utah 2023, Chapter 330
199+96
95200 ENACTS:
96-46
201+- 3 - 1st Sub. (Buff) H.B. 334 03-07 11:11
202+97
97203 75-5-701, Utah Code Annotated 1953
98-47
204+98
99205 75-5-702, Utah Code Annotated 1953
100-48
206+99
101207 75-5-703, Utah Code Annotated 1953
102-49
208+100
103209 75-5-704, Utah Code Annotated 1953
104-50
210+101
105211 75-5-705, Utah Code Annotated 1953
106-51
212+102
107213 75-5-706, Utah Code Annotated 1953
108-52
214+103
109215 75-5-707, Utah Code Annotated 1953
110-53
216+104
111217 75-5-708, Utah Code Annotated 1953
112-54
218+105
113219 75-5-709, Utah Code Annotated 1953
114-55
220+106
115221
116-56
222+107
117223 Be it enacted by the Legislature of the state of Utah:
118-57
224+108
119225 Section 1. Section 7-5-1 is amended to read:
120-58
226+109
121227 7-5-1 . Definitions -- Allowable trust companies -- Exceptions.
122-59
228+110
123229 (1) As used in this chapter:
124-60
230+111
125231 (a) "Business trust" means an entity engaged in a trade or business that is created by a
126-61
232+112
127233 declaration of trust that transfers property to trustees, to be held and managed by
128-- 2 - Enrolled Copy H.B. 334
129-62
234+113
130235 them for the benefit of persons holding certificates representing the beneficial interest
131-63
236+114
132237 in the trust estate and assets.
133-64
238+115
134239 (b) "Trust business" means, except as provided in Subsection (1)(c), a business in which
135-65
240+116
136241 one acts in any agency or fiduciary capacity, including that of personal
137-66
242+117
138243 representative, executor, administrator, conservator, guardian, assignee, receiver,
139-67
244+118
140245 depositary, or trustee under appointment as trustee for any purpose permitted by law,
141-68
246+119
142247 including the definition of "trust" set forth in [Subsection 75-1-201(55)] Section
143-69
248+120
144249 75-1-201.
145-70
250+121
146251 (c) "Trust business" does not include the following means of holding money, assets, or
147-71
252+122
148253 other property:
149-72
254+123
150255 (i) money held in a client trust account by an attorney authorized to practice law in
151-73
256+124
152257 this state;
153-74
258+125
154259 (ii) money held in connection with the purchase or sale of real estate by a person
155-75
260+126
156261 licensed as a principal broker in accordance with Title 61, Chapter 2f, Real Estate
157-76
262+127
158263 Licensing and Practices Act;
159-77
264+128
160265 (iii) money or other assets held in escrow by a person authorized by the department in
161-78
266+129
162267 accordance with Chapter 22, Regulation of Independent Escrow Agents, or by the
163-79
268+130
164269 Utah Insurance Department to act as an escrow agent in this state;
165-80
270+- 4 - 03-07 11:11 1st Sub. (Buff) H.B. 334
271+131
166272 (iv) money held by a homeowners' association or similar organization to pay
167-81
273+132
168274 maintenance and other related costs for commonly owned property;
169-82
275+133
170276 (v) money held in connection with the collection of debts or payments on loans by a
171-83
277+134
172278 person acting solely as the agent or representative or otherwise at the sole
173-84
279+135
174280 direction of the person to which the debt or payment is owed, including money
175-85
281+136
176282 held by an escrow agent for payment of taxes or insurance;
177-86
283+137
178284 (vi) money and other assets held in trust on an occasional or isolated basis by a
179-87
285+138
180286 person who does not represent that the person is engaged in the trust business in
181-88
287+139
182288 Utah;
183-89
289+140
184290 (vii) money or other assets found by a court to be held in an implied, resulting, or
185-90
291+141
186292 constructive trust;
187-91
293+142
188294 (viii) money or other assets held by a court appointed conservator, guardian, receiver,
189-92
295+143
190296 trustee, or other fiduciary if:
191-93
297+144
192298 (A) the conservator, receiver, guardian, trustee, or other fiduciary is responsible to
193-94
299+145
194300 the court in the same manner as a personal representative under Title 75,
195-95
301+146
196302 Chapter 3, Part 5, Supervised Administration, or as a receiver under Rule 66,
197-- 3 - H.B. 334 Enrolled Copy
198-96
303+147
199304 Utah Rules of Civil Procedure; and
200-97
305+148
201306 (B) the conservator, trustee, or other fiduciary is a certified public accountant or
202-98
307+149
203308 has qualified for and received a designation as a certified financial planner,
204-99
309+150
205310 chartered financial consultant, certified financial analyst, or similar designation
206-100
311+151
207312 suitable to the court, that evidences the conservator's, trustee's, or other
208-101
313+152
209314 fiduciary's professional competence to manage financial matters;
210-102
315+153
211316 (ix) money or other assets held by a credit services organization operating in
212-103
317+154
213318 compliance with Title 13, Chapter 21, Credit Services Organizations Act;
214-104
319+155
215320 (x) money, securities, or other assets held in a customer account in connection with
216-105
321+156
217322 the purchase or sale of securities by a regulated securities broker, dealer, or
218-106
323+157
219324 transfer agent; or
220-107
325+158
221326 (xi) money, assets, and other property held in a business trust for the benefit of
222-108
327+159
223328 holders of certificates of beneficial interest if the fiduciary activities of the
224-109
329+160
225330 business trust are merely incidental to conducting business in the business trust
226-110
331+161
227332 form.
228-111
333+162
229334 (d) "Trust company" means an institution authorized to engage in the trust business
230-112
335+163
231336 under this chapter. Only the following may be a trust company:
232-113
337+164
233338 (i) a Utah depository institution or its wholly owned subsidiary;
234-114
339+- 5 - 1st Sub. (Buff) H.B. 334 03-07 11:11
340+165
235341 (ii) an out-of-state depository institution authorized to engage in business as a
236-115
342+166
237343 depository institution in Utah or its wholly owned subsidiary;
238-116
344+167
239345 (iii) a corporation, including a credit union service organization, owned entirely by
240-117
346+168
241347 one or more federally insured depository institutions as defined in Subsection
242-118
348+169
243349 7-1-103(8);
244-119
350+170
245351 (iv) a direct or indirect subsidiary of a depository institution holding company that
246-120
352+171
247353 also has a direct or indirect subsidiary authorized to engage in business as a
248-121
354+172
249355 depository institution in Utah; and
250-122
356+173
251357 (v) any other corporation continuously and lawfully engaged in the trust business in
252-123
358+174
253359 this state since before July 1, 1981.
254-124
360+175
255361 (2) Only a trust company may engage in the trust business in this state.
256-125
362+176
257363 (3) The requirements of this chapter do not apply to:
258-126
364+177
259365 (a) an institution authorized to engage in a trust business in another state that is engaged
260-127
366+178
261367 in trust activities in this state solely to fulfill its duties as a trustee of a trust created
262-128
368+179
263369 and administered in another state;
264-129
370+180
265371 (b) a national bank, federal savings bank, federal savings and loan association, or federal
266-- 4 - Enrolled Copy H.B. 334
267-130
372+181
268373 credit union authorized to engage in business as a depository institution in Utah, or
269-131
374+182
270375 any wholly owned subsidiary of any of these, to the extent the institution is
271-132
376+183
272377 authorized by its primary federal regulator to engage in the trust business in this state;
273-133
378+184
274379 or
275-134
380+185
276381 (c) a state agency that is otherwise authorized by statute to act as a conservator, receiver,
277-135
382+186
278383 guardian, trustee, or in any other fiduciary capacity.
279-136
280-Section 2. Section 63I-2-275 is amended to read:
281-137
384+187
385+Section 2. Section 26B-2-121 is amended to read:
386+188
387+26B-2-121 . Access to abuse and neglect information.
388+189
389+(1) As used in this section:
390+190
391+(a) "Direct service worker" means the same as that term is defined in Section 26B-6-401.
392+191
393+(b) "Personal care attendant" means the same as that term is defined in Section [
394+192
395+26B-6-401] 26B-6-101.
396+193
397+(2) With respect to a licensee, a direct service worker, or a personal care attendant, the
398+194
399+department may access only the Licensing Information System of the Division of Child
400+195
401+and Family Services created by Section 80-2-1002 and juvenile court records under
402+196
403+Subsection 80-3-404(4), for the purpose of:
404+197
405+(a)(i) determining whether a person associated with a licensee, with direct access to
406+198
407+children:
408+- 6 - 03-07 11:11 1st Sub. (Buff) H.B. 334
409+199
410+(A) is listed in the Licensing Information System; or
411+200
412+(B) has a substantiated finding by a juvenile court of a severe type of child abuse
413+201
414+or neglect under Subsections 80-3-404(1) and (2); and
415+202
416+(ii) informing a licensee that a person associated with the licensee:
417+203
418+(A) is listed in the Licensing Information System; or
419+204
420+(B) has a substantiated finding by a juvenile court of a severe type of child abuse
421+205
422+or neglect under Subsections 80-3-404(1) and (2);
423+206
424+(b)(i) determining whether a direct service worker:
425+207
426+(A) is listed in the Licensing Information System; or
427+208
428+(B) has a substantiated finding by a juvenile court of a severe type of child abuse
429+209
430+or neglect under Subsections 80-3-404(1) and (2); and
431+210
432+(ii) informing a direct service worker or the direct service worker's employer that the
433+211
434+direct service worker:
435+212
436+(A) is listed in the Licensing Information System; or
437+213
438+(B) has a substantiated finding by a juvenile court of a severe type of child abuse
439+214
440+or neglect under Subsections 80-3-404(1) and (2); or
441+215
442+(c)(i) determining whether a personal care attendant:
443+216
444+(A) is listed in the Licensing Information System; or
445+217
446+(B) has a substantiated finding by a juvenile court of a severe type of child abuse
447+218
448+or neglect under Subsections 80-3-404(1) and (2); and
449+219
450+(ii) informing a person described in Subsections 26B-6-101(9)(a)(i) through (iv) that
451+220
452+a personal care attendant:
453+221
454+(A) is listed in the Licensing Information System; or
455+222
456+(B) has a substantiated finding by a juvenile court of a severe type of child abuse
457+223
458+or neglect under Subsections 80-3-404(1) and (2).
459+224
460+(3) Notwithstanding Subsection (2), the department may access the Division of Child and
461+225
462+Family Services' Management Information System under Section 80-2-1001:
463+226
464+(a) for the purpose of licensing and monitoring foster parents;
465+227
466+(b) for the purposes described in Subsection 80-2-1001(5)(b)(iii); and
467+228
468+(c) for the purpose described in Section 26B-1-211.
469+229
470+(4) The department shall receive and process personal identifying information under
471+230
472+Subsection 26B-2-120(1) for the purposes described in Subsection (2).
473+231
474+(5) The department shall adopt rules under Title 63G, Chapter 3, Utah Administrative
475+232
476+Rulemaking Act, consistent with this part, defining the circumstances under which a
477+- 7 - 1st Sub. (Buff) H.B. 334 03-07 11:11
478+233
479+person may have direct access or provide services to children when:
480+234
481+(a) the person is listed in the Licensing Information System of the Division of Child and
482+235
483+Family Services created by Section 80-2-1002; or
484+236
485+(b) juvenile court records show that a court made a substantiated finding under Section
486+237
487+80-3-404, that the person committed a severe type of child abuse or neglect.
488+238
489+Section 3. Section 26B-2-122 is amended to read:
490+239
491+26B-2-122 . Access to vulnerable adult abuse and neglect information.
492+240
493+(1) For purposes of this section:
494+241
495+(a) "Direct service worker" means the same as that term is defined in Section 26B-6-401.
496+242
497+(b) "Personal care attendant" means the same as that term is defined in Section [
498+243
499+26B-6-401] 26B-6-101.
500+244
501+(2) With respect to a licensee, a direct service worker, or a personal care attendant, the
502+245
503+department may access the database created by Section 26B-6-210 for the purpose of:
504+246
505+(a)(i) determining whether a person associated with a licensee, with direct access to
506+247
507+vulnerable adults, has a supported or substantiated finding of:
508+248
509+(A) abuse;
510+249
511+(B) neglect; or
512+250
513+(C) exploitation; and
514+251
515+(ii) informing a licensee that a person associated with the licensee has a supported or
516+252
517+substantiated finding of:
518+253
519+(A) abuse;
520+254
521+(B) neglect; or
522+255
523+(C) exploitation;
524+256
525+(b)(i) determining whether a direct service worker has a supported or substantiated
526+257
527+finding of:
528+258
529+(A) abuse;
530+259
531+(B) neglect; or
532+260
533+(C) exploitation; and
534+261
535+(ii) informing a direct service worker or the direct service worker's employer that the
536+262
537+direct service worker has a supported or substantiated finding of:
538+263
539+(A) abuse;
540+264
541+(B) neglect; or
542+265
543+(C) exploitation; or
544+266
545+(c)(i) determining whether a personal care attendant has a supported or substantiated
546+- 8 - 03-07 11:11 1st Sub. (Buff) H.B. 334
547+267
548+finding of:
549+268
550+(A) abuse;
551+269
552+(B) neglect; or
553+270
554+(C) exploitation; and
555+271
556+(ii) informing a person described in Subsections 26B-6-401(9)(a)(i) through (iv) that
557+272
558+a personal care attendant has a supported or substantiated finding of:
559+273
560+(A) abuse;
561+274
562+(B) neglect; or
563+275
564+(C) exploitation.
565+276
566+(3) The department shall receive and process personal identifying information under
567+277
568+Subsection 26B-2-120(2) for the purposes described in Subsection (2).
569+278
570+(4) The department shall adopt rules under Title 63G, Chapter 3, Utah Administrative
571+279
572+Rulemaking Act, consistent with this part and Chapter 6, Part 2, Abuse, Neglect, or
573+280
574+Exploitation of a Vulnerable Adult, defining the circumstances under which a person
575+281
576+may have direct access or provide services to vulnerable adults when the person is listed
577+282
578+in the statewide database of the Division of Aging and Adult Services created by Section
579+283
580+26B-6-210 as having a supported or substantiated finding of abuse, neglect, or
581+284
582+exploitation.
583+285
584+Section 4. Section 26B-5-301 is amended to read:
585+286
586+26B-5-301 . Definitions.
587+287
588+ As used in this part, Part 4, Commitment of Persons Under Age 18, and Part 5, Essential
589+288
590+Treatment and Intervention:
591+289
592+(1) "Adult" means an individual 18 years old or older.
593+290
594+(2) "Approved treatment facility or program" means a mental health or substance use
595+291
596+treatment provider that meets the goals and measurements described in Subsection
597+292
598+26B-5-102(2)(j).
599+293
600+(3) "Assisted outpatient treatment" means involuntary outpatient mental health treatment
601+294
602+ordered under Section 26B-5-351.
603+295
604+(4) "Attending physician" means a physician licensed to practice medicine in this state who
605+296
606+has primary responsibility for the care and treatment of the declarant.
607+297
608+(5) "Attorney-in-fact" means an adult properly appointed under this part to make mental
609+298
610+health treatment decisions for a declarant under a declaration for mental health treatment.
611+299
612+(6) "Commitment to the custody of a local mental health authority" means that an adult is
613+300
614+committed to the custody of the local mental health authority that governs the mental
615+- 9 - 1st Sub. (Buff) H.B. 334 03-07 11:11
616+301
617+health catchment area where the adult resides or is found.
618+302
619+(7) "Community mental health center" means an entity that provides treatment and services
620+303
621+to a resident of a designated geographical area, that operates by or under contract with a
622+304
623+local mental health authority, and that complies with state standards for community
624+305
625+mental health centers.
626+306
627+(8) "Designated examiner" means:
628+307
629+(a) a licensed physician, preferably a psychiatrist, who is designated by the division as
630+308
631+specially qualified by training or experience in the diagnosis of mental or related
632+309
633+illness; or
634+310
635+(b) a licensed mental health professional designated by the division as specially qualified
636+311
637+by training and who has at least five years' continual experience in the treatment of
638+312
639+mental illness.
640+313
641+(9) "Designee" means a physician who has responsibility for medical functions including
642+314
643+admission and discharge, an employee of a local mental health authority, or an employee
644+315
645+of a person that has contracted with a local mental health authority to provide mental
646+316
647+health services under Section 17-43-304.
648+317
649+(10) "Essential treatment" and "essential treatment and intervention" mean court-ordered
650+318
651+treatment at a local substance abuse authority or an approved treatment facility or
652+319
653+program for the treatment of an adult's substance use disorder.
654+320
655+(11) "Harmful sexual conduct" means the following conduct upon an individual without the
656+321
657+individual's consent, including the nonconsensual circumstances described in
658+322
659+Subsections 76-5-406(2)(a) through (l):
660+323
661+(a) sexual intercourse;
662+324
663+(b) penetration, however slight, of the genital or anal opening of the individual;
664+325
665+(c) any sexual act involving the genitals or anus of the actor or the individual and the
666+326
667+mouth or anus of either individual, regardless of the gender of either participant; or
668+327
669+(d) any sexual act causing substantial emotional injury or bodily pain.
670+328
671+(12) "Informed waiver" means the patient was informed of a right and, after being informed
672+329
673+of that right and the patient's right to waive the right, expressly communicated his or her
674+330
675+intention to waive that right.
676+331
677+(13) "Incapable" means that, in the opinion of the court in a guardianship proceeding under
678+332
679+Title 75, Utah Uniform Probate Code, or in the opinion of two physicians, a person's
680+333
681+ability to receive and evaluate information effectively or communicate decisions is
682+334
683+impaired to such an extent that the person currently lacks the capacity to make mental
684+- 10 - 03-07 11:11 1st Sub. (Buff) H.B. 334
685+335
686+health treatment decisions.
687+336
688+(14) "Institution" means a hospital or a health facility licensed under Section 26B-2-206.
689+337
690+(15) "Lay person" means an individual identified and authorized by a patient to participate
691+338
692+in activities related to the patient's commitment, including court appearances, discharge
693+339
694+planning, and grievances, except that a patient may revoke a lay person's authorization at
695+340
696+any time.
697+341
698+(16) "Local substance abuse authority" means the same as that term is defined in Section
699+342
700+26B-5-101 and described in Section 17-43-201.
701+343
702+[(16)] (17) "Mental health facility" means the Utah State Hospital or other facility that
703+344
704+provides mental health services under contract with the division, a local mental health
705+345
706+authority, a person that contracts with a local mental health authority, or a person that
707+346
708+provides acute inpatient psychiatric services to a patient.
709+347
710+[(17)] (18) "Mental health officer" means an individual who is designated by a local mental
711+348
712+health authority as qualified by training and experience in the recognition and
713+349
714+identification of mental illness, to:
715+350
716+(a) apply for and provide certification for a temporary commitment; or
717+351
718+(b) assist in the arrangement of transportation to a designated mental health facility.
719+352
720+[(18)] (19) "Mental illness" means:
721+353
722+(a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
723+354
724+behavioral, or related functioning; or
725+355
726+(b) the same as that term is defined in:
727+356
728+(i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
729+357
730+published by the American Psychiatric Association; or
731+358
732+(ii) the current edition of the International Statistical Classification of Diseases and
733+359
734+Related Health Problems.
735+360
736+[(19)] (20) "Mental health treatment" means convulsive treatment, treatment with
737+361
738+psychoactive medication, or admission to and retention in a facility for a period not to
739+362
740+exceed 17 days.
741+363
742+[(20)] (21) "Patient" means an individual who is:
743+364
744+(a) under commitment to the custody or to the treatment services of a local mental health
745+365
746+authority; or
747+366
748+(b) undergoing essential treatment and intervention.
749+367
750+[(21)] (22) "Physician" means an individual who is:
751+368
752+(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
753+- 11 - 1st Sub. (Buff) H.B. 334 03-07 11:11
754+369
755+(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
756+370
757+Practice Act.
758+371
759+[(22)] (23) "Serious bodily injury" means bodily injury that involves a substantial risk of
760+372
761+death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
762+373
763+protracted loss or impairment of the function of a bodily member, organ, or mental
764+374
765+faculty.
766+375
767+[(23)] (24) "State hospital" means the Utah State Hospital established in Section 26B-5-302.
768+376
769+[(24)] (25) "Substantial danger" means that due to mental illness, an individual is at serious
770+377
771+risk of:
772+378
773+(a) suicide;
774+379
775+(b) serious bodily self-injury;
776+380
777+(c) serious bodily injury because the individual is incapable of providing the basic
778+381
779+necessities of life, including food, clothing, or shelter;
780+382
781+(d) causing or attempting to cause serious bodily injury to another individual;
782+383
783+(e) engaging in harmful sexual conduct; or
784+384
785+(f) if not treated, suffering severe and abnormal mental, emotional, or physical distress
786+385
787+that:
788+386
789+(i) is associated with significant impairment of judgment, reason, or behavior; and
790+387
791+(ii) causes a substantial deterioration of the individual's previous ability to function
792+388
793+independently.
794+389
795+[(25)] (26) "Treatment" means psychotherapy, medication, including the administration of
796+390
797+psychotropic medication, or other medical treatments that are generally accepted
798+391
799+medical or psychosocial interventions for the purpose of restoring the patient to an
800+392
801+optimal level of functioning in the least restrictive environment.
802+393
803+Section 5. Section 26B-5-310 is amended to read:
804+394
805+26B-5-310 . Restrictions and limitations -- Rights and privileges.
806+395
807+(1) Subject to the general rules of the division, subject to the requirement in Subsection (2)
808+396
809+that the reason, nature, and extent of any limitation or denial of a patient's right shall be
810+397
811+entered in the patient's treatment record, and except to the extent that the director or [his]
812+398
813+the director's designee determines that it is necessary for the welfare of the patient or the
814+399
815+patient's caretakers to impose restrictions, every patient is entitled to:
816+400
817+(a)(i) communicate, by sealed mail or otherwise, with persons, including official
818+401
819+agencies, inside or outside the [facility] responsible mental health authority, local
820+402
821+substance abuse authority, or approved treatment facility or program;
822+- 12 - 03-07 11:11 1st Sub. (Buff) H.B. 334
823+403
824+(ii) be provided with letter-writing materials, including postage; and
825+404
826+(iii) have staff of the responsible mental health authority, local substance abuse
827+405
828+authority, or approved treatment facility or program assist the patient if the patient
829+406
830+is unable to write, prepare, or mail correspondence;
831+407
832+(b) have frequent and consistent opportunities to receive visitors[; and] at reasonable
833+408
834+times that do not interfere with clinical activities;
835+409
836+(c) speak or visit with the patient's attorney or clergy member within a reasonable period
837+410
838+of time;
839+411
840+(d) exercise all civil rights, including the right to dispose of property, execute
841+412
842+instruments, make purchases, enter contractual relationships, and vote, unless the
843+413
844+patient has been adjudicated to be incompetent and has not been restored to legal
845+414
846+capacity[.] ;
847+415
848+(e) while in an inpatient or residential facility, have access to adequate water and food
849+416
850+and have the patient's nutritional needs met in a manner that is consistent with
851+417
852+recognized dietary practices;
853+418
854+(f) be treated fairly, with respect and recognition of the patient's dignity and
855+419
856+individuality;
857+420
858+(g) not be discriminated against on the basis of a characteristic identified in Subsection
859+421
860+57-21-5(1);
861+422
862+(h) within 72 business hours after the patient's request, see and receive the services of a
863+423
864+patient representative, including a peer specialist or patient advocate, who is not
865+424
866+involved in the direct clinical care of the patient;
867+425
868+(i) have the patient's behavioral health orders for scope of treatment, declaration for
869+426
870+mental health treatment, or other psychiatric advance directive reviewed and
871+427
872+considered as the preferred treatment option for involuntary administration of
873+428
874+medications by the responsible local mental health authority, local substance abuse
875+429
876+authority, or approved treatment facility or program, unless by clear and convincing
877+430
878+evidence the patient's directive does not qualify as effective participation in
879+431
880+behavioral health decision-making;
881+432
882+(j) with the patient's consent, have the patient's information or records disclosed to an
883+433
884+adult family member, the patient's lay person, or, in accordance with state and federal
885+434
886+law, to a protection and advocacy system designated pursuant to 42 U.S.C. Sec.
887+435
888+10801 et seq.;
889+436
890+(k)(i) access to a telephone to make and receive private calls, unless determined a
891+- 13 - 1st Sub. (Buff) H.B. 334 03-07 11:11
892+437
893+clinical or safety risk; and
894+438
895+(ii) staff assistance to be able to communicate with others, if the patient does not have
896+439
897+a contact list;
898+440
899+(l) wear the patient's own clothes, keep and use the patient's own possessions, and keep
900+441
901+and be allowed to spend a reasonable amount of the patient's own money, unless
902+442
903+deemed a clinical or safety risk; and
904+443
905+(m) be told:
906+444
907+(i) the reason for the patient's detainment and the limitation of the patient's
908+445
909+detainment, including a description of the patient's right to refuse medication
910+446
911+unless the patient requires emergency medications; and
912+447
913+(ii) that the patient's commitment does not mean all treatment during commitment is
914+448
915+mandatory.
916+449
917+(2)(a) When any right of a patient is limited or denied, the nature, extent, and reason for
918+450
919+that limitation or denial shall be entered in the patient's treatment record.
920+451
921+(b) Information pertaining to a denial of any right of a patient shall be made available,
922+452
923+upon request, to the patient, the patient's attorney, and the patient's lay person.
924+453
925+(c) Any continuing denial or limitation of any right of a patient shall be reviewed every
926+454
927+30 days and shall also be entered in [that] the patient's treatment record.
928+455
929+(d) Notice of [that] a continuing denial of any right of a patient in excess of 30 days shall
930+456
931+be sent to the division, the [appropriate] responsible local mental health authority, the
932+457
933+appropriate local substance abuse authority, or an approved treatment facility or
934+458
935+program[, whichever is most applicable to the patient].
936+459
937+[(3) Notwithstanding any limitations authorized under this section on the right of
938+460
939+communication, each patient is entitled to communicate by sealed mail with the
940+461
941+appropriate local mental health authority, the appropriate local substance abuse
942+462
943+authority, an approved treatment facility or program, the division, the patient's attorney,
944+463
945+and the court, if any, that ordered the patient's commitment or essential treatment. In no
946+464
947+case may the patient be denied a visit with the legal counsel or clergy of the patient's
948+465
949+choice.]
950+466
951+[(4)] (3) Local mental health authorities, local substance abuse authorities, and approved
952+467
953+treatment facilities or programs shall provide reasonable means and arrangements for
954+468
955+informing involuntary patients of their right to release as provided in this chapter, and
956+469
957+for assisting them in making and presenting requests for release.
958+470
959+[(5)] (4) [Mental] Local mental health facilities, local substance abuse authorities, and
960+- 14 - 03-07 11:11 1st Sub. (Buff) H.B. 334
961+471
962+approved treatment facilities or programs shall post a statement, created by the division,
963+472
964+describing a patient's rights under Utah law.
965+473
966+[(6)] (5) A local mental health authority, local substance abuse authority, or approved
967+474
968+treatment facility or program may not intentionally retaliate or discriminate against a
969+475
970+detained patient or employee for contacting or providing information to any official or to
971+476
972+an employee of any state protection and advocacy agency or for initiating, participating
973+477
974+in, or testifying in a grievance procedure or in an action for any remedy authorized
975+478
976+pursuant to this section.
977+479
978+(6) Notwithstanding Section 53B-17-303, an individual committed under this chapter has
979+480
980+the right to determine the final disposition of that individual's body after death.
981+481
982+Section 6. Section 26B-5-322 is amended to read:
983+482
984+26B-5-322 . Criminal's escape -- Penalty.
985+483
986+ Any person committed to the state hospital under the provisions of [Title 77, Chapter 15,
987+484
988+Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
989+485
990+Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition, who escapes
991+486
992+or leaves the state hospital without proper legal authority is guilty of a class A misdemeanor.
993+487
994+Section 7. Section 26B-5-332 is amended to read:
995+488
996+26B-5-332 . Involuntary commitment under court order -- Examination --
997+489
998+Hearing -- Power of court -- Findings required -- Costs.
999+490
1000+(1) A responsible individual who has credible knowledge of an adult's mental illness and
1001+491
1002+the condition or circumstances that have led to the adult's need to be involuntarily
1003+492
1004+committed may initiate an involuntary commitment court proceeding by filing, in the
1005+493
1006+court in the county where the proposed patient resides or is found, a written application
1007+494
1008+that includes:
1009+495
1010+(a) unless the court finds that the information is not reasonably available, the proposed
1011+496
1012+patient's:
1013+497
1014+(i) name;
1015+498
1016+(ii) date of birth; and
1017+499
1018+(iii) social security number;
1019+500
1020+(b)(i) a certificate of a licensed physician or a designated examiner stating that within
1021+501
1022+the seven-day period immediately preceding the certification, the physician or
1023+502
1024+designated examiner examined the proposed patient and is of the opinion that the
1025+503
1026+proposed patient has a mental illness and should be involuntarily committed; or
1027+504
1028+(ii) a written statement by the applicant that:
1029+- 15 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1030+505
1031+(A) the proposed patient has been requested to, but has refused to, submit to an
1032+506
1033+examination of mental condition by a licensed physician or designated
1034+507
1035+examiner;
1036+508
1037+(B) is sworn to under oath; and
1038+509
1039+(C) states the facts upon which the application is based; and
1040+510
1041+(c) a statement whether the proposed patient has previously been under an assisted
1042+511
1043+outpatient treatment order, if known by the applicant.
1044+512
1045+(2) Before issuing a judicial order, the court:
1046+513
1047+(a) shall require the applicant to consult with the appropriate local mental health
1048+514
1049+authority at or before the hearing; and
1050+515
1051+(b) may direct a mental health professional from the local mental health authority to
1052+516
1053+interview the applicant and the proposed patient to determine the existing facts and
1054+517
1055+report the existing facts to the court.
1056+518
1057+(3) The court may issue an order, directed to a mental health officer or peace officer, to
1058+519
1059+immediately place a proposed patient in the custody of a local mental health authority or
1060+520
1061+in a temporary emergency facility, as described in Section 26B-5-334, to be detained for
1062+521
1063+the purpose of examination if:
1064+522
1065+(a) the court finds from the application, any other statements under oath, or any reports
1066+523
1067+from a mental health professional that there is a reasonable basis to believe that the
1068+524
1069+proposed patient has a mental illness that poses a danger to self or others and requires
1070+525
1071+involuntary commitment pending examination and hearing; or
1072+526
1073+(b) the proposed patient refuses to submit to an interview with a mental health
1074+527
1075+professional as directed by the court or to go to a treatment facility voluntarily.
1076+528
1077+(4)(a) The court shall provide notice of commencement of proceedings for involuntary
1078+529
1079+commitment, setting forth the allegations of the application and any reported facts,
1080+530
1081+together with a copy of any official order of detention, to a proposed patient before,
1082+531
1083+or upon, placement of the proposed patient in the custody of a local mental health
1084+532
1085+authority or, with respect to any proposed patient presently in the custody of a local
1086+533
1087+mental health authority whose status is being changed from voluntary to involuntary,
1088+534
1089+upon the filing of an application for that purpose with the court.
1090+535
1091+(b) The place of detention shall maintain a copy of the order of detention.
1092+536
1093+(5)(a) The court shall provide notice of commencement of proceedings for involuntary
1094+537
1095+commitment as soon as practicable to the applicant, any legal guardian, any
1096+538
1097+immediate adult family members, legal counsel for the parties involved, the local
1098+- 16 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1099+539
1100+mental health authority or the local mental health authority's designee, and any other
1101+540
1102+persons whom the proposed patient or the court designates.
1103+541
1104+(b) Except as provided in Subsection (5)(c), the notice under Subsection (5)(a) shall
1105+542
1106+advise the persons that a hearing may be held within the time provided by law.
1107+543
1108+(c) If the proposed patient refuses to permit release of information necessary for
1109+544
1110+provisions of notice under this subsection, the court shall determine the extent of
1111+545
1112+notice.
1113+546
1114+(6) Proceedings for commitment of an individual under 18 years old to a local mental health
1115+547
1116+authority may be commenced in accordance with Part 4, Commitment of Persons Under
1117+548
1118+Age 18.
1119+549
1120+(7)(a) The court may, in the court's discretion, transfer the case to any other district court
1121+550
1122+within this state, if the transfer will not be adverse to the interest of the proposed
1123+551
1124+patient.
1125+552
1126+(b) If a case is transferred under Subsection (7)(a), the parties to the case may be
1127+553
1128+transferred and the local mental health authority may be substituted in accordance
1129+554
1130+with Utah Rules of Civil Procedure, Rule 25.
1131+555
1132+(8) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance of a
1133+556
1134+judicial order, or after commitment of a proposed patient to a local mental health
1135+557
1136+authority or the local mental health authority's designee under court order for detention
1137+558
1138+or examination, the court shall appoint two designated examiners:
1139+559
1140+(a) who did not sign the civil commitment application nor the civil commitment
1141+560
1142+certification under Subsection (1);
1143+561
1144+(b) one of whom is:
1145+562
1146+(i) a licensed physician; or
1147+563
1148+(ii) a psychiatric mental health nurse practitioner or a psychiatric mental health
1149+564
1150+clinical nurse specialist who:
1151+565
1152+(A) is nationally certified;
1153+566
1154+(B) is doctorally trained; and
1155+567
1156+(C) has at least two years of inpatient mental health experience, regardless of the
1157+568
1158+license the individual held at the time of that experience; and
1159+569
1160+(c) one of whom may be designated by the proposed patient or the proposed patient's
1161+570
1162+counsel, if that designated examiner is reasonably available.
1163+571
1164+(9) The court shall schedule a hearing to be held within 10 calendar days after the day on
1165+572
1166+which the designated examiners are appointed.
1167+- 17 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1168+573
1169+(10)(a) The designated examiners shall[:]
1170+574
1171+[(i)] conduct the examinations separately[;] .
1172+575
1173+[(ii)] (b) [conduct the examinations at the home of the proposed patient, at a hospital or
1174+576
1175+other medical facility, or at any other suitable place, including] The designated
1176+577
1177+examiners shall conduct the examinations:
1178+578
1179+(i) through telehealth[,] unless the designated examiner determines that:
1180+579
1181+(A) a telehealth examination would not be sufficient to properly assess the
1182+580
1183+proposed patient;
1184+581
1185+(B) a telehealth examination would have a harmful effect on the proposed patient's
1186+582
1187+health; or
1188+583
1189+(C) an in-person examination can be conducted as effectively, conveniently, and
1190+584
1191+timely as an examination through telehealth; and
1192+585
1193+(ii) if the designated examiner determines, pursuant to Subsection (10)(b)(i), that the
1194+586
1195+examination should be conducted in person, at the home of the proposed patient,
1196+587
1197+at a hospital or other medical facility, or at any other suitable place that is not
1198+588
1199+likely to have a harmful effect on the proposed patient's health[;] .
1200+589
1201+[(iii)] (c) The designated examiners shall inform the proposed patient, if not represented
1202+590
1203+by an attorney:
1204+591
1205+[(A)] (i) that the proposed patient does not have to say anything;
1206+592
1207+[(B)] (ii) of the nature and reasons for the examination;
1208+593
1209+[(C)] (iii) that the examination was ordered by the court;
1210+594
1211+[(D)] (iv) that any information volunteered could form part of the basis for the
1212+595
1213+proposed patient's involuntary commitment;
1214+596
1215+[(E)] (v) that findings resulting from the examination will be made available to the
1216+597
1217+court; and
1218+598
1219+[(F)] (vi) that the designated examiner may, under court order, obtain the proposed
1220+599
1221+patient's mental health records[; and] .
1222+600
1223+[(iv)] (d) [within] Within 24 hours of examining the proposed patient, a designated
1224+601
1225+examiner shall report to the court, orally or in writing, whether the proposed patient
1226+602
1227+is mentally ill, has agreed to voluntary commitment, as described in Section
1228+603
1229+26B-5-360, or has acceptable programs available to the proposed patient without
1230+604
1231+court proceedings.
1232+605
1233+[(b)] (e) If a designated examiner reports orally under Subsection [(10)(a)] (10)(d), the
1234+606
1235+designated examiner shall immediately send a written report to the clerk of the court.
1236+- 18 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1237+607
1238+(11) If a designated examiner is unable to complete an examination on the first attempt
1239+608
1240+because the proposed patient refuses to submit to the examination, the court shall fix a
1241+609
1242+reasonable compensation to be paid to the examiner.
1243+610
1244+(12) If the local mental health authority, the local mental health authority's designee, or a
1245+611
1246+medical examiner determines before the court hearing that the conditions justifying the
1247+612
1248+findings leading to a commitment hearing no longer exist, the local mental health
1249+613
1250+authority, the local mental health authority's designee, or the medical examiner shall
1251+614
1252+immediately report the determination to the court.
1253+615
1254+(13)(a) The court shall terminate the proceedings and dismiss the application before the
1255+616
1256+hearing if both designated examiners inform the court that the proposed patient does
1257+617
1258+not meet the criteria in Subsection (16).
1259+618
1260+(b) The court may terminate the proceedings and dismiss the application at any time,
1261+619
1262+including before the hearing, if the designated examiners or the local mental health
1263+620
1264+authority or the local mental health authority's designee informs the court that the
1265+621
1266+proposed patient:
1267+622
1268+[(a) does not meet the criteria in Subsection (16);]
1269+623
1270+[(b)] (i) has agreed to voluntary commitment, as described in Section 26B-5-360;
1271+624
1272+[(c)] (ii) has acceptable options for treatment programs that are available without
1273+625
1274+court proceedings; or
1275+626
1276+[(d)] (iii) meets the criteria for assisted outpatient treatment described in Section
1277+627
1278+26B-5-351.
1279+628
1280+(14)(a) Before the hearing, the court shall provide the proposed patient an opportunity to
1281+629
1282+be represented by counsel, and if neither the proposed patient nor others provide
1283+630
1284+counsel, the court shall appoint counsel and allow counsel sufficient time to consult
1285+631
1286+with the proposed patient before the hearing.
1287+632
1288+(b) In the case of an indigent proposed patient, the county in which the proposed patient
1289+633
1290+resides or is found shall make payment of reasonable attorney fees for counsel, as
1291+634
1292+determined by the court.
1293+635
1294+(15)(a)(i) The court shall afford the proposed patient, the applicant, and any other
1295+636
1296+person to whom notice is required to be given an opportunity to appear at the
1297+637
1298+hearing, to testify, and to present and cross-examine witnesses.
1299+638
1300+(ii) The court may, in the court's discretion, receive the testimony of any other person.
1301+639
1302+(iii) The court may allow a waiver of the proposed patient's right to appear for good
1303+640
1304+cause, which cause shall be set forth in the record, or an informed waiver by the
1305+- 19 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1306+641
1307+patient, which shall be included in the record.
1308+642
1309+(b) The court is authorized to exclude any person not necessary for the conduct of the
1310+643
1311+proceedings and may, upon motion of counsel, require the testimony of each
1312+644
1313+designated examiner to be given out of the presence of any other designated
1314+645
1315+examiners.
1316+646
1317+(c) The court shall:
1318+647
1319+(i) conduct the hearing in as informal a manner as may be consistent with orderly
1320+648
1321+procedure[, and] ; and
1322+649
1323+(ii) while preserving the due process rights of the proposed patient:
1324+650
1325+(A) conduct the hearing remotely, in accordance with Utah Rules of Civil
1326+651
1327+Procedure, Rule 87, unless the court finds good cause under Rule 87 not to
1328+652
1329+conduct the hearing remotely; or
1330+653
1331+(B) if the court finds good cause under Rule 87 not to conduct the hearing
1332+654
1333+remotely, conduct the hearing in a physical setting that is not likely to have a
1334+655
1335+harmful effect on the mental health of the proposed patient[, while preserving
1336+656
1337+the due process rights of the proposed patient].
1338+657
1339+(d) The court shall consider any relevant historical and material information that is
1340+658
1341+offered, subject to the rules of evidence, including reliable hearsay under Utah Rules
1342+659
1343+of Evidence, Rule 1102.
1344+660
1345+(e)(i) A local mental health authority or the local mental health authority's designee
1346+661
1347+or the physician in charge of the proposed patient's care shall, at the time of the
1348+662
1349+hearing, provide the court with the following information:
1350+663
1351+(A) the detention order;
1352+664
1353+(B) admission notes;
1354+665
1355+(C) the diagnosis;
1356+666
1357+(D) any doctors' orders;
1358+667
1359+(E) progress notes;
1360+668
1361+(F) nursing notes;
1362+669
1363+(G) medication records pertaining to the current commitment; and
1364+670
1365+(H) whether the proposed patient has previously been civilly committed or under
1366+671
1367+an order for assisted outpatient treatment.
1368+672
1369+(ii) The local mental health authority or the local mental health authority's designee
1370+673
1371+or the physician in charge of the proposed patient's care shall also supply the
1372+674
1373+information described in Subsection (15)(e)(i) [shall also be supplied ]to the
1374+- 20 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1375+675
1376+proposed patient's counsel at the time of the hearing, and at any time prior to the
1377+676
1378+hearing upon request by the proposed patient's counsel.
1379+677
1380+(16)(a) The court shall order commitment of an adult proposed patient to a local mental
1381+678
1382+health authority if, upon completion of the hearing and consideration of the
1383+679
1384+information presented, the court finds by clear and convincing evidence that:
1385+680
1386+(i)(A) the proposed patient has a mental illness;
1387+681
1388+(B) because of the proposed patient's mental illness the proposed patient poses a
1389+682
1390+substantial danger to self or others;
1391+683
1392+(C) the proposed patient lacks the ability to engage in a rational decision-making
1393+684
1394+process regarding the acceptance of mental treatment as demonstrated by
1395+685
1396+evidence of inability to weigh the possible risks of accepting or rejecting
1397+686
1398+treatment;
1399+687
1400+(D) there is no appropriate less-restrictive alternative to a court order of
1401+688
1402+commitment; and
1403+689
1404+(E) the local mental health authority can provide the proposed patient with
1405+690
1406+treatment that is adequate and appropriate to the proposed patient's conditions
1407+691
1408+and needs; or
1409+692
1410+(ii)(A) the proposed patient has been charged with a criminal offense;
1411+693
1412+(B) with respect to the charged offense, the proposed patient is found incompetent
1413+694
1414+to proceed as a result of a mental illness;
1415+695
1416+(C) the proposed patient has a mental illness;
1417+696
1418+(D) the proposed patient has a persistent unawareness of their mental illness and
1419+697
1420+the negative consequences of that illness, or within the preceding six months
1421+698
1422+has been requested or ordered to undergo mental health treatment but has
1423+699
1424+unreasonably refused to undergo that treatment;
1425+700
1426+(E) there is no appropriate less-restrictive alternative to a court order of
1427+701
1428+commitment; and
1429+702
1430+(F) the local mental health authority can provide the proposed patient with
1431+703
1432+treatment that is adequate and appropriate to the proposed patient's conditions
1433+704
1434+and needs.
1435+705
1436+(b)(i) If, at the hearing, the court determines that the proposed patient has a mental
1437+706
1438+illness but does not meet the other criteria described in Subsection (16)(a), the
1439+707
1440+court may consider whether the proposed patient meets the criteria for assisted
1441+708
1442+outpatient treatment under Section 26B-5-351.
1443+- 21 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1444+709
1445+(ii) The court may order the proposed patient to receive assisted outpatient treatment
1446+710
1447+in accordance with Section 26B-5-351 if, at the hearing, the court finds the
1448+711
1449+proposed patient meets the criteria for assisted outpatient treatment under Section
1450+712
1451+26B-5-351.
1452+713
1453+(iii) If the court determines that neither the criteria for commitment under Subsection
1454+714
1455+(16)(a) nor the criteria for assisted outpatient treatment under Section 26B-5-351
1456+715
1457+are met, the court shall dismiss the proceedings after the hearing.
1458+716
1459+(17)(a)(i) The order of commitment shall designate the period for which the patient
1460+717
1461+shall be treated.
1462+718
1463+(ii) If the patient is not under an order of commitment at the time of the hearing, the
1464+719
1465+patient's treatment period may not exceed six months without a review hearing.
1466+720
1467+(iii) Upon a review hearing, to be commenced before the expiration of the previous
1468+721
1469+order of commitment, an order for commitment may be for an indeterminate
1470+722
1471+period, if the court finds by clear and convincing evidence that the criteria
1472+723
1473+described in Subsection (16) will last for an indeterminate period.
1474+724
1475+(b)(i) The court shall maintain a current list of all patients under the court's order of
1476+725
1477+commitment and review the list to determine those patients who have been under
1478+726
1479+an order of commitment for the court designated period.
1480+727
1481+(ii) At least two weeks before the expiration of the designated period of any order of
1482+728
1483+commitment still in effect, the court that entered the original order of commitment
1484+729
1485+shall inform the appropriate local mental health authority or the local mental
1486+730
1487+health authority's designee of the expiration.
1488+731
1489+(iii) Upon receipt of the information described in Subsection (17)(b)(ii), the local
1490+732
1491+mental health authority or the local mental health authority's designee shall
1492+733
1493+immediately reexamine the reasons upon which the order of commitment was
1494+734
1495+based.
1496+735
1497+(iv) If, after reexamination under Subsection (17)(b)(iii), the local mental health
1498+736
1499+authority or the local mental health authority's designee determines that the
1500+737
1501+conditions justifying commitment no longer exist, the local mental health
1502+738
1503+authority or the local mental health authority's designee shall discharge the patient
1504+739
1505+from involuntary commitment and immediately report the discharge to the court.
1506+740
1507+(v) If, after reexamination under Subsection (17)(b)(iii), the local mental health
1508+741
1509+authority or the local mental health authority's designee determines that the
1510+742
1511+conditions justifying commitment continue to exist, the court shall immediately
1512+- 22 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1513+743
1514+appoint two designated examiners and proceed under Subsections (8) through (14).
1515+744
1516+(c)(i) The local mental health authority or the local mental health authority's designee
1517+745
1518+responsible for the care of a patient under an order of commitment for an
1519+746
1520+indeterminate period shall, at six-month intervals, reexamine the reasons upon
1521+747
1522+which the order of indeterminate commitment was based.
1523+748
1524+(ii) If the local mental health authority or the local mental health authority's designee
1525+749
1526+determines that the conditions justifying commitment no longer exist, the local
1527+750
1528+mental health authority or the local mental health authority's designee shall
1529+751
1530+discharge the patient from the local mental health authority's or the local mental
1531+752
1532+health authority designee's custody and immediately report the discharge to the
1533+753
1534+court.
1535+754
1536+(iii) If the local mental health authority or the local mental health authority's designee
1537+755
1538+determines that the conditions justifying commitment continue to exist, the local
1539+756
1540+mental health authority or the local mental health authority's designee shall send a
1541+757
1542+written report of the findings to the court.
1543+758
1544+(iv) [A] The local mental health authority or the local mental health authority's
1545+759
1546+designee shall notify the patient and the patient's counsel of record [shall be
1547+760
1548+notified ]in writing that the involuntary commitment will be continued under
1549+761
1550+Subsection (17)(c)(iii), the reasons for the decision to continue, and that the
1551+762
1552+patient has the right to a review hearing by making a request to the court.
1553+763
1554+(v) Upon receiving a request under Subsection (17)(c)(iv), the court shall
1555+764
1556+immediately appoint two designated examiners and proceed under Subsections (8)
1557+765
1558+through (14).
1559+766
1560+(18)(a) Any patient committed as a result of an original hearing or a patient's legally
1561+767
1562+designated representative who is aggrieved by the findings, conclusions, and order of
1563+768
1564+the court entered in the original hearing has the right to a new hearing upon filing a
1565+769
1566+petition [filed ]with the court within 30 days after the day on which the court entered
1567+770
1568+the order[ is entered].
1569+771
1570+(b) The petition shall allege error or mistake in the findings, in which case the court shall
1571+772
1572+appoint three impartial designated examiners previously unrelated to the case to
1573+773
1574+conduct an additional examination of the patient.
1575+774
1576+(c) Except as provided in Subsection (18)(b), the court shall, in all other respects,
1577+775
1578+conduct the new hearing in the manner otherwise permitted.
1579+776
1580+(19) The county in which the proposed patient resides or is found shall pay the costs of all
1581+- 23 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1582+777
1583+proceedings under this section.
1584+778
1585+(20)(a) A local mental health authority shall provide discharge instructions to each
1586+779
1587+individual committed under this section at or before the time the individual is
1588+780
1589+discharged from the local mental health authority's custody, regardless of the
1590+781
1591+circumstances under which the individual is discharged.
1592+782
1593+(b) Discharge instructions provided under Subsection (20)(a) shall include:
1594+783
1595+(i) a summary of why the individual was committed to the local mental health
1596+784
1597+authority;
1598+785
1599+(ii) detailed information about why the individual is being discharged from the local
1600+786
1601+mental health authority's custody;
1602+787
1603+(iii) a safety plan for the individual based on the individual's mental illness or mental
1604+788
1605+or emotional state;
1606+789
1607+(iv) notification to the individual's primary care provider, if applicable;
1608+790
1609+(v) if the individual is discharged without food, housing, or economic security, a
1610+791
1611+referral to appropriate services, if such services exist in the individual's
1612+792
1613+community;
1614+793
1615+(vi) the phone number to call or text for a crisis services hotline, and information
1616+794
1617+about the availability of peer support services;
1618+795
1619+(vii) a copy of any psychiatric advance directive presented to the local mental health
1620+796
1621+authority, if applicable;
1622+797
1623+(viii) information about how to establish a psychiatric advance directive if one was
1624+798
1625+not presented to the local mental health authority;
1626+799
1627+(ix) as applicable, information about medications that were changed or discontinued
1628+800
1629+during the commitment;
1630+801
1631+(x) a list of any screening or diagnostic tests conducted during the commitment;
1632+802
1633+(xi) a summary of therapeutic treatments provided during the commitment;
1634+803
1635+(xii) any laboratory work, including blood samples or imaging, that was completed or
1636+804
1637+attempted during the commitment; and
1638+805
1639+(xiii) information about how to contact the local mental health authority if needed.
1640+806
1641+(c) If an individual's medications were changed, or if an individual was prescribed new
1642+807
1643+medications while committed under this section, discharge instructions provided
1644+808
1645+under Subsection (20)(a) shall include a clinically appropriate supply of medications,
1646+809
1647+as determined by a licensed health care provider, to allow the individual time to
1648+810
1649+access another health care provider or follow-up appointment.
1650+- 24 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1651+811
1652+(d) If an individual refuses to accept discharge instructions, the local mental health
1653+812
1654+authority shall document the refusal in the individual's medical record.
1655+813
1656+(e) If an individual's discharge instructions include referrals to services under Subsection
1657+814
1658+(20)(b)(v), the local mental health authority shall document those referrals in the
1659+815
1660+individual's medical record.
1661+816
1662+(f) The local mental health authority shall attempt to follow up with a discharged
1663+817
1664+individual at least 48 hours after discharge, and may use peer support professionals
1665+818
1666+when performing follow-up care or developing a continuing care plan.
1667+819
1668+(21) If any provision of Subsection (16)(a)(ii) or the application of any provision of
1669+820
1670+Subsection (16)(a)(ii) to any person or circumstance is held invalid by a court with
1671+821
1672+jurisdiction, the remainder of Subsection (16)(a)(ii) shall be given effect without the
1673+822
1674+invalid provision or application. The provisions of Subsection (16)(a)(ii) are severable.
1675+823
1676+Section 8. Section 26B-5-362 is amended to read:
1677+824
1678+26B-5-362 . Commitment and care of criminally insane.
1679+825
1680+ Nothing contained in this part may be construed to alter or change the method presently
1681+826
1682+employed for the commitment and care of the criminally insane as provided in [Title 77,
1683+827
1684+Chapter 15, Inquiry into Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to
1685+828
1686+Proceed.
1687+829
1688+Section 9. Section 26B-5-371 is amended to read:
1689+830
1690+26B-5-371 . Utah Forensic Mental Health Facility -- Design and operation --
1691+831
1692+Security.
1693+832
1694+(1) The forensic mental health facility is a secure treatment facility.
1695+833
1696+(2)(a) The forensic mental health facility accommodates the following populations:
1697+834
1698+(i) prison inmates displaying mental illness necessitating treatment in a secure mental
1699+835
1700+health facility;
1701+836
1702+(ii) criminally adjudicated persons found guilty with a mental illness or guilty with a
1703+837
1704+mental condition at the time of the offense undergoing evaluation for a mental
1705+838
1706+condition under Title 77, Chapter 16a, Commitment and Treatment of Individuals
1707+839
1708+with a Mental Condition;
1709+840
1710+(iii) criminally adjudicated persons undergoing evaluation for competency or found
1711+841
1712+guilty with a mental condition or guilty with a mental condition at the time of the
1713+842
1714+offense under Title 77, Chapter 16a, Commitment and Treatment of Individuals
1715+843
1716+with a Mental Condition, who also have an intellectual disability;
1717+844
1718+(iv) persons undergoing evaluation for competency or found by a court to be
1719+- 25 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1720+845
1721+incompetent to proceed in accordance with [Title 77, Chapter 15, Inquiry into
1722+846
1723+Sanity of Defendant] Title 77, Chapter 15, Defendant's Competency to Proceed, or
1724+847
1725+not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
1726+848
1727+(v) persons who are civilly committed to the custody of a local mental health
1728+849
1729+authority in accordance with this part, and who may not be properly supervised by
1730+850
1731+the Utah State Hospital because of a lack of necessary security, as determined by
1732+851
1733+the superintendent or the superintendent's designee; and
1734+852
1735+(vi) persons ordered to commit themselves to the custody of the division for
1736+853
1737+treatment at the Utah State Hospital as a condition of probation or stay of sentence
1738+854
1739+pursuant to Title 77, Chapter 18, The Judgment.
1740+855
1741+(b) Placement of an offender in the forensic mental health facility under any category
1742+856
1743+described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the
1744+857
1745+offender's status as established by the court at the time of adjudication.
1746+858
1747+(c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
1748+859
1749+department shall make rules providing for the allocation of beds to the categories
1750+860
1751+described in Subsection (2)(a).
1752+861
1753+(3) The department shall:
1754+862
1755+(a) own and operate the forensic mental health facility;
1756+863
1757+(b) provide and supervise administrative and clinical staff; and
1758+864
1759+(c) provide security staff who are trained as psychiatric technicians.
1760+865
1761+(4) Pursuant to Subsection 26B-5-303(3) the executive director shall designate individuals
1762+866
1763+to perform security functions for the state hospital.
1764+867
1765+Section 10. Section 26B-6-401 is amended to read:
1766+868
1767+26B-6-401 . Definitions.
1768+869
1769+ As used in this part:
1770+870
1771+(1) "Approved provider" means a person approved by the division to provide home-and
1772+871
1773+community-based services.
1774+872
1775+(2) "Board" means the Utah State Developmental Center Board created under Section
1776+873
1777+26B-1-429.
1778+874
1779+(3)(a) "Brain injury" means an acquired injury to the brain that is neurological in nature,
1780+875
1781+including a cerebral vascular accident.
1782+876
1783+(b) "Brain injury" does not include a deteriorating disease.
1784+877
1785+(4) "Designated intellectual disability professional" means:
1786+878
1787+(a) a psychologist licensed under Title 58, Chapter 61, Psychologist Licensing Act, who:
1788+- 26 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1789+879
1790+(i)(A) has at least one year of specialized training in working with persons with an
1791+880
1792+intellectual disability; or
1793+881
1794+(B) has at least one year of clinical experience with persons with an intellectual
1795+882
1796+disability; and
1797+883
1798+(ii) is designated by the division as specially qualified, by training and experience, in
1799+884
1800+the treatment of an intellectual disability; or
1801+885
1802+(b) a clinical social worker, certified social worker, marriage and family therapist, or
1803+886
1804+professional counselor, licensed under Title 58, Chapter 60, Mental Health
1805+887
1806+Professional Practice Act, who:
1807+888
1808+(i) has at least two years of clinical experience with persons with an intellectual
1809+889
1810+disability; and
1811+890
1812+(ii) is designated by the division as specially qualified, by training and experience, in
1813+891
1814+the treatment of an intellectual disability.
1815+892
1816+(5) "Deteriorating disease" includes:
1817+893
1818+(a) multiple sclerosis;
1819+894
1820+(b) muscular dystrophy;
1821+895
1822+(c) Huntington's chorea;
1823+896
1824+(d) Alzheimer's disease;
1825+897
1826+(e) ataxia; or
1827+898
1828+(f) cancer.
1829+899
1830+(6) "Developmental center" means the Utah State Developmental Center, established in
1831+900
1832+accordance with Part 5, Utah State Developmental Center.
1833+901
1834+(7) "Director" means the director of the Division of Services for People with Disabilities.
1835+902
1836+(8) "Direct service worker" means a person who provides services to a person with a
1837+903
1838+disability:
1839+904
1840+(a) when the services are rendered in:
1841+905
1842+(i) the physical presence of the person with a disability; or
1843+906
1844+(ii) a location where the person rendering the services has access to the physical
1845+907
1846+presence of the person with a disability; and
1847+908
1848+(b)(i) under a contract with the division;
1849+909
1850+(ii) under a grant agreement with the division; or
1851+910
1852+(iii) as an employee of the division.
1853+911
1854+(9)(a) "Disability" means a severe, chronic disability that:
1855+912
1856+(i) is attributable to:
1857+- 27 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1858+913
1859+(A) an intellectual disability;
1860+914
1861+(B) a condition that qualifies a person as a person with a related condition, as
1862+915
1863+defined in 42 C.F.R. Sec. 435.1010;
1864+916
1865+(C) a physical disability; or
1866+917
1867+(D) a brain injury;
1868+918
1869+(ii) is likely to continue indefinitely;
1870+919
1871+(iii)(A) for a condition described in Subsection (9)(a)(i)(A), (B), or (C), results in
1872+920
1873+a substantial functional limitation in three or more of the following areas of
1874+921
1875+major life activity:
1876+922
1877+(I) self-care;
1878+923
1879+(II) receptive and expressive language;
1880+924
1881+(III) learning;
1882+925
1883+(IV) mobility;
1884+926
1885+(V) self-direction;
1886+927
1887+(VI) capacity for independent living; or
1888+928
1889+(VII) economic self-sufficiency; or
1890+929
1891+(B) for a condition described in Subsection (9)(a)(i)(D), results in a substantial
1892+930
1893+limitation in three or more of the following areas:
1894+931
1895+(I) memory or cognition;
1896+932
1897+(II) activities of daily life;
1898+933
1899+(III) judgment and self-protection;
1900+934
1901+(IV) control of emotions;
1902+935
1903+(V) communication;
1904+936
1905+(VI) physical health; or
1906+937
1907+(VII) employment; and
1908+938
1909+(iv) requires a combination or sequence of special interdisciplinary or generic care,
1910+939
1911+treatment, or other services that:
1912+940
1913+(A) may continue throughout life; and
1914+941
1915+(B) must be individually planned and coordinated.
1916+942
1917+(b) "Disability" does not include a condition due solely to:
1918+943
1919+(i) mental illness;
1920+944
1921+(ii) personality disorder;
1922+945
1923+(iii) deafness or being hard of hearing;
1924+946
1925+(iv) visual impairment;
1926+- 28 - 03-07 11:11 1st Sub. (Buff) H.B. 334
1927+947
1928+(v) learning disability;
1929+948
1930+(vi) behavior disorder;
1931+949
1932+(vii) substance abuse; or
1933+950
1934+(viii) the aging process.
1935+951
1936+(10) "Division" means the Division of Services for People with Disabilities.
1937+952
1938+(11) "Eligible to receive division services" or "eligibility" means qualification, based on
1939+953
1940+criteria established by the division, to receive services that are administered by the
1941+954
1942+division.
1943+955
1944+(12) "Endorsed program" means a facility or program that:
1945+956
1946+(a) is operated:
1947+957
1948+(i) by the division; or
1949+958
1950+(ii) under contract with the division; or
1951+959
1952+(b) provides services to a person committed to the division under Part 6, Admission to
1953+960
1954+an Intermediate Care Facility for People with an Intellectual Disability.
1955+961
1956+(13) "Licensed physician" means:
1957+962
1958+(a) an individual licensed to practice medicine under:
1959+963
1960+(i) Title 58, Chapter 67, Utah Medical Practice Act; or
1961+964
1962+(ii) Title 58, Chapter 68, Utah Osteopathic Medical Practice Act; or
1963+965
1964+(b) a medical officer of the United States Government while in this state in the
1965+966
1966+performance of official duties.
1967+967
1968+(14) "Limited support services" means services that are administered by the division to
1969+968
1970+individuals with a disability:
1971+969
1972+(a) under a waiver authorized under 42 U.S.C. Sec. 1396n(c) by the Centers for
1973+970
1974+Medicare and Medicaid Services that permits the division to limit services to an
1975+971
1976+individual who is eligible to receive division services; and
1977+972
1978+(b) through a program that:
1979+973
1980+(i) was not operated by the division on or before January 1, 2020; and
1981+974
1982+(ii)(A) limits the kinds of services that an individual may receive; or
1983+975
1984+(B) sets a maximum total dollar amount for program services provided to each
1985+976
1986+individual.
1987+977
1988+(15) "Physical disability" means a medically determinable physical impairment that has
1989+978
1990+resulted in the functional loss of two or more of a person's limbs.
1991+979
1992+(16) "Public funds" means state or federal funds that are disbursed by the division.
1993+980
1994+(17)(a) "Related condition" means a severe, chronic condition that:
1995+- 29 - 1st Sub. (Buff) H.B. 334 03-07 11:11
1996+981
1997+(i) manifests before the day on which an individual turns 22 years old;
1998+982
1999+(ii) is likely to continue indefinitely;
2000+983
2001+(iii) results in substantial functional limitations;
2002+984
2003+(iv) is closely related to an intellectual disability because the condition results in the
2004+985
2005+impairment of:
2006+986
2007+(A) general intellectual functioning, similar to that of an individual with an
2008+987
2009+intellectual disability; or
2010+988
2011+(B) adaptive behavior, similar to that of an individual with an intellectual
2012+989
2013+disability; and
2014+990
2015+(v) requires treatment or services similar to the treatment or services required for an
2016+991
2017+individual with an intellectual disability.
2018+992
2019+(b) "Related condition" does not include mental illness, as that term is defined in Section
2020+993
2021+26B-5-301.
2022+994
2023+[(17)] (18) "Resident" means an individual under observation, care, or treatment in an
2024+995
2025+intermediate care facility for people with an intellectual disability.
2026+996
2027+(19) "Substantial danger" means that because of an intellectual disability or related
2028+997
2029+condition, an individual is at risk of:
2030+998
2031+(a) suicide;
2032+999
2033+(b) serious bodily self-injury;
2034+1000
2035+(c) serious bodily injury because the individual lacks capacity to provide the basic
2036+1001
2037+necessities of life, such as food, clothing, or shelter;
2038+1002
2039+(d) causing or attempting to cause serious bodily injury or serious emotional harm to
2040+1003
2041+another individual;
2042+1004
2043+(e) engaging in harmful sexual conduct, as that term is defined in Section 26B-5-301; or
2044+1005
2045+(f) suffering serious physical harm or serious emotional harm as a result of being
2046+1006
2047+exploited, abused, or neglected.
2048+1007
2049+[(18)] (20) "Sustainability fund" means the Utah State Developmental Center Long-Term
2050+1008
2051+Sustainability Fund created in Section 26B-1-331.
2052+1009
2053+Section 11. Section 26B-6-606 is amended to read:
2054+1010
2055+26B-6-606 . Involuntary commitment.
2056+1011
2057+ An individual with an intellectual disability or related condition may not be involuntarily
2058+1012
2059+committed to [an intermediate care facility for people with an intellectual disability] the division
2060+1013
2061+except in accordance with Sections 26B-6-607 and 26B-6-608.
2062+1014
2063+Section 12. Section 26B-6-607 is amended to read:
2064+- 30 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2065+1015
2066+26B-6-607 . Temporary emergency commitment -- Observation and evaluation.
2067+1016
2068+(1) [The director of the division or his designee may temporarily commit an individual to
2069+1017
2070+the division and therefore, as a matter of course, to an intermediate care facility for
2071+1018
2072+people with an intellectual disability for observation and evaluation] An individual with
2073+1019
2074+an intellectual disability or related condition may be committed to the division on an
2075+1020
2076+emergency basis upon[:]
2077+1021
2078+[(a) written application by a responsible person who has reason to know that the
2079+1022
2080+individual is in need of commitment, stating:]
2081+1023
2082+[(i) a belief that the individual has an intellectual disability and is likely to cause
2083+1024
2084+serious injury to self or others if not immediately committed;]
2085+1025
2086+[(ii) personal knowledge of the individual's condition; and]
2087+1026
2088+[(iii) the circumstances supporting that belief; or]
2089+1027
2090+[(b)] certification by a [licensed physician or ]designated intellectual disability
2091+1028
2092+professional stating that the [physician or ]designated intellectual disability
2093+1029
2094+professional:
2095+1030
2096+[(i)] (a) has examined the individual within a three-day period, excluding Saturdays,
2097+1031
2098+Sundays, and state holidays, immediately preceding the certification; and
2099+1032
2100+[(ii)] (b) is of the opinion that the individual has an intellectual disability or related
2101+1033
2102+condition, and that because of the individual's intellectual disability [is likely to injure]
2103+1034
2104+or related condition is a substantial danger to self or others[ if not immediately
2105+1035
2106+committed].
2107+1036
2108+(2) If the individual in need of commitment is not placed in the custody of the director or
2109+1037
2110+the director's designee by the person submitting the [application, the director's]
2111+1038
2112+certification, the director or the director's designee may certify, either in writing or orally
2113+1039
2114+that the individual is in need of immediate commitment to prevent [injury] posing
2115+1040
2116+substantial danger to self or others.
2117+1041
2118+(3) Upon receipt of the [application] certification required by Subsection [(1)(a) and the
2119+1042
2120+certifications required by Subsections (1)(b) and (2)] (2), a peace officer [may take the
2121+1043
2122+individual named in the application and certificates into custody, and ]may transport the
2123+1044
2124+individual to a [designated intermediate care facility for people with an intellectual
2125+1045
2126+disability] placement designated by the division.
2127+1046
2128+(4)(a) An individual committed under this section may be held for a maximum of [72
2129+1047
2130+hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of that
2131+1048
2132+time,] 10 days, after which the individual shall be released unless proceedings for
2133+- 31 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2134+1049
2135+involuntary commitment have been commenced under Section 26B-6-608.
2136+1050
2137+(b) [After] If proceedings for involuntary commitment have been commenced[ the
2138+1051
2139+individual shall be released unless an order of detention is issued in accordance with
2140+1052
2141+Section 26B-6-608] , an emergency order under this section remains in effect until:
2142+1053
2143+(i) the division determines that the conditions justifying commitment no longer exist;
2144+1054
2145+or
2146+1055
2147+(ii) a court order is issued pursuant to Section 26B-6-608.
2148+1056
2149+(5)(a) If an individual is committed to the division under this section[ on the application
2150+1057
2151+of any person other than the individual's legal guardian, spouse, parent, or next of kin],
2152+1058
2153+the director or [his] the director's designee shall immediately give notice of the
2154+1059
2155+commitment to the individual's legal guardian[, spouse, parent, or next of kin], if
2156+1060
2157+known.
2158+1061
2159+(b)(i) Immediately after an individual is committed to the division under this section,
2160+1062
2161+the division shall inform the individual, orally and in writing, of the individual's
2162+1063
2163+right to communicate with an attorney.
2164+1064
2165+(ii) If the individual desires to communicate with an attorney, the division shall take
2166+1065
2167+immediate steps to assist the individual in contacting and communicating with an
2168+1066
2169+attorney.
2170+1067
2171+(6)(a) The division [or an intermediate care facility ]shall provide discharge instructions
2172+1068
2173+to each individual committed under this section at or before the time the individual is
2174+1069
2175+discharged from the custody of the division[ or intermediate care facility],
2176+1070
2177+regardless of whether the individual is discharged by being released or under other
2178+1071
2179+circumstances.
2180+1072
2181+(b) Discharge instructions provided under Subsection (6)(a) shall include:
2182+1073
2183+(i) a summary of why the individual was committed;
2184+1074
2185+(ii) detailed information about why the individual is being discharged;
2186+1075
2187+(iii) a safety plan for the individual based on the individual's intellectual disability
2188+1076
2189+and condition;
2190+1077
2191+(iv) notification to the individual's primary care provider, if applicable;
2192+1078
2193+(v) if the individual is discharged without food, housing, or economic security, a
2194+1079
2195+referral to appropriate services, if such services exist in the individual's
2196+1080
2197+community;
2198+1081
2199+(vi) the phone number to call or text for a crisis services hotline, and information
2200+1082
2201+about the availability of peer support services;
2202+- 32 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2203+1083
2204+(vii) a copy of any advance directive presented to the local mental health authority, if
2205+1084
2206+applicable;
2207+1085
2208+(viii) information about how to establish an advance directive if one was not
2209+1086
2210+presented to the division[ or intermediate care facility];
2211+1087
2212+(ix) as applicable, information about medications that were changed or discontinued
2213+1088
2214+during the commitment;
2215+1089
2216+(x) a list of any screening or diagnostic tests conducted during the commitment;
2217+1090
2218+(xi) a summary of therapeutic treatments provided during the commitment;
2219+1091
2220+(xii) any laboratory work, including blood samples or imaging, that was completed or
2221+1092
2222+attempted during the commitment; and
2223+1093
2224+(xiii) information about how to contact the division[ or intermediate care facility] if
2225+1094
2226+needed.
2227+1095
2228+(c) If an individual's medications were changed, or if an individual was prescribed new
2229+1096
2230+medications while committed under this section, discharge instructions provided
2231+1097
2232+under Subsection (6)(a) shall include a clinically appropriate supply of medications,
2233+1098
2234+as determined by a licensed health care provider, to allow the individual time to
2235+1099
2236+access another health care provider or follow-up appointment.
2237+1100
2238+(d) If an individual refuses to accept discharge instructions, the division[ or intermediate
2239+1101
2240+care facility] shall document the refusal in the individual's medical record.
2241+1102
2242+(e) If an individual's discharge instructions include referrals to services under Subsection
2243+1103
2244+(6)(b)(v), the division[ or intermediate care facility] shall document those referrals
2245+1104
2246+in the individual's medical record.
2247+1105
2248+(f) The division shall attempt to follow up with a discharged individual at least 48 hours
2249+1106
2250+after discharge, and may use peer support professionals when performing follow-up
2251+1107
2252+care or developing a continuing care plan.
2253+1108
2254+Section 13. Section 26B-6-608 is amended to read:
2255+1109
2256+26B-6-608 . Involuntary commitment -- Procedures -- Necessary findings --
2257+1110
2258+Periodic review.
2259+1111
2260+[(1) Any responsible person who has reason to know that an individual is in need of
2261+1112
2262+commitment, who has a belief that the individual has an intellectual disability, and who
2263+1113
2264+has personal knowledge of the conditions and circumstances supporting that belief, may
2265+1114
2266+commence proceedings for involuntary commitment by filing a written petition with the
2267+1115
2268+district court, or if the subject of the petition is less than 18 years old with the juvenile
2269+1116
2270+court, of the county in which the individual to be committed is physically located at the
2271+- 33 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2272+1117
2273+time the petition is filed. The application shall be accompanied by:]
2274+1118
2275+[(a) a certificate of a licensed physician or a designated intellectual disability
2276+1119
2277+professional, stating that within a seven-day period immediately preceding the
2278+1120
2279+certification, the physician or designated intellectual disability professional examined
2280+1121
2281+the individual and believes that the individual has an intellectual disability and is in
2282+1122
2283+need of involuntary commitment; or]
2284+1123
2285+[(b) a written statement by the petitioner that:]
2286+1124
2287+[(i) states that the individual was requested to, but refused to, submit to an
2288+1125
2289+examination for an intellectual disability by a licensed physician or designated
2290+1126
2291+intellectual disability professional, and that the individual refuses to voluntarily go
2292+1127
2293+to the division or an intermediate care facility for people with an intellectual
2294+1128
2295+disability recommended by the division for treatment;]
2296+1129
2297+[(ii) is under oath; and]
2298+1130
2299+[(iii) sets forth the facts on which the statement is based.]
2300+1131
2301+[(2) Before issuing a detention order, the court may require the petitioner to consult with
2302+1132
2303+personnel at the division or at an intermediate care facility for people with an intellectual
2304+1133
2305+disability and may direct a designated intellectual disability professional to interview the
2306+1134
2307+petitioner and the individual to be committed, to determine the existing facts, and to
2308+1135
2309+report them to the court.]
2310+1136
2311+[(3) The court may issue a detention order and may direct a peace officer to immediately
2312+1137
2313+take the individual to an intermediate care facility for people with an intellectual
2314+1138
2315+disability to be detained for purposes of an examination if the court finds from the
2316+1139
2317+petition, from other statements under oath, or from reports of physicians or designated
2318+1140
2319+intellectual disability professionals that there is a reasonable basis to believe that the
2320+1141
2321+individual to be committed:]
2322+1142
2323+[(a) poses an immediate danger of physical injury to self or others;]
2324+1143
2325+[(b) requires involuntary commitment pending examination and hearing;]
2326+1144
2327+[(c) the individual was requested but refused to submit to an examination by a licensed
2328+1145
2329+physician or designated intellectual disability professional; or]
2330+1146
2331+[(d) the individual refused to voluntarily go to the division or to an intermediate care
2332+1147
2333+facility for people with an intellectual disability recommended by the division.]
2334+1148
2335+[(4)(a) If the court issues a detention order based on an application that did not include
2336+1149
2337+a certification by a designated intellectual disability professional or physician in
2338+1150
2339+accordance with Subsection (1)(a), the director or his designee shall within 24 hours
2340+- 34 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2341+1151
2342+after issuance of the detention order, excluding Saturdays, Sundays, and legal
2343+1152
2344+holidays, examine the individual, report the results of the examination to the court
2345+1153
2346+and inform the court:]
2347+1154
2348+[(i) whether the director or his designee believes that the individual has an intellectual
2349+1155
2350+disability; and]
2351+1156
2352+[(ii) whether appropriate treatment programs are available and will be used by the
2353+1157
2354+individual without court proceedings.]
2355+1158
2356+[(b) If the report of the director or his designee is based on an oral report of the
2357+1159
2358+examiner, the examiner shall immediately send the results of the examination in
2359+1160
2360+writing to the clerk of the court.]
2361+1161
2362+[(5) Immediately after an individual is involuntarily committed under a detention order or
2363+1162
2364+under Section 26B-6-607, the director or his designee shall inform the individual, orally
2365+1163
2366+and in writing, of his right to communicate with an attorney. If an individual desires to
2367+1164
2368+communicate with an attorney, the director or his designee shall take immediate steps to
2369+1165
2370+assist the individual in contacting and communicating with an attorney.]
2371+1166
2372+(1)(a) Any responsible person who has reason to know that an individual is in need of
2373+1167
2374+commitment, who has a belief that the individual has an intellectual disability or
2375+1168
2376+related condition, and who has personal knowledge of the conditions and
2377+1169
2378+circumstances supporting that belief, may make a referral to the division to conduct
2379+1170
2380+an assessment to determine if the individual meets the criteria for involuntary
2381+1171
2382+commitment under this section.
2383+1172
2384+(b)(i) To conduct an assessment of an individual who may be in need of commitment
2385+1173
2386+under this section, the division shall have two designated intellectual disability
2387+1174
2388+professionals examine the individual.
2389+1175
2390+(ii) The examinations described in Subsection (1)(b)(i) shall be conducted separately
2391+1176
2392+and at a suitable location not likely to have a harmful effect on the individual
2393+1177
2394+being examined.
2395+1178
2396+(c) If the designated intellectual disability professionals who conduct the examinations
2397+1179
2398+described in Subsection (1)(b)(i) both believe the examined individual meets the
2399+1180
2400+criteria for involuntary commitment under this section, the division may file a written
2401+1181
2402+petition to commence involuntary commitment proceedings with the district court, or
2403+1182
2404+with the juvenile court if the subject of the petition is less than 18 years old, of the
2405+1183
2406+county in which the subject of the petition is physically located at the time the
2407+1184
2408+petition is filed.
2409+- 35 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2410+1185
2411+(d)(i) The division shall include with a petition described in Subsection (1)(c) a
2412+1186
2413+certification from each of the designated intellectual disability professionals who
2414+1187
2415+examined the subject of the petition.
2416+1188
2417+(ii) A designated intellectual disability professional's certification shall state that:
2418+1189
2419+(A) within a seven-day period immediately preceding the filing of the petition, the
2420+1190
2421+designated intellectual disability professional examined the subject of the
2422+1191
2423+petition separate from the other designated intellectual disability professional;
2424+1192
2425+and
2426+1193
2427+(B) it is the designated intellectual disability professional's belief that the subject
2428+1194
2429+of the petition has an intellectual disability or related condition and meets the
2430+1195
2431+criteria for involuntary commitment under this section.
2432+1196
2433+(2)(a) If, pursuant to Title 77, Chapter 15, Defendant's Competency to Proceed, or Title
2434+1197
2435+80, Chapter 6, Part 4, Competency, a prosecutor informs a court that commitment
2436+1198
2437+proceedings will be initiated, the prosecutor shall make a referral to the division
2438+1199
2439+pursuant to Subsection (1).
2440+1200
2441+(b) If a prosecutor makes a referral to the division pursuant to Subsection (1), the
2442+1201
2443+division shall complete an assessment as described in Subsection (1)(b) within seven
2444+1202
2445+days after the day on which the prosecutor makes the referral unless the court
2446+1203
2447+enlarges the time for good cause shown.
2448+1204
2449+(c) Upon completion of the assessment described in Subsection (2)(b), if the designated
2450+1205
2451+intellectual disability professionals who examine the individual who is the subject of
2452+1206
2453+the referral both certify that they believe the individual meets the criteria for
2454+1207
2455+involuntary commitment under this section, the division may file a petition to
2456+1208
2457+commence involuntary commitment proceedings in accordance with Subsections
2458+1209
2459+(1)(c) and (d).
2460+1210
2461+[(6)] (3)(a) Immediately after [commencement of proceedings] the division files a petition
2462+1211
2463+for involuntary commitment under this section, the court shall:
2464+1212
2465+(i) schedule a hearing on the petition for no later than 10 days after the day on which
2466+1213
2467+the division filed the petition; and
2468+1214
2469+(ii) give notice of commencement of the proceedings to:
2470+1215
2471+[(i)] (A) the individual to be committed;
2472+1216
2473+[(ii)] (B) the [applicant] referent under Subsection (1)(a) or (2)(a), if applicable;
2474+1217
2475+[(iii)] (C) any legal guardian of the individual;
2476+1218
2477+[(iv)] (D) adult members of the individual's immediate family;
2478+- 36 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2479+1219
2480+[(v)] (E) legal counsel of the individual to be committed, if any;
2481+1220
2482+[(vi)] (F) the division; and
2483+1221
2484+[(vii)] (G) any other person to whom the individual requests, or the court
2485+1222
2486+designates, notice to be given.
2487+1223
2488+(b) If an individual cannot or refuses to disclose the identity of persons to be notified,
2489+1224
2490+the extent of notice shall be determined by the court.
2491+1225
2492+[(7)] (4) [That notice] The notice described in Subsection (3) shall:
2493+1226
2494+(a) set forth the allegations of the petition and all supporting facts;
2495+1227
2496+(b) be accompanied by a copy of [any detention] an emergency order issued under [
2497+1228
2498+Subsection (3)] Section 26B-6-607, if applicable; and
2499+1229
2500+(c) state that a hearing will be held within the time provided by law, and give the time
2501+1230
2502+and place for that hearing.
2503+1231
2504+[(8)] (5) The court may transfer the case and the custody of the individual to be committed
2505+1232
2506+to any other district court within the state[, if:] if the individual resides in another
2507+1233
2508+jurisdiction within the state.
2509+1234
2510+[(a) there are no appropriate facilities for persons with an intellectual disability within
2511+1235
2512+the judicial district; and]
2513+1236
2514+[(b) the transfer will not be adverse to the interests of the individual.]
2515+1237
2516+[(9)(a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, after any
2517+1238
2518+order or commitment under a detention order, the court shall appoint two designated
2519+1239
2520+intellectual disability professionals to examine the individual. If requested by the
2521+1240
2522+individual's counsel, the court shall appoint a reasonably available, qualified person
2523+1241
2524+designated by counsel to be one of the examining designated intellectual disability
2525+1242
2526+professionals. The examinations shall be conducted:]
2527+1243
2528+[(i) separately;]
2529+1244
2530+[(ii) at the home of the individual to be committed, a hospital, an intermediate care
2531+1245
2532+facility for people with an intellectual disability, or any other suitable place not
2533+1246
2534+likely to have a harmful effect on the individual; and]
2535+1247
2536+[(iii) within a reasonable period of time after appointment of the examiners by the
2537+1248
2538+court.]
2539+1249
2540+[(b) The court shall set a time for a hearing to be held within 10 court days of the
2541+1250
2542+appointment of the examiners. However, the court may immediately terminate the
2543+1251
2544+proceedings and dismiss the application if, prior to the hearing date, the examiners,
2545+1252
2546+the director, or his designee informs the court that:]
2547+- 37 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2548+1253
2549+[(i) the individual does not have an intellectual disability; or]
2550+1254
2551+[(ii) treatment programs are available and will be used by the individual without court
2552+1255
2553+proceedings.]
2554+1256
2555+[(10)] (6)(a)(i) Each individual has the right to be represented by counsel at the
2556+1257
2557+commitment hearing and in all preliminary proceedings.
2558+1258
2559+(ii) If neither the individual nor others provide counsel, [ ]the court shall appoint
2560+1259
2561+counsel and allow sufficient time for counsel to consult with the individual prior
2562+1260
2563+to any hearing.
2564+1261
2565+(b) If the individual is indigent, the county in which the individual was physically
2566+1262
2567+located when taken into custody shall pay reasonable attorney fees as determined by
2568+1263
2569+the court.
2570+1264
2571+[(11)] (7) [The division or a designated intellectual disability professional in charge of the
2572+1265
2573+individual's care] Upon order of the court, the division or the division's designee shall
2574+1266
2575+provide all [documented information on] relevant documentation on the individual to be
2576+1267
2577+committed [and ]to the court [at the time of the hearing. The] and the individual's
2578+1268
2579+attorney[ shall have access to all documented information on the individual at the time
2580+1269
2581+of and prior to the hearing].
2582+1270
2583+[(12)] (8)(a) The court shall provide an opportunity to the individual, the petitioner, and
2584+1271
2585+all other persons to whom notice is required to be given to appear at the hearing, to
2586+1272
2587+testify, and to present and cross-examine witnesses.
2588+1273
2589+(b) The court may, in its discretion:
2590+1274
2591+(i) receive the testimony of any other person;
2592+1275
2593+(ii) allow a waiver of the right to appear only for good cause shown;
2594+1276
2595+(iii) exclude from the hearing all persons not necessary to conduct the proceedings;
2596+1277
2597+and
2598+1278
2599+(iv) upon motion of counsel, require the testimony of each examiner to be given out
2600+1279
2601+of the presence of any other examiner.
2602+1280
2603+(c)(i) The hearing shall be conducted in as informal a manner as may be consistent
2604+1281
2605+with orderly procedure, and in a physical setting that is not likely to have a
2606+1282
2607+harmful effect on the individual.
2608+1283
2609+(ii) The Utah Rules of Evidence apply, and the hearing shall be a matter of court
2610+1284
2611+record.
2612+1285
2613+(iii) A verbatim record of the proceedings shall be maintained.
2614+1286
2615+[(13)] (9) The court may order commitment if, upon completion of the hearing and
2616+- 38 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2617+1287
2618+consideration of the record, [it] the court finds by clear and convincing evidence that all
2619+1288
2620+of the following conditions are met:
2621+1289
2622+(a) the individual to be committed has an intellectual disability or a related condition;
2623+1290
2624+(b) because of the individual's intellectual disability or related condition, one or more of
2625+1291
2626+the following conditions exist:
2627+1292
2628+(i) the individual poses [an immediate danger of physical injury] substantial danger to
2629+1293
2630+self or others;
2631+1294
2632+(ii) the individual lacks the capacity to provide the basic necessities of life, such as
2633+1295
2634+food, clothing, or shelter;[ or]
2635+1296
2636+(iii) the individual is in immediate need of habilitation, rehabilitation, care, or
2637+1297
2638+treatment to minimize the effects of the condition which poses a [threat of serious
2639+1298
2640+physical or psychological injury to the individual, and] risk of substantial danger to
2641+1299
2642+self or others; or
2643+1300
2644+(iv) the individual lacks the capacity to engage in a rational decision-making process
2645+1301
2646+concerning the need for habilitation, rehabilitation, care, or treatment, as
2647+1302
2648+evidenced by an inability to weigh the possible costs and benefits of the care or
2649+1303
2650+treatment and the alternatives to it;
2651+1304
2652+(c) there is no appropriate, less restrictive alternative reasonably available; and
2653+1305
2654+(d) the division [or the intermediate care facility for people with an intellectual disability
2655+1306
2656+recommended by the division in which the individual is to be committed ]can provide
2657+1307
2658+the individual with treatment, care, habilitation, or rehabilitation that is adequate and
2659+1308
2660+appropriate to the individual's condition and needs.
2661+1309
2662+[(14)] (10) In the absence of any of the required findings by the court, described in
2663+1310
2664+Subsection [(13)] (9), the court shall dismiss the proceedings.
2665+1311
2666+[(15)] (11)(a) The order of commitment shall designate the period for which the
2667+1312
2668+individual will be committed.
2669+1313
2670+(b) An initial commitment may not exceed six months.[ Before the end of the initial
2671+1314
2672+commitment period, the administrator of the intermediate care facility for people with
2673+1315
2674+an intellectual disability shall commence a review hearing on behalf of the individual.]
2675+1316
2676+[(b) At the conclusion of the review hearing, the court may issue an order of
2677+1317
2678+commitment for up to a one-year period.]
2679+1318
2680+[(16)] (12)(a) An individual committed under this part has the right to a rehearing[, upon
2681+1319
2682+filing a petition with the court within 30 days after entry of the court's order. If the
2683+1320
2684+petition for rehearing alleges error or mistake in the court's findings, the] if, within 15
2685+- 39 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2686+1321
2687+days after the court enters the order of commitment, the individual files a petition
2688+1322
2689+with the court alleging error or mistake in the court's findings.
2690+1323
2691+(b) Upon a request for rehearing filed in accordance with Subsection (12)(a), the court
2692+1324
2693+shall:
2694+1325
2695+(i) appoint[ one impartial licensed physician and] two impartial designated
2696+1326
2697+intellectual disability professionals who have not previously been involved in the
2698+1327
2699+case to examine the individual[. ] ; and
2700+1328
2701+(ii) schedule a rehearing to be held within 30 days after the court entered the order of
2702+1329
2703+commitment.
2704+1330
2705+(c) [The] In all other respects, the rehearing shall[, in all other respects,] be conducted in
2706+1331
2707+accordance with this part.
2708+1332
2709+[(17)] (13)(a)(i) The court shall maintain a current list of all individuals under its
2710+1333
2711+orders of commitment.
2712+1334
2713+(ii) [That list shall be reviewed in order] The court shall review the list described in
2714+1335
2715+Subsection (13)(a)(i) to determine those patients who have been under an order of
2716+1336
2717+commitment for the designated period.
2718+1337
2719+(b) At least two weeks prior to the expiration of the designated period of any
2720+1338
2721+commitment order still in effect, the court that entered the original order shall [inform
2722+1339
2723+the director of the division of the impending expiration of the designated
2724+1340
2725+commitment period] commence and send notice to all parties of a review hearing for
2726+1341
2727+the committed individual.
2728+1342
2729+(c) Prior to the review hearing, a division-designated intellectual disability professional
2730+1343
2731+shall reexamine the basis for the order of commitment and provide a report of that
2732+1344
2733+reexamination to the court.
2734+1345
2735+(d) At the conclusion of a review hearing, the court may:
2736+1346
2737+(i) issue an order of commitment for up to a one-year period; or
2738+1347
2739+(ii) discharge the individual from involuntary commitment if the conditions justifying
2740+1348
2741+commitment no longer exist.
2742+1349
2743+[(c) The staff of the division shall immediately:]
2744+1350
2745+[(i) reexamine the reasons upon which the order of commitment was based and report
2746+1351
2747+the results of the examination to the court;]
2748+1352
2749+[(ii) discharge the resident from involuntary commitment if the conditions justifying
2750+1353
2751+commitment no longer exist; and]
2752+1354
2753+[(iii) immediately inform the court of any discharge.]
2754+- 40 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2755+1355
2756+[(d)] (e) [If the director of the division reports to the court that the conditions justifying
2757+1356
2758+commitment no longer exist, and the administrator of the intermediate care facility
2759+1357
2760+for people with an intellectual disability does not discharge the individual at the end
2761+1358
2762+of the designated period, the court shall order the immediate discharge of the
2763+1359
2764+individual, unless involuntary commitment proceedings are again commenced in
2765+1360
2766+accordance with this section] If at any time during the commitment period the director
2767+1361
2768+or the director's designee determines that the conditions justifying commitment no
2769+1362
2770+longer exist, the division shall immediately discharge the individual from the
2771+1363
2772+commitment and notify the court.
2773+1364
2774+(f) If the division does not discharge an individual at the end of the designated period of
2775+1365
2776+a commitment order, the court shall order the immediate discharge of the individual
2777+1366
2778+unless involuntary commitment proceedings are commenced again in accordance
2779+1367
2780+with this section.
2781+1368
2782+[(e) If the director of the division, or the director's designee reports to the court that the
2783+1369
2784+conditions designated in Subsection (13) still exist, the court may extend the
2785+1370
2786+commitment order for up to one year. At the end of any extension, the individual
2787+1371
2788+must be reexamined in accordance with this section, or discharged.]
2789+1372
2790+[(18)] (14) When a resident is discharged under this [subsection] section, the division shall [
2791+1373
2792+provide any further support services available and] continue to provide division services
2793+1374
2794+for which the individual is eligible and as required to meet the resident's needs.
2795+1375
2796+[(19)] (15)(a) The division[ or an intermediate care facility] shall provide discharge
2797+1376
2798+instructions to each individual committed under this section at or before the time the
2799+1377
2800+individual is discharged from the custody of the division[ or intermediate care facility],
2801+1378
2802+regardless of whether the individual is discharged by being released or under other
2803+1379
2804+circumstances.
2805+1380
2806+(b) Discharge instructions provided under Subsection [(19)(a)] (15)(a) shall include:
2807+1381
2808+(i) a summary of why the individual was committed;
2809+1382
2810+(ii) detailed information about why the individual is being discharged;
2811+1383
2812+(iii) a safety plan for the individual based on the individual's intellectual disability
2813+1384
2814+and condition;
2815+1385
2816+(iv) notification to the individual's primary care provider, if applicable;
2817+1386
2818+(v) if the individual is discharged without food, housing, or economic security, a
2819+1387
2820+referral to appropriate services, if such services exist in the individual's
2821+1388
2822+community;
2823+- 41 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2824+1389
2825+(vi) the phone number to call or text for a crisis services hotline, and information
2826+1390
2827+about the availability of peer support services;
2828+1391
2829+(vii) a copy of any advance directive presented to the local mental health authority, if
2830+1392
2831+applicable;
2832+1393
2833+(viii) information about how to establish an advance directive if one was not
2834+1394
2835+presented to the division[ or intermediate care facility];
2836+1395
2837+(ix) as applicable, information about medications that were changed or discontinued
2838+1396
2839+during the commitment;
2840+1397
2841+(x) a list of any screening or diagnostic tests conducted during the commitment;
2842+1398
2843+(xi) a summary of therapeutic treatments provided during the commitment;
2844+1399
2845+(xii) any laboratory work, including blood samples or imaging, that was completed or
2846+1400
2847+attempted during the commitment; and
2848+1401
2849+(xiii) information about how to contact the division[ or intermediate care facility] if
2850+1402
2851+needed.
2852+1403
2853+(c) If an individual's medications were changed, or if an individual was prescribed new
2854+1404
2855+medications while committed under this section, discharge instructions provided
2856+1405
2857+under Subsection [(19)(a)] (15)(a) shall include a clinically appropriate supply of
2858+1406
2859+medications, as determined by a licensed health care provider, to allow the individual
2860+1407
2861+time to access another health care provider or follow-up appointment.
2862+1408
2863+(d) If an individual refuses to accept discharge instructions, the division[ or intermediate
2864+1409
2865+care facility] shall document the refusal in the individual's medical record.
2866+1410
2867+(e) If an individual's discharge instructions include referrals to services under Subsection [
2868+1411
2869+(19)(b)(v)] (15)(b)(v), the division[ or intermediate care facility] shall document those
2870+1412
2871+referrals in the individual's medical record.
2872+1413
2873+(f) The division shall attempt to follow up with a discharged individual at least 48 hours
2874+1414
2875+after discharge, and may use peer support professionals when performing follow-up
2876+1415
2877+care or developing a continuing care plan.
2878+1416
2879+Section 14. Section 26B-6-613 is amended to read:
2880+1417
2881+26B-6-613 . Involuntary treatment with medication -- Committee -- Findings.
2882+1418
2883+(1) If, after commitment, a resident elects to refuse treatment with medication, the director,
2884+1419
2885+the administrator of the intermediate care facility for people with an intellectual
2886+1420
2887+disability, or a designee, shall submit documentation regarding the resident's proposed
2888+1421
2889+treatment to a committee composed of:
2890+1422
2891+(a) a licensed physician experienced in treating persons with an intellectual disability,
2892+- 42 - 03-07 11:11 1st Sub. (Buff) H.B. 334
2893+1423
2894+who is not directly involved in the resident's treatment or diagnosis, and who is not
2895+1424
2896+biased toward any one facility;
2897+1425
2898+(b) a psychologist who is a designated intellectual disability professional who is not
2899+1426
2900+directly involved in the resident's treatment or diagnosis; and
2901+1427
2902+(c) another designated intellectual disability professional of the facility for persons with
2903+1428
2904+an intellectual disability, or a designee.
2905+1429
2906+(2) Based upon the court's finding, under Subsection [26B-6-608(13)] 26B-6-608(9), that
2907+1430
2908+the resident lacks the ability to engage in a rational decision-making process regarding
2909+1431
2910+the need for habilitation, rehabilitation, care, or treatment, as demonstrated by evidence
2911+1432
2912+of inability to weigh the possible costs and benefits of treatment, the committee may
2913+1433
2914+authorize involuntary treatment with medication if it determines that:
2915+1434
2916+(a) the proposed treatment is in the medical best interest of the resident, taking into
2917+1435
2918+account the possible side effects as well as the potential benefits of the medication;
2919+1436
2920+and
2921+1437
2922+(b) the proposed treatment is in accordance with prevailing standards of accepted
2923+1438
2924+medical practice.
2925+1439
2926+(3) In making the determination described in Subsection (2), the committee shall consider
2927+1440
2928+the resident's general history and present condition, the specific need for medication and
2929+1441
2930+its possible side effects, and any previous reaction to the same or comparable medication.
2931+1442
2932+(4) Any authorization of involuntary treatment under this section shall be periodically
2933+1443
2934+reviewed in accordance with rules promulgated by the division.
2935+1444
2936+Section 15. Section 63I-2-275 is amended to read:
2937+1445
2822938 63I-2-275 . Repeal dates: Title 75.
283-138
2939+1446
2842940 [Subsection 75-5-303(5)(d), regarding counsel for a person alleged to be incapacitated,
285-139
2941+1447
2862942 is repealed July 1, 2028] Reserved.
287-140
288-Section 3. Section 75-1-201 is amended to read:
289-141
2943+1448
2944+Section 16. Section 68-3-12.5 is amended to read:
2945+1449
2946+68-3-12.5 . Definitions for Utah Code.
2947+1450
2948+(1) The definitions listed in this section apply to the Utah Code, unless:
2949+1451
2950+(a) the definition is inconsistent with the manifest intent of the Legislature or repugnant
2951+1452
2952+to the context of the statute; or
2953+1453
2954+(b) a different definition is expressly provided for the respective title, chapter, part,
2955+1454
2956+section, or subsection.
2957+1455
2958+(2) "Adjudicative proceeding" means:
2959+1456
2960+(a) an action by a board, commission, department, officer, or other administrative unit of
2961+- 43 - 1st Sub. (Buff) H.B. 334 03-07 11:11
2962+1457
2963+the state that determines the legal rights, duties, privileges, immunities, or other legal
2964+1458
2965+interests of one or more identifiable persons, including an action to grant, deny,
2966+1459
2967+revoke, suspend, modify, annul, withdraw, or amend an authority, right, or license;
2968+1460
2969+and
2970+1461
2971+(b) judicial review of an action described in Subsection (2)(a).
2972+1462
2973+(3) "Administrator" includes "executor" when the subject matter justifies the use.
2974+1463
2975+(4) "Advisory board," "advisory commission," and "advisory council" mean a board,
2976+1464
2977+commission, committee, or council that:
2978+1465
2979+(a) is created by, and whose duties are provided by, statute or executive order;
2980+1466
2981+(b) performs its duties only under the supervision of another person as provided by
2982+1467
2983+statute; and
2984+1468
2985+(c) provides advice and makes recommendations to another person that makes policy for
2986+1469
2987+the benefit of the general public.
2988+1470
2989+(5) "Armed forces" means the United States Army, Navy, Air Force, Marine Corps, Space
2990+1471
2991+Force, and Coast Guard.
2992+1472
2993+(6) "County executive" means:
2994+1473
2995+(a) the county commission, in the county commission or expanded county commission
2996+1474
2997+form of government established under Title 17, Chapter 52a, Changing Forms of
2998+1475
2999+County Government;
3000+1476
3001+(b) the county executive, in the county executive-council optional form of government
3002+1477
3003+authorized by Section 17-52a-203; or
3004+1478
3005+(c) the county manager, in the council-manager optional form of government authorized
3006+1479
3007+by Section 17-52a-204.
3008+1480
3009+(7) "County legislative body" means:
3010+1481
3011+(a) the county commission, in the county commission or expanded county commission
3012+1482
3013+form of government established under Title 17, Chapter 52a, Changing Forms of
3014+1483
3015+County Government;
3016+1484
3017+(b) the county council, in the county executive-council optional form of government
3018+1485
3019+authorized by Section 17-52a-203; and
3020+1486
3021+(c) the county council, in the council-manager optional form of government authorized
3022+1487
3023+by Section 17-52a-204.
3024+1488
3025+(8) "Depose" means to make a written statement made under oath or affirmation.
3026+1489
3027+(9)(a) "Equal" means, with respect to biological sex, of the same value.
3028+1490
3029+(b) "Equal" does not mean, with respect to biological sex:
3030+- 44 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3031+1491
3032+(i) a characteristic of being the same or identical; or
3033+1492
3034+(ii) a requirement that biological sexes be ignored or co-mingled in every
3035+1493
3036+circumstance.
3037+1494
3038+(10) "Executor" includes "administrator" when the subject matter justifies the use.
3039+1495
3040+(11) "Father" means a parent who is of the male sex.
3041+1496
3042+(12) "Female" means the characteristic of an individual whose biological reproductive
3043+1497
3044+system is of the general type that functions in a way that could produce ova.
3045+1498
3046+(13) "Guardian" includes a person who:
3047+1499
3048+(a) qualifies as a guardian of a minor or incapacitated person pursuant to testamentary or
3049+1500
3050+court appointment; or
3051+1501
3052+(b) is appointed by a court to manage the estate of a minor or incapacitated person.
3053+1502
3054+(14) "Highway" includes:
3055+1503
3056+(a) a public bridge;
3057+1504
3058+(b) a county way;
3059+1505
3060+(c) a county road;
3061+1506
3062+(d) a common road; and
3063+1507
3064+(e) a state road.
3065+1508
3066+(15) "Intellectual disability" [means a significant, subaverage general intellectual
3067+1509
3068+functioning that:] means the same as that term is defined in the most recent edition of the
3069+1510
3070+Diagnostic and Statistical Manual of Mental Disorders published by the American
3071+1511
3072+Psychiatric Association.
3073+1512
3074+[(a) exists concurrently with deficits in adaptive behavior; and]
3075+1513
3076+[(b) is manifested during the developmental period as defined in the current edition of
3077+1514
3078+the Diagnostic and Statistical Manual of Mental Disorders, published by the
3079+1515
3080+American Psychiatric Association.]
3081+1516
3082+(16) "Intermediate care facility for people with an intellectual disability" means an [
3083+1517
3084+intermediate care facility for the mentally retarded, as defined in Title XIX of the Social
3085+1518
3086+Security Act] institution or distinct part thereof for people with an intellectual disability
3087+1519
3088+or related conditions, if the institution or distinct part thereof meets the requirements
3089+1520
3090+described in 42 U.S.C. Secs. 1396d(d)(1) through (3).
3091+1521
3092+(17) "Land" includes:
3093+1522
3094+(a) land;
3095+1523
3096+(b) a tenement;
3097+1524
3098+(c) a hereditament;
3099+- 45 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3100+1525
3101+(d) a water right;
3102+1526
3103+(e) a possessory right; and
3104+1527
3105+(f) a claim.
3106+1528
3107+(18) "Male" means the characteristic of an individual whose biological reproductive system
3108+1529
3109+is of the general type that functions to fertilize the ova of a female.
3110+1530
3111+(19) "Man" means an adult human male.
3112+1531
3113+(20) "Month" means a calendar month, unless otherwise expressed.
3114+1532
3115+(21) "Mother" means a parent who is of the female sex.
3116+1533
3117+(22) "Oath" includes "affirmation."
3118+1534
3119+(23) "Person" means:
3120+1535
3121+(a) an individual;
3122+1536
3123+(b) an association;
3124+1537
3125+(c) an institution;
3126+1538
3127+(d) a corporation;
3128+1539
3129+(e) a company;
3130+1540
3131+(f) a trust;
3132+1541
3133+(g) a limited liability company;
3134+1542
3135+(h) a partnership;
3136+1543
3137+(i) a political subdivision;
3138+1544
3139+(j) a government office, department, division, bureau, or other body of government; and
3140+1545
3141+(k) any other organization or entity.
3142+1546
3143+(24) "Personal property" includes:
3144+1547
3145+(a) money;
3146+1548
3147+(b) goods;
3148+1549
3149+(c) chattels;
3150+1550
3151+(d) effects;
3152+1551
3153+(e) evidences of a right in action;
3154+1552
3155+(f) a written instrument by which a pecuniary obligation, right, or title to property is
3156+1553
3157+created, acknowledged, transferred, increased, defeated, discharged, or diminished;
3158+1554
3159+and
3160+1555
3161+(g) a right or interest in an item described in Subsections (24)(a) through (f).
3162+1556
3163+(25) "Personal representative," "executor," and "administrator" include:
3164+1557
3165+(a) an executor;
3166+1558
3167+(b) an administrator;
3168+- 46 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3169+1559
3170+(c) a successor personal representative;
3171+1560
3172+(d) a special administrator; and
3173+1561
3174+(e) a person who performs substantially the same function as a person described in
3175+1562
3176+Subsections (25)(a) through (d) under the law governing the person's status.
3177+1563
3178+(26) "Policy board," "policy commission," or "policy council" means a board, commission,
3179+1564
3180+or council that:
3181+1565
3182+(a) is authorized to make policy for the benefit of the general public;
3183+1566
3184+(b) is created by, and whose duties are provided by, the constitution or statute; and
3185+1567
3186+(c) performs its duties according to its own rules without supervision other than under
3187+1568
3188+the general control of another person as provided by statute.
3189+1569
3190+(27) "Population" is shown by the most recent state or national census, unless expressly
3191+1570
3192+provided otherwise.
3193+1571
3194+(28) "Process" means a writ or summons issued in the course of a judicial proceeding.
3195+1572
3196+(29) "Property" includes both real and personal property.
3197+1573
3198+(30) "Real estate" or "real property" includes:
3199+1574
3200+(a) land;
3201+1575
3202+(b) a tenement;
3203+1576
3204+(c) a hereditament;
3205+1577
3206+(d) a water right;
3207+1578
3208+(e) a possessory right; and
3209+1579
3210+(f) a claim.
3211+1580
3212+(31) "Review board," "review commission," and "review council" mean a board,
3213+1581
3214+commission, committee, or council that:
3215+1582
3216+(a) is authorized to approve policy made for the benefit of the general public by another
3217+1583
3218+body or person;
3219+1584
3220+(b) is created by, and whose duties are provided by, statute; and
3221+1585
3222+(c) performs its duties according to its own rules without supervision other than under
3223+1586
3224+the general control of another person as provided by statute.
3225+1587
3226+(32) "Road" includes:
3227+1588
3228+(a) a public bridge;
3229+1589
3230+(b) a county way;
3231+1590
3232+(c) a county road;
3233+1591
3234+(d) a common road; and
3235+1592
3236+(e) a state road.
3237+- 47 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3238+1593
3239+(33) "Sex" means, in relation to an individual, the individual's biological sex, either male or
3240+1594
3241+female, at birth, according to distinct reproductive roles as manifested by:
3242+1595
3243+(a) sex and reproductive organ anatomy;
3244+1596
3245+(b) chromosomal makeup; and
3246+1597
3247+(c) endogenous hormone profiles.
3248+1598
3249+(34) "Signature" includes a name, mark, or sign written with the intent to authenticate an
3250+1599
3251+instrument or writing.
3252+1600
3253+(35) "State," when applied to the different parts of the United States, includes a state,
3254+1601
3255+district, or territory of the United States.
3256+1602
3257+(36) "Swear" includes "affirm."
3258+1603
3259+(37) "Testify" means to make an oral statement under oath or affirmation.
3260+1604
3261+(38) "Uniformed services" means:
3262+1605
3263+(a) the armed forces;
3264+1606
3265+(b) the commissioned corps of the National Oceanic and Atmospheric Administration;
3266+1607
3267+and
3268+1608
3269+(c) the commissioned corps of the United States Public Health Service.
3270+1609
3271+(39) "United States" includes each state, district, and territory of the United States of
3272+1610
3273+America.
3274+1611
3275+(40) "Utah Code" means the 1953 recodification of the Utah Code, as amended, unless the
3276+1612
3277+text expressly references a portion of the 1953 recodification of the Utah Code as it
3278+1613
3279+existed:
3280+1614
3281+(a) on the day on which the 1953 recodification of the Utah Code was enacted; or
3282+1615
3283+(b)(i) after the day described in Subsection (40)(a); and
3284+1616
3285+(ii) before the most recent amendment to the referenced portion of the 1953
3286+1617
3287+recodification of the Utah Code.
3288+1618
3289+(41) "Vessel," when used with reference to shipping, includes a steamboat, canal boat, and
3290+1619
3291+every structure adapted to be navigated from place to place.
3292+1620
3293+(42)(a) "Veteran" means an individual who:
3294+1621
3295+(i) has served in the United States Armed Forces for at least 180 days:
3296+1622
3297+(A) on active duty; or
3298+1623
3299+(B) in a reserve component, to include the National Guard; or
3300+1624
3301+(ii) has incurred an actual service-related injury or disability while in the United
3302+1625
3303+States Armed Forces regardless of whether the individual completed 180 days; and
3304+1626
3305+(iii) was separated or retired under conditions characterized as honorable or general.
3306+- 48 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3307+1627
3308+(b) This definition is not intended to confer eligibility for benefits.
3309+1628
3310+(43) "Will" includes a codicil.
3311+1629
3312+(44) "Woman" means an adult human female.
3313+1630
3314+(45) "Writ" means an order or precept in writing, issued in the name of:
3315+1631
3316+(a) the state;
3317+1632
3318+(b) a court; or
3319+1633
3320+(c) a judicial officer.
3321+1634
3322+(46) "Writing" includes:
3323+1635
3324+(a) printing;
3325+1636
3326+(b) handwriting; and
3327+1637
3328+(c) information stored in an electronic or other medium if the information is retrievable
3329+1638
3330+in a perceivable format.
3331+1639
3332+Section 17. Section 75-1-201 is amended to read:
3333+1640
2903334 75-1-201 . Title definitions.
291-142
3335+1641
2923336 As used in this title:
293-143
3337+1642
2943338 (1) "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney,
295-144
3339+1643
2963340 an individual authorized to make decisions concerning another's health care, and an
297-145
3341+1644
2983342 individual authorized to make decisions for another under a natural death act.
299-146
3343+1645
3003344 (2) "Application" means a written request to the registrar for an order of informal probate or
301-147
3345+1646
3023346 appointment under Chapter 3, Part 3, Informal Probate and Appointment Proceedings.
303-148
3347+1647
3043348 (3)(a) "Beneficiary," as it relates to trust beneficiaries, includes:
305-149
3349+1648
3063350 (i) a person who has any present or future interest, vested or contingent; and
307-150
3351+1649
3083352 (ii) the owner of an interest by assignment or other transfer.
309-151
3353+1650
3103354 (b) "Beneficiary," as it relates to a charitable trust, includes any person entitled to
311-152
3355+1651
3123356 enforce the trust.
313-153
3357+1652
3143358 (c) "Beneficiary," as it relates to a beneficiary of a beneficiary designation, means a
315-154
3359+1653
3163360 beneficiary of:
317-155
3361+1654
3183362 (i) an insurance or annuity policy;
319-156
3363+1655
3203364 (ii) an account with POD designation;
321-157
3365+1656
3223366 (iii) a security registered in beneficiary form (TOD);
323-158
3367+1657
3243368 (iv) a pension, profit-sharing, retirement, or similar benefit plan; or
325-159
3369+1658
3263370 (v) other nonprobate transfer at death.
327-160
3371+1659
3283372 (d) "Beneficiary," as it relates to a beneficiary designated in a governing instrument,
329-161
3373+1660
3303374 includes:
331-162
3375+- 49 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3376+1661
3323377 (i) a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary
333-163
3378+1662
3343379 designation, a donee, appointee, or taker in default of a power of appointment; and
335-- 5 - H.B. 334 Enrolled Copy
336-164
3380+1663
3373381 (ii) a person in whose favor a power of attorney or a power held in any individual,
338-165
3382+1664
3393383 fiduciary, or representative capacity is exercised.
340-166
3384+1665
3413385 (4) "Beneficiary designation" means a governing instrument naming a beneficiary of an
342-167
3386+1666
3433387 insurance or annuity policy, of an account with POD designation, of a security registered
344-168
3388+1667
3453389 in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit
346-169
3390+1668
3473391 plan, or other nonprobate transfer at death.
348-170
3392+1669
3493393 (5)(a) "Child" includes any individual entitled to take as a child under this title by
350-171
3394+1670
3513395 intestate succession from the parent whose relationship is involved.
352-172
3396+1671
3533397 (b) "Child" does not include an individual who is only a stepchild, a foster child, a
354-173
3398+1672
3553399 grandchild, or any more remote descendant.
356-174
3400+1673
3573401 (6)(a) "Claims," in respect to estates of decedents and protected persons, includes
358-175
3402+1674
3593403 liabilities of the decedent or protected person, whether arising in contract, in tort, or
360-176
3404+1675
3613405 otherwise, and liabilities of the estate which arise at or after the death of the decedent
362-177
3406+1676
3633407 or after the appointment of a conservator, including funeral expenses and expenses of
364-178
3408+1677
3653409 administration.
366-179
3410+1678
3673411 (b) "Claims" does not include estate or inheritance taxes, or demands or disputes
368-180
3412+1679
3693413 regarding title of a decedent or protected person to specific assets alleged to be
370-181
3414+1680
3713415 included in the estate.
372-182
3416+1681
3733417 (7) "Community property with a right of survivorship" means joint tenants with the right of
374-183
3418+1682
3753419 survivorship.
376-184
3420+1683
3773421 (8) "Conservator" means a person who is appointed by a court to manage the estate of a
378-185
3422+1684
3793423 protected person.
380-186
3424+1685
3813425 (9) "Court" means any of the courts of record in this state having jurisdiction in matters
382-187
3426+1686
3833427 relating to the affairs of decedents.
384-188
3428+1687
3853429 (10) "Descendant" means all of an individual's descendants of all generations, with the
386-189
3430+1688
3873431 relationship of parent and child at each generation being determined by the definition of
388-190
3432+1689
3893433 child and parent contained in this title.
390-191
3434+1690
3913435 (11) "Devise," when used as a noun, means a testamentary disposition of real or personal
392-192
3436+1691
3933437 property and, when used as a verb, means to dispose of real or personal property by will.
394-193
3438+1692
3953439 (12) "Devisee" means any person designated in a will to receive a devise. For the purposes
396-194
3440+1693
3973441 of Chapter 3, Probate of Wills and Administration, in the case of a devise to an existing
398-195
3442+1694
3993443 trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee,
400-196
3444+- 50 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3445+1695
4013446 and the beneficiaries are not devisees.
402-197
3447+1696
4033448 (13) "Disability" means cause for a protective order as described by Section 75-5-401.
404-- 6 - Enrolled Copy H.B. 334
405-198
3449+1697
4063450 (14) "Distributee" means any person who has received property of a decedent from his
407-199
3451+1698
4083452 personal representative other than as a creditor or purchaser. A testamentary trustee is a
409-200
3453+1699
4103454 distributee only to the extent of distributed assets or increment thereto remaining in his
411-201
3455+1700
4123456 hands. A beneficiary of a testamentary trust to whom the trustee has distributed
413-202
3457+1701
4143458 property received from a personal representative is a distributee of the personal
415-203
3459+1702
4163460 representative. For purposes of this provision, "testamentary trustee" includes a trustee
417-204
3461+1703
4183462 to whom assets are transferred by will, to the extent of the devised assets.
419-205
3463+1704
4203464 (15) "Estate" includes the property of the decedent, trust, or other person whose affairs are
421-206
3465+1705
4223466 subject to this title as originally constituted and as it exists from time to time during
423-207
3467+1706
4243468 administration.
425-208
3469+1707
4263470 (16) "Exempt property" means that property of a decedent's estate which is described in
427-209
3471+1708
4283472 Section 75-2-403.
429-210
3473+1709
4303474 (17) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
431-211
3475+1710
4323476 (18) "Foreign personal representative" means a personal representative of another
433-212
3477+1711
4343478 jurisdiction.
435-213
3479+1712
4363480 (19) "Formal proceedings" means proceedings conducted before a judge with notice to
437-214
3481+1713
4383482 interested persons.
439-215
3483+1714
4403484 (20) "General personal representative" does not include a special administrator.
441-216
3485+1715
4423486 (21) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account
443-217
3487+1716
4443488 with POD designation, security registered in beneficiary form (TOD), pension,
445-218
3489+1717
4463490 profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a
447-219
3491+1718
4483492 power of appointment or a power of attorney, a supported decision-making agreement,
449-220
3493+1719
4503494 or a dispositive, appointive, or nominative instrument of any similar type.
451-221
3495+1720
4523496 (22)(a) "Guardian" means a person who has qualified as a guardian of a minor or
453-222
3497+1721
4543498 incapacitated person pursuant to testamentary or court appointment, or by written
455-223
3499+1722
4563500 instrument as provided in Section 75-5-202.5.
457-224
3501+1723
4583502 (b) "Guardian" does not include a person who is merely a guardian ad litem.
459-225
3503+1724
4603504 (23) "Heirs," except as controlled by Section 75-2-711, means persons, including the
461-226
3505+1725
4623506 surviving spouse and state, who are entitled under the statutes of intestate succession to
463-227
3507+1726
4643508 the property of a decedent.
465-228
3509+1727
4663510 (24) "Incapacitated" means a judicial determination after proof by clear and convincing
467-229
3511+1728
4683512 evidence that an adult's ability to do the following is impaired to the extent that the
469-230
3513+- 51 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3514+1729
4703515 individual lacks the ability, even with appropriate technological assistance, to meet the
471-231
3516+1730
4723517 essential requirements for financial protection or physical health, safety, or self-care:
473-- 7 - H.B. 334 Enrolled Copy
474-232
3518+1731
4753519 (a) receive and evaluate information;
476-233
3520+1732
4773521 (b) make and communicate decisions; or
478-234
3522+1733
4793523 (c) provide for necessities such as food, shelter, clothing, health care, or safety.
480-235
3524+1734
4813525 (25) "Incapacity" means incapacitated.
482-236
3526+1735
4833527 (26) "Informal proceedings" mean a proceeding conducted without notice to interested
484-237
3528+1736
4853529 persons by an officer of the court acting as a registrar for probate of a will or
486-238
3530+1737
4873531 appointment of a personal representative.
488-239
3532+1738
4893533 (27)(a) "Interested person" includes heirs, devisees, children, spouses, creditors,
490-240
3534+1739
4913535 beneficiaries, and any others having a property right in or claim against a trust estate
492-241
3536+1740
4933537 or the estate of a decedent, ward, or protected person. The meaning of interested
494-242
3538+1741
4953539 person as it relates to particular persons may vary from time to time and is
496-243
3540+1742
4973541 determined according to the particular purposes of, and matter involved in, any
498-244
3542+1743
4993543 proceeding.
500-245
3544+1744
5013545 (b) "Interested person" includes persons having priority for appointment as personal
502-246
3546+1745
5033547 representative, other fiduciaries representing interested persons, a settlor of a trust, if
504-247
3548+1746
5053549 living, or the settlor's legal representative, if any, if the settlor is living but
506-248
3550+1747
5073551 incapacitated.
508-249
3552+1748
5093553 (28) "Issue" means a descendant of an individual.
510-250
3554+1749
5113555 (29)(a) "Joint tenants with the right of survivorship" includes coowners of property held
512-251
3556+1750
5133557 under circumstances that entitle one or more to the whole of the property on the death
514-252
3558+1751
5153559 of the other.
516-253
3560+1752
5173561 (b) "Joint tenants with the right of survivorship" does not include forms of coownership
518-254
3562+1753
5193563 registration in which the underlying ownership of each party is in proportion to that
520-255
3564+1754
5213565 party's contribution.
522-256
3566+1755
5233567 (30) "Lease" includes an oil, gas, or other mineral lease.
524-257
3568+1756
5253569 (31) "Letters" includes letters testamentary, letters of guardianship, letters of
526-258
3570+1757
5273571 administration, and letters of conservatorship.
528-259
3572+1758
5293573 (32) "Minor" means a person who is under 18 years old.
530-260
3574+1759
5313575 (33) "Minor protected person" means a minor for whom a conservator has been appointed
532-261
3576+1760
5333577 because of minority.
534-262
3578+1761
5353579 (34) "Minor ward" means a minor for whom a guardian has been appointed solely because
536-263
3580+1762
5373581 of minority.
538-264
3582+- 52 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3583+1763
5393584 (35) "Mortgage" means any conveyance, agreement, or arrangement in which property is
540-265
3585+1764
5413586 used as security.
542-- 8 - Enrolled Copy H.B. 334
543-266
3587+1765
5443588 (36) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at
545-267
3589+1766
5463590 the time of the decedent's death.
547-268
3591+1767
5483592 (37) "Organization" includes a corporation, limited liability company, business trust, estate,
549-269
3593+1768
5503594 trust, partnership, joint venture, association, government or governmental subdivision or
551-270
3595+1769
5523596 agency, or any other legal or commercial entity.
553-271
3597+1770
5543598 (38)(a) "Parent" includes any person entitled to take, or who would be entitled to take if
555-272
3599+1771
5563600 the child died without a will, as a parent under this title by intestate succession from
557-273
3601+1772
5583602 the child whose relationship is in question.
559-274
3603+1773
5603604 (b) "Parent" does not include any person who is only a stepparent, foster parent, or
561-275
3605+1774
5623606 grandparent.
563-276
3607+1775
5643608 (39) "Payor" means a trustee, insurer, business entity, employer, government, governmental
565-277
3609+1776
5663610 agency or subdivision, or any other person authorized or obligated by law or a governing
567-278
3611+1777
5683612 instrument to make payments.
569-279
3613+1778
5703614 (40) "Person" means an individual or an organization.
571-280
3615+1779
5723616 (41) "Personal representative" includes executor, administrator, successor personal
573-281
3617+1780
5743618 representative, special administrator, and persons who perform substantially the same
575-282
3619+1781
5763620 function under the law governing their status.
577-283
3621+1782
5783622 (42) "Petition" means a written request to the court for an order after notice.
579-284
3623+1783
5803624 (43) "Proceeding" includes action at law and suit in equity.
581-285
3625+1784
5823626 (44) "Property" includes both real and personal property or any interest therein and means
583-286
3627+1785
5843628 anything that may be the subject of ownership.
585-287
3629+1786
5863630 (45) "Protected person" means a person for whom a conservator has been appointed.
587-288
3631+1787
5883632 (46) "Protective proceeding" means a proceeding described in Section 75-5-401.
589-289
3633+1788
5903634 (47) "Record" means information that is inscribed on a tangible medium or that is stored in
591-290
3635+1789
5923636 an electronic or other medium and is retrievable in perceivable form.
593-291
3637+1790
5943638 (48) "Registrar" means the official of the court designated to perform the functions of
595-292
3639+1791
5963640 registrar as provided in Section 75-1-307.
597-293
3641+1792
5983642 (49) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of
599-294
3643+1793
6003644 indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease
601-295
3645+1794
6023646 or in payments out of production under such a title or lease, collateral trust certificate,
603-296
3647+1795
6043648 transferable share, voting trust certificate, and, in general, any interest or instrument
605-297
3649+1796
6063650 commonly known as a security, or any certificate of interest or participation, any
607-298
3651+- 53 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3652+1797
6083653 temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or
609-299
3654+1798
6103655 right to subscribe to or purchase, any of the foregoing.
611-- 9 - H.B. 334 Enrolled Copy
612-300
3656+1799
6133657 (50) "Settlement," in reference to a decedent's estate, includes the full process of
614-301
3658+1800
6153659 administration, distribution, and closing.
616-302
3660+1801
6173661 (51) "Sign" means, with present intent to authenticate or adopt a record other than a will:
618-303
3662+1802
6193663 (a) to execute or adopt a tangible symbol; or
620-304
3664+1803
6213665 (b) to attach to or logically associate with the record an electronic symbol, sound, or
622-305
3666+1804
6233667 process.
624-306
3668+1805
6253669 (52) "Special administrator" means a personal representative as described in Sections
626-307
3670+1806
6273671 75-3-614 through 75-3-618.
628-308
3672+1807
6293673 (53) "State" means a state of the United States, the District of Columbia, the
630-309
3674+1808
6313675 Commonwealth of Puerto Rico, any territory or insular possession subject to the
632-310
3676+1809
6333677 jurisdiction of the United States, or a Native American tribe or band recognized by
634-311
3678+1810
6353679 federal law or formally acknowledged by a state.
636-312
3680+1811
6373681 (54) "Successor personal representative" means a personal representative, other than a
638-313
3682+1812
6393683 special administrator, who is appointed to succeed a previously appointed personal
640-314
3684+1813
6413685 representative.
642-315
3686+1814
6433687 (55) "Successors" means persons, other than creditors, who are entitled to property of a
644-316
3688+1815
6453689 decedent under the decedent's will or this title.
646-317
3690+1816
6473691 (56) "Supervised administration" means the proceedings described in Chapter 3, Part 5,
648-318
3692+1817
6493693 Supervised Administration.
650-319
3694+1818
6513695 (57)(a) "Survive" means, except for Chapter 6, Part 3, Uniform Transfer on Death
652-320
3696+1819
6533697 Security Registration Act, that an individual has neither predeceased an event,
654-321
3698+1820
6553699 including the death of another individual, nor is considered to have predeceased an
656-322
3700+1821
6573701 event under Section 75-2-104 or 75-2-702.
658-323
3702+1822
6593703 (b) "Survive" includes its derivatives, such as "survives," "survived," "survivor," and
660-324
3704+1823
6613705 "surviving."
662-325
3706+1824
6633707 (58) "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
664-326
3708+1825
6653709 (59) "Testator" includes an individual of either sex.
666-327
3710+1826
6673711 (60)(a) "Trust" includes:
668-328
3712+1827
6693713 (i) a health savings account, as defined in Section 223of the Internal Revenue Code;
670-329
3714+1828
6713715 (ii) an express trust, private or charitable, with additions thereto, wherever and
672-330
3716+1829
6733717 however created; or
674-331
3718+1830
6753719 (iii) a trust created or determined by judgment or decree under which the trust is to be
676-332
3720+- 54 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3721+1831
6773722 administered in the manner of an express trust.
678-333
3723+1832
6793724 (b) "Trust" does not include:
680-- 10 - Enrolled Copy H.B. 334
681-334
3725+1833
6823726 (i) a constructive trust;
683-335
3727+1834
6843728 (ii) a resulting trust;
685-336
3729+1835
6863730 (iii) a conservatorship;
687-337
3731+1836
6883732 (iv) a personal representative;
689-338
3733+1837
6903734 (v) a trust account as defined in Chapter 6, Nonprobate Transfers;
691-339
3735+1838
6923736 (vi) a custodial arrangement under Title 75A, Chapter 8, Uniform Transfers To
693-340
3737+1839
6943738 Minors Act;
695-341
3739+1840
6963740 (vii) a business trust providing for certificates to be issued to beneficiaries;
697-342
3741+1841
6983742 (viii) a common trust fund;
699-343
3743+1842
7003744 (ix) a voting trust;
701-344
3745+1843
7023746 (x) a preneed funeral plan under Title 58, Chapter 9, Funeral Services Licensing Act;
703-345
3747+1844
7043748 (xi) a security arrangement;
705-346
3749+1845
7063750 (xii) a liquidation trust;
707-347
3751+1846
7083752 (xiii) a trust for the primary purpose of paying debts, dividends, interest, salaries,
709-348
3753+1847
7103754 wages, profits, pensions, or employee benefits of any kind; or
711-349
3755+1848
7123756 (xiv) any arrangement under which a person is nominee or escrowee for another.
713-350
3757+1849
7143758 (61) "Trustee" includes an original, additional, and successor trustee, and cotrustee, whether
715-351
3759+1850
7163760 or not appointed or confirmed by the court.
717-352
3761+1851
7183762 (62) "Ward" means a person for whom a guardian has been appointed.
719-353
3763+1852
7203764 (63) "Will" includes codicil and any testamentary instrument which merely appoints an
721-354
3765+1853
7223766 executor, revokes or revises another will, nominates a guardian, or expressly excludes or
723-355
3767+1854
7243768 limits the right of an individual or class to succeed to property of the decedent passing
725-356
3769+1855
7263770 by intestate succession.
727-357
728-Section 4. Section 75-5-301.5 is amended to read:
729-358
3771+1856
3772+Section 18. Section 75-5-301.5 is amended to read:
3773+1857
7303774 75-5-301.5 . Rights of a person alleged to be incapacitated -- Rights of an
731-359
3775+1858
7323776 incapacitated person.
733-360
3777+1859
7343778 (1) Except as otherwise provided by this chapter or any other law, a person alleged to be
735-361
3779+1860
7363780 incapacitated has the right to:
737-362
3781+1861
7383782 (a) be represented by counsel before a guardianship is imposed and have counsel
739-363
3783+1862
7403784 represent the person during the guardianship proceeding, except as provided in
741-364
3785+1863
7423786 Subsection 75-5-303(6)(e);
743-365
3787+1864
7443788 (b) receive a copy of all documents filed in a guardianship proceeding;
745-366
3789+- 55 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3790+1865
7463791 (c) have a relative, physician, physician assistant, or any interested person speak about
747-367
3792+1866
7483793 or raise any issue of concern on behalf of the person during the guardianship
749-- 11 - H.B. 334 Enrolled Copy
750-368
3794+1867
7513795 proceeding;
752-369
3796+1868
7533797 (d) receive information about guardianships from the court; and
754-370
3798+1869
7553799 (e) be treated with respect and dignity.
756-371
3800+1870
7573801 (2) For a guardianship granted before May 7, 2025, the rights of an incapacitated person for
758-372
3802+1871
7593803 whom a guardian is appointed are in accordance with the statutory provisions in effect as
760-373
3804+1872
7613805 of the date that the guardianship was granted, including, as applicable, Subsection
762-374
3806+1873
7633807 75-5-312(1)(c)(i) unless expressly limited by a court in the order of appointment.
764-375
3808+1874
7653809 (3) Except as otherwise provided by this chapter or any other law, for a guardianship
766-376
3810+1875
7673811 granted on or after May 7, 2025, an incapacitated person for whom a guardian is
768-377
3812+1876
7693813 appointed has the right to:
770-378
3814+1877
7713815 (a) have counsel represent the incapacitated person at any time after the guardian is
772-379
3816+1878
7733817 appointed;
774-380
3818+1879
7753819 (b) have a relative, physician, physician assistant, or any interested person speak about
776-381
3820+1880
7773821 or raise any issue of concern on behalf of the person in any court hearing about the
778-382
3822+1881
7793823 guardianship;
780-383
3824+1882
7813825 (c) receive a copy of all documents filed in court regarding the guardianship;
782-384
3826+1883
7833827 (d) receive information about guardianships from the court;
784-385
3828+1884
7853829 (e) ask questions and express concerns or complaints about a guardian and the actions of
786-386
3830+1885
7873831 a guardian to the court;
788-387
3832+1886
7893833 [(f) participate in developing an individualized plan for the incapacitated person's care,
790-388
3834+1887
7913835 including:]
792-389
3836+1888
7933837 [(i) managing the incapacitated person's assets and property;]
794-390
3838+1889
7953839 [(ii) determining the incapacitated person's residence; and]
796-391
3840+1890
7973841 [(iii) determining the services to be received by the incapacitated person;]
798-392
3842+1891
7993843 [(g) be given consideration in regards to the incapacitated person's current and
800-393
3844+1892
8013845 previously stated desires, preferences for health care and medical treatment, and
802-394
3846+1893
8033847 religious and moral beliefs;]
804-395
3848+1894
8053849 [(h) remain as independent as possible, including giving deference to the incapacitated
806-396
3850+1895
8073851 person's preference for the incapacitated person's residence and standard of living:]
808-397
3852+1896
8093853 [(i) as expressed or demonstrated before a determination of capacity was made; or]
810-398
3854+1897
8113855 [(ii) as currently expressed or demonstrated by the incapacitated person if the
812-399
3856+1898
8133857 preference is reasonable under the circumstances;]
814-400
3858+- 56 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3859+1899
8153860 [(i)] (f) be granted the greatest degree of freedom possible that is consistent with the
816-401
3861+1900
8173862 reasons for the guardianship;
818-- 12 - Enrolled Copy H.B. 334
819-402
3863+1901
8203864 [(j) be able to exercise control over all aspects of the incapacitated person's life that are
821-403
3865+1902
8223866 not granted to the guardian in the order of appointment;]
823-404
3867+1903
8243868 [(k) engage in any activity that the court has not expressly reserved for the guardian,
825-405
3869+1904
8263870 including marriage or domestic partnership, traveling, working, or having a driver
827-406
3871+1905
8283872 license;]
829-407
3873+1906
8303874 [(l)] (g) be treated with respect and dignity;
831-408
3875+1907
8323876 [(m)] (h) be treated fairly by the incapacitated person's guardian;
833-409
3877+1908
8343878 [(n) maintain privacy and confidentiality in personal matters;]
835-410
3879+1909
8363880 [(o) receive telephone calls and personal mail and associate with relatives and
837-411
3881+1910
8383882 acquaintances unless the guardian and the court determine that the association should
839-412
3883+1911
8403884 be restricted or prohibited in accordance with Section 75-5-312.5;]
841-413
3885+1912
8423886 [(p) receive timely, effective, and appropriate health care and medical treatment that
843-414
3887+1913
8443888 does not violate the incapacitated person's rights;]
845-415
3889+1914
8463890 [(q)] (i) have all services provided by a guardian at a reasonable rate of compensation;
847-416
3891+1915
8483892 [(r)] (j) have a court review any request for payment by a guardian to avoid excessive or
849-417
3893+1916
8503894 unnecessary fees or duplicative billing;
851-418
3895+1917
8523896 [(s)] (k) receive prudent financial management of the incapacitated person's property;
853-419
3897+1918
8543898 [(t)] (l) subject to Subsections 75-5-312(4)(h) and 75-5-417(4), and subject to the
855-420
3899+1919
8563900 exception provided in Subsection 75-5-312(7)(d), receive a copy of an accounting
857-421
3901+1920
8583902 report regarding the incapacitated person's estate that is submitted to the court by the
859-422
3903+1921
8603904 guardian under Section 75-5-312 or the conservator under Section 75-5-417 if a
861-423
3905+1922
8623906 conservator is appointed for the incapacitated person; and
863-424
3907+1923
8643908 [(u) receive and control the incapacitated person's salary;]
865-425
3909+1924
8663910 [(v) maintain a bank account and manage the incapacitated person's personal money; and]
867-426
3911+1925
8683912 [(w)] (m) ask the court to:
869-427
3913+1926
8703914 (i) review the management activity of a guardian if a dispute cannot be resolved
871-428
3915+1927
8723916 regarding the guardian's management;
873-429
3917+1928
8743918 (ii) continue to review the need for a guardianship or to modify or terminate a
875-430
3919+1929
8763920 guardianship pursuant to Section 75-5-306 and Section 75-5-307; and
877-431
3921+1930
8783922 (iii) enter an order restoring the incapacitated person's capacity at the earliest possible
879-432
3923+1931
8803924 time pursuant to Section 75-5-306 and Section 75-5-307.
881-433
3925+1932
8823926 [(3)] (4) The court may not waive, suspend, or limit a right described in Subsection (3).
883-434
3927+- 57 - 1st Sub. (Buff) H.B. 334 03-07 11:11
3928+1933
8843929 (5) Except as otherwise provided by this chapter or any other law, and subject to Subsection
885-435
3930+1934
8863931 (6), for a guardianship granted on or after May 7, 2025, an incapacitated person for
887-- 13 - H.B. 334 Enrolled Copy
888-436
3932+1935
8893933 whom a guardian is appointed has the right, to the extent practicable, to:
890-437
3934+1936
8913935 (a) participate in developing an individualized plan for the incapacitated person's care,
892-438
3936+1937
8933937 including:
894-439
3938+1938
8953939 (i) managing the incapacitated person's assets and property;
896-440
3940+1939
8973941 (ii) determining the incapacitated person's residence; and
898-441
3942+1940
8993943 (iii) determining the services to be received by the incapacitated person;
900-442
3944+1941
9013945 (b) be given consideration in regards to the incapacitated person's current and previously
902-443
3946+1942
9033947 stated desires, preferences for health care and medical treatment, and religious and
904-444
3948+1943
9053949 moral beliefs;
906-445
3950+1944
9073951 (c) remain as independent as possible, including giving deference to the incapacitated
908-446
3952+1945
9093953 person's preference for the incapacitated person's residence and standard of living:
910-447
3954+1946
9113955 (i) as expressed or demonstrated before a determination of capacity was made; or
912-448
3956+1947
9133957 (ii) as currently expressed or demonstrated by the incapacitated person if the
914-449
3958+1948
9153959 preference is reasonable under the circumstances;
916-450
3960+1949
9173961 (d) be able to exercise control over all aspects of the incapacitated person's life that are
918-451
3962+1950
9193963 not granted to the guardian in an order of appointment of a limited guardianship;
920-452
3964+1951
9213965 (e) maintain privacy and confidentiality in personal matters, to the extent that privacy
922-453
3966+1952
9233967 and confidentiality does not inhibit the ability of the incapacitated person's guardian
924-454
3968+1953
9253969 to fulfill the guardian's responsibilities or perform the guardian's duties;
926-455
3970+1954
9273971 (f) receive telephone calls and personal mail and associate with relatives and
928-456
3972+1955
9293973 acquaintances unless the guardian and the court determine that the association should
930-457
3974+1956
9313975 be restricted or prohibited in accordance with Section 75-5-312.5;
932-458
3976+1957
9333977 (g) receive timely, effective, and appropriate health care and medical treatment that does
934-459
3978+1958
9353979 not violate the incapacitated person's rights;
936-460
3980+1959
9373981 (h) receive an allowance or control a reasonable amount of the incapacitated person's
938-461
3982+1960
9393983 earnings or other income; and
940-462
3984+1961
9413985 (i) collaborate with the incapacitated person's guardian to use appropriate financial tools
942-463
3986+1962
9433987 to maintain a bank account and manage the incapacitated person's personal money.
944-464
3988+1963
9453989 (6) The court may waive or limit a right described in Subsection (5) if:
946-465
3990+1964
9473991 (a) an interested party requests the waiver or limitation; and
948-466
3992+1965
9493993 (b) the court finds, by clear and convincing evidence, that there is a compelling reason
950-467
3994+1966
9513995 for the waiver or limitation.
952-468
3996+- 58 - 03-07 11:11 1st Sub. (Buff) H.B. 334
3997+1967
9533998 (7)(a) The rights of an incapacitated person under this section do not abrogate any
954-469
3999+1968
9554000 remedy provided by law.
956-- 14 - Enrolled Copy H.B. 334
957-470
4001+1969
9584002 (b) This section may not be interpreted in a way that would permit or justify any action
959-471
4003+1970
9604004 that violates a provision in Sections 76-5-111 through 76-5-111.4 or Section
961-472
4005+1971
9624006 76-5-112.5.
963-473
4007+1972
9644008 [(4)] (8) Any right described in this section may be:
965-474
4009+1973
9664010 (a) addressed in a guardianship proceeding; or
967-475
4011+1974
9684012 (b) enforced through a private cause of action.
969-476
970-Section 5. Section 75-5-303 is amended to read:
971-477
4013+1975
4014+Section 19. Section 75-5-303 is amended to read:
4015+1976
9724016 75-5-303 . Procedure for court appointment of a guardian of an incapacitated
973-478
4017+1977
9744018 person.
975-479
4019+1978
9764020 (1) An allegedly incapacitated person or any person interested in [the] an allegedly
977-480
4021+1979
9784022 incapacitated person's welfare may petition for a finding of incapacity and appointment
979-481
4023+1980
9804024 of a guardian.
981-482
4025+1981
9824026 (2)(a) Upon the filing of a petition, the court shall set a date for hearing on the issues of
983-483
4027+1982
9844028 incapacity.
985-484
4029+1983
9864030 (b) Unless the allegedly incapacitated person has counsel of the person's own choice, the
987-485
4031+1984
9884032 court shall appoint an attorney to represent the person in the proceeding the cost of
989-486
4033+1985
9904034 which shall be paid by the allegedly incapacitated person[ alleged to be incapacitated],
991-487
4035+1986
9924036 unless the allegedly incapacitated person and the allegedly incapacitated person's
993-488
4037+1987
9944038 parents are indigent.
995-489
4039+1988
9964040 (c) If the court determines that the petition is without merit, the attorney fees and court
997-490
4041+1989
9984042 costs shall be paid by the person filing the petition.
999-491
4043+1990
10004044 (d) If the court appoints the petitioner or the petitioner's nominee as guardian of the
1001-492
4045+1991
10024046 incapacitated person, regardless of whether the nominee is specified in the moving
1003-493
4047+1992
10044048 petition or nominated during the proceedings, the petitioner shall be entitled to
1005-494
4049+1993
10064050 receive from the incapacitated person reasonable attorney fees and court costs
1007-495
4051+1994
10084052 incurred in bringing, prosecuting, or defending the petition.
1009-496
4053+1995
10104054 (3) The legal representation of [the] an allegedly incapacitated person by an attorney shall
1011-497
4055+1996
10124056 terminate upon the appointment of a guardian, unless:
1013-498
4057+1997
10144058 (a) there are separate conservatorship proceedings still pending before the court
1015-499
4059+1998
10164060 subsequent to the appointment of a guardian;
1017-500
4061+1999
10184062 (b) there is a timely filed appeal of the appointment of the guardian or the determination
1019-501
4063+2000
10204064 of incapacity; or
1021-502
4065+- 59 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4066+2001
10224067 (c) upon an express finding of good cause, the court orders otherwise.
1023-503
1024-[(4) The person alleged to be incapacitated may be examined by a physician or physician
1025-- 15 - H.B. 334 Enrolled Copy
1026-504
4068+2002
4069+(4)(a) The court may appoint a health care provider, as that term is defined in Section
4070+2003
4071+75A-3-101, to examine the functional capabilities and limitations of the allegedly
4072+2004
4073+incapacitated person.
4074+2005
4075+(b) An appointed health care provider shall submit to the court a report assessing, within
4076+2006
4077+the scope of the health care provider's license and experience, the functional
4078+2007
4079+capabilities and limitations of the allegedly incapacitated person to, with or without
4080+2008
4081+appropriate technological assistance:
4082+2009
4083+(i) receive and evaluate information;
4084+2010
4085+(ii) make and communicate decisions; and
4086+2011
4087+(iii) provide for necessities such as food, shelter, clothing, health care, or safety.
4088+2012
4089+(5) [The person alleged to be incapacitated may be examined by a physician or physician
4090+2013
10274091 assistant appointed by the court who shall submit a report in writing to the court and
1028-505
4092+2014
10294093 may be interviewed by a visitor sent by the court. The visitor also may]
1030-506
1031-(4)(a) The court may appoint a health care provider, as that term is defined in Section
1032-507
1033-75A-3-101, to examine the functional capabilities and limitations of the allegedly
1034-508
1035-incapacitated person.
1036-509
1037-(b) An appointed health care provider shall submit to the court a report assessing, within
1038-510
1039-the scope of the health care provider's license and experience, the functional
1040-511
1041-capabilities and limitations of the allegedly incapacitated person to, with or without
1042-512
1043-appropriate technological assistance:
1044-513
1045-(i) receive and evaluate information;
1046-514
1047-(ii) make and communicate decisions; and
1048-515
1049-(iii) provide for necessities such as food, shelter, clothing, health care, or safety.
1050-516
1051-(5)(a) The court may appoint a court visitor to:
1052-517
4094+2015
4095+(a) The court may appoint a court visitor to:
4096+2016
10534097 (i) interview the person seeking appointment as guardian[,] ;
1054-518
4098+2017
10554099 (ii) visit the present place of abode of the allegedly incapacitated person[ alleged to
1056-519
4100+2018
10574101 be incapacitated] and the place it is proposed that the allegedly incapacitated
1058-520
4102+2019
10594103 person will be detained or reside if the requested appointment is made[,] ; or
1060-521
4104+2020
10614105 (iii) conduct other investigations or observations as directed by the court[, and submit
1062-522
4106+2021
10634107 a report in writing to the court].
1064-523
4108+2022
10654109 (b) The court visitor shall submit a written report to the court.
1066-524
4110+2023
10674111 [(5)] (6)(a) The allegedly incapacitated person[ alleged to be incapacitated] shall be
1068-525
4112+2024
10694113 present at the hearing [in person ]and see or hear all evidence bearing upon the
1070-526
4114+2025
10714115 person's condition.
1072-527
4116+2026
10734117 (b) [If the person seeking the guardianship requests a waiver of presence of the person
1074-528
4118+2027
10754119 alleged to be incapacitated,] The court may only waive the presence of the allegedly
1076-529
4120+2028
10774121 incapacitated person if all of the following criteria are met:
1078-530
4122+2029
10794123 (i) the person is represented by an attorney;
1080-531
4124+2030
10814125 (ii) [ the court shall order an investigation by ]a court visitor is appointed to
1082-532
4126+2031
10834127 investigate, the costs of which shall be paid by the person seeking the guardianship[.]
1084-533
4128+2032
10854129 ; and
1086-534
4130+2033
10874131 (iii) following the investigation, the court finds that there is no reasonable
1088-535
4132+2034
10894133 accommodation that will enable the allegedly incapacitated person to be present
1090-536
4134+- 60 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4135+2035
10914136 for or participate in the hearing.
1092-537
4137+2036
10934138 [(b)] (c) [The investigation by a] A court visitor is not required to investigate under
1094-- 16 - Enrolled Copy H.B. 334
1095-538
4139+2037
10964140 Subsection (6)(b)(ii) if there is clear and convincing evidence from a physician that
1097-539
4141+2038
10984142 the person alleged to be incapacitated [has:] is experiencing a state of extended
1099-540
4143+2039
11004144 comatosis that is likely to persist through the time of the hearing.
1101-541
4145+2040
11024146 [(i) fourth stage Alzheimer's Disease;]
1103-542
4147+2041
11044148 [(ii) extended comatosis; or]
1105-543
4149+2042
11064150 [(iii)(A) an intellectual disability; and]
1107-544
4151+2043
11084152 [(B) an intelligence quotient score under 25.]
1109-545
4153+2044
11104154 [(c)] (d) [The] In addition to the rights described in Section 75-5-301.5, an allegedly
1111-546
4155+2045
11124156 incapacitated person[ alleged to be incapacitated] is entitled to be represented by
1113-547
4157+2046
11144158 counsel, to present evidence, to cross-examine witnesses, including the
1115-548
4159+2047
11164160 court-appointed [physician] health care provider and the court visitor, and to trial by
1117-549
4161+2048
11184162 jury. The issue may be determined at a closed hearing without a jury if the allegedly
1119-550
4163+2049
11204164 incapacitated person[ alleged to be incapacitated] or the person's counsel so requests.
1121-551
4165+2050
11224166 [(d)] (e) Counsel for the allegedly incapacitated person[ alleged to be incapacitated, as
1123-552
4167+2051
11244168 defined in Subsection 75-1-201(22),] is not required if all of the following criteria are
1125-553
4169+2052
11264170 met:
1127-554
4171+2053
11284172 (i) the allegedly incapacitated person is the biological or adopted child of the
1129-555
4173+2054
11304174 petitioner;
1131-556
4175+2055
11324176 (ii) the value of the allegedly incapacitated person's entire estate does not exceed
1133-557
4177+2056
11344178 $20,000 as established by an affidavit of the petitioner in accordance with Section
1135-558
4179+2057
11364180 75-3-1201;
1137-559
4181+2058
11384182 (iii) the allegedly incapacitated person's appearance at the hearing has not been
1139-560
4183+2059
11404184 waived and the person appears in court with the petitioner, as described in
1141-561
4185+2060
11424186 Subsection (6)(a);
1143-562
4187+2061
11444188 (iv) the allegedly incapacitated person is given the opportunity to communicate, to
1145-563
4189+2062
11464190 the extent possible, the person's acceptance of or objection to the appointment of [
1147-564
4191+2063
11484192 petitioner] the proposed guardian, including the opportunity to communicate that
1149-565
4193+2064
11504194 acceptance or objection to the court and, as applicable, to the person's supporters,
1151-566
4195+2065
11524196 health care providers, and attorney;
1153-567
4197+2066
11544198 (v) no attorney from the state court's list of attorneys who have volunteered to
1155-568
4199+2067
11564200 represent respondents in guardianship proceedings is able to provide counsel to
1157-569
4201+2068
11584202 the person within 60 days of the date of the [appointment] hearing, as described in
1159-570
4203+- 61 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4204+2069
11604205 Subsection (2)(b);
1161-571
4206+2070
11624207 (vi) the court is satisfied that counsel is not necessary [in order ]to protect the
1163-- 17 - H.B. 334 Enrolled Copy
1164-572
4208+2071
11654209 interests of the allegedly incapacitated person; and
1166-573
4210+2072
11674211 (vii) the court appoints a court visitor and receives a report from the court visitor
1168-574
4212+2073
11694213 under Subsection [(4)] (5).
1170-575
1171-Section 6. Section 75-5-312 is amended to read:
1172-576
4214+2074
4215+Section 20. Section 75-5-312 is amended to read:
4216+2075
11734217 75-5-312 . General powers and duties of guardian -- Penalties.
1174-577
4218+2076
11754219 (1)(a) A guardian of an incapacitated person shall diligently and in good faith carry out
1176-578
4220+2077
11774221 the specific duties, powers, and rights that the guardian is granted:
1178-579
4222+2078
11794223 (i) in an order of appointment by a court under Section 75-5-304; and
1180-580
4224+2079
11814225 (ii) under this section.
1182-581
4226+2080
11834227 (b) A court may, in the order of appointment, place specific limitations on the guardian's
1184-582
4228+2081
11854229 power, duties, and rights.
1186-583
4230+2082
11874231 (c)(i) Except as provided in this Subsection (1), a guardian has the same powers,
1188-584
4232+2083
11894233 rights, and duties respecting the ward that a parent has respecting the parent's
1190-585
4234+2084
11914235 unemancipated minor.
1192-586
4236+2085
11934237 (ii) A guardian is not liable to a third person for acts of the guardian's ward solely by
1194-587
4238+2086
11954239 reason of the relationship described in Subsection (1)(c)(i).
1196-588
4240+2087
11974241 (d) In carrying out duties, powers, and rights that a guardian is granted, the guardian
1198-589
4242+2088
11994243 shall encourage the ward, to the extent practicable, to participate in decisions,
1200-590
4244+2089
12014245 exercise self-determination, act on the ward's own behalf, and develop or regain the
1202-591
4246+2090
12034247 capacity to manage the ward's personal affairs.
1204-592
4248+2091
12054249 (e) To the extent known, a guardian, in making decisions about the ward, shall consider
1206-593
4250+2092
12074251 the expressed desires, preferences, and personal values of the ward.
1208-594
4252+2093
12094253 (2) Except as modified by an order of appointment under Section 75-5-304, a guardian has
1210-595
4254+2094
12114255 the following duties and powers:
1212-596
4256+2095
12134257 (a) to the extent that it is consistent with the terms of any order by a court relating to
1214-597
4258+2096
12154259 detention or commitment of the ward, a guardian is entitled to custody of the person
1216-598
4260+2097
12174261 of the ward and may establish the ward's place of residence within, or outside of, this
1218-599
4262+2098
12194263 state, except that the guardian must give consideration to the ward's preference for
1220-600
4264+2099
12214265 the ward's place of residence in accordance with Section 75-5-301.5;
1222-601
4266+2100
12234267 (b) if a guardian is entitled to custody of the ward, the guardian shall provide for the
1224-602
4268+2101
12254269 care, comfort, and maintenance of the ward and, whenever appropriate, arrange for
1226-603
4270+2102
12274271 the ward's training and education;
1228-604
4272+- 62 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4273+2103
12294274 (c) without regard to custodial rights of the ward's person, a guardian shall take
1230-605
4275+2104
12314276 reasonable care of the ward's clothing, furniture, vehicles, and other personal effects
1232-- 18 - Enrolled Copy H.B. 334
1233-606
4277+2105
12344278 and commence protective proceedings if other property of the ward is in need of
1235-607
4279+2106
12364280 protection;
1237-608
4281+2107
12384282 (d) a guardian may give the consent or approval that may be necessary to enable the
1239-609
4283+2108
12404284 ward to receive medical or other professional care, counsel, treatment, or service,
1241-610
4285+2109
12424286 except that the guardian must:
1243-611
4287+2110
12444288 (i) give consideration to the ward's current and previously stated desires for health
1245-612
4289+2111
12464290 care and medical treatment in accordance with Section 75-5-301.5; and
1247-613
4291+2112
12484292 (ii) respect the ward's right to receive timely, effective, and appropriate health care in
1249-614
4293+2113
12504294 accordance with Section 75-5-301.5;
1251-615
4295+2114
12524296 (e) a guardian is required to notify any interested person named in the order of
1253-616
4297+2115
12544298 appointment under Subsection 75-5-304(4) of any significant health care or treatment
1255-617
4299+2116
12564300 received by the ward;
1257-618
4301+2117
12584302 (f) a guardian is required to immediately notify persons who request notification and are
1259-619
4303+2118
12604304 not restricted in associating with the ward in accordance with Section 75-5-312.5 of:
1261-620
4305+2119
12624306 (i) the ward's admission to a hospital for three or more days or to a hospice program;
1263-621
4307+2120
12644308 (ii) the ward's death; or
1265-622
4309+2121
12664310 (iii) the arrangements for the disposition of the ward's remains;
1267-623
4311+2122
12684312 (g) a guardian is required to immediately notify all interested persons if the guardian
1269-624
4313+2123
12704314 reasonably believes that the ward's death is likely to occur within the next 10 days,
1271-625
4315+2124
12724316 based on:
1273-626
4317+2125
12744318 (i) the guardian's own observations; or
1275-627
4319+2126
12764320 (ii) information from the ward's physician or other medical care providers;
1277-628
4321+2127
12784322 (h) a guardian is required to:
1279-629
4323+2128
12804324 (i) unless emergency conditions exist:
1281-630
4325+2129
12824326 (A) file with the court a notice of the guardian's intent to move the ward; and
1283-631
4327+2130
12844328 (B) serve the notice on all interested persons at least 10 days before the day on
1285-632
4329+2131
12864330 which the guardian moves the ward; or
1287-633
4331+2132
12884332 (ii) take reasonable steps to:
1289-634
4333+2133
12904334 (A) notify all interested persons of the guardian's intent to move the ward; and
1291-635
4335+2134
12924336 (B) file the notice of the move with the court as soon as practicable following the
1293-636
4337+2135
12944338 earlier of the move or the date when the guardian's intention to move the ward
1295-637
4339+2136
12964340 is made known to the ward, the ward's care giver, or any other third party;
1297-638
4341+- 63 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4342+2137
12984343 (i) except as otherwise provided by Section 75-5-312.5, a guardian may not restrict or
1299-639
4344+2138
13004345 prohibit a ward's association, as defined in Section 75-5-312.5, with family, relatives,
1301-- 19 - H.B. 334 Enrolled Copy
1302-640
4346+2139
13034347 or friends;
1304-641
4348+2140
13054349 (j) if no conservator for the estate of the ward has been appointed, a guardian may:
1306-642
4350+2141
13074351 (i) institute proceedings to compel any person under a duty to support the ward or to
1308-643
4352+2142
13094353 pay sums for the welfare of the ward to perform that duty;
1310-644
4354+2143
13114355 (ii) compel the production of the ward's estate documents, including the ward's will,
1312-645
4356+2144
13134357 trust, power of attorney, and any advance health care directive; and
1314-646
4358+2145
13154359 (iii) receive money and tangible property deliverable to the ward and apply the
1316-647
4360+2146
13174361 money and property for support, care, and education of the ward, except that:
1318-648
4362+2147
13194363 (A) the guardian may not use funds from the ward's estate for room and board that
1320-649
4364+2148
13214365 the guardian or the guardian's spouse, parent, or child have furnished the ward
1322-650
4366+2149
13234367 unless a charge for the service is approved by order of the court made upon
1324-651
4368+2150
13254369 notice to at least one adult relative in the nearest degree of kinship to the ward
1326-652
4370+2151
13274371 in which there is an adult; and
1328-653
4372+2152
13294373 (B) the guardian shall exercise care to conserve any excess for the ward's needs;
1330-654
4374+2153
13314375 (k) if no conservator for the estate of the ward has been appointed:
1332-655
4376+2154
13334377 (i) for all estates in excess of $50,000 excluding the residence owned by the ward, a
1334-656
4378+2155
13354379 guardian shall send a report with a full accounting to the court on an annual basis;
1336-657
4380+2156
13374381 or
1338-658
4382+2157
13394383 (ii) for estates less than $50,000 excluding the residence owned by the ward, a
1340-659
4384+2158
13414385 guardian shall fill out an informal annual report and mail the report to the court;
1342-660
4386+2159
13434387 (l) a guardian shall provide an annual accounting of the status of the ward, including a
1344-661
4388+2160
13454389 report of the physical and mental condition of the ward, the ward's estate that has
1346-662
4390+2161
13474391 been subject to the guardian's possession, the ward's place of residence and others
1348-663
4392+2162
13494393 living in the same household, to the court in the petition or the annual report as
1350-664
4394+2163
13514395 required under Subsection (2)(k); and
1352-665
4396+2164
13534397 (m) a guardian shall comply with standards set by the National Guardianship
1354-666
4398+2165
13554399 Association for guardians to the extent that the standards are applicable to the
1356-667
4400+2166
13574401 guardian.
1358-668
4402+2167
13594403 (3) For the purposes of Subsections (2)(f), (g), and (h), an interested person is a person
1360-669
4404+2168
13614405 required to receive notice in guardianship proceedings as described in Section 75-5-309.
1362-670
4406+2169
13634407 (4)(a) An accounting report under Subsection (2)(k) shall include a statement regarding:
1364-671
4408+2170
13654409 (i) all assets at the beginning and end of the reporting year;
1366-672
4410+- 64 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4411+2171
13674412 (ii) any income received during the year;
1368-673
4413+2172
13694414 (iii) any disbursements for the support of the ward;
1370-- 20 - Enrolled Copy H.B. 334
1371-674
4415+2173
13724416 (iv) any investments or trusts that are held for the ward's benefit;
1373-675
4417+2174
13744418 (v) any expenditures or fees charged to the ward's estate; and
1375-676
4419+2175
13764420 (vi) any other expenses incurred by the ward's estate.
1377-677
4421+2176
13784422 (b) The court may require additional information in an accounting report under
1379-678
4423+2177
13804424 Subsection (2)(k).
1381-679
4425+2178
13824426 (c) The Judicial Council shall approve forms for the accounting reports described in
1383-680
4427+2179
13844428 Subsection (2)(k).
1385-681
4429+2180
13864430 (d) An annual accounting report under Subsection (2)(k) shall be examined and
1387-682
4431+2181
13884432 approved by the court.
1389-683
4433+2182
13904434 (e) If the ward's income is limited to a federal or state program requiring an annual
1391-684
4435+2183
13924436 accounting report, a copy of that report may be submitted to the court in lieu of the
1393-685
4437+2184
13944438 required annual accounting report under Subsection (2)(k).
1395-686
4439+2185
13964440 (f)(i) A corporate fiduciary is not required to petition the court, but shall submit the
1397-687
4441+2186
13984442 corporate fiduciary's internal report annually to the court.
1399-688
4443+2187
14004444 (ii) The report under Subsection (4)(f)(i) shall be examined and approved by the court.
1401-689
4445+2188
14024446 (g) If a fee is paid for an accounting of an estate, a fee may not be charged for an
1403-690
4447+2189
14044448 accounting of the status of a ward under Subsection (2)(l).
1405-691
4449+2190
14064450 (h) Upon a motion and after a hearing, the court may alter the frequency of, or the
1407-692
4451+2191
14084452 information included in, an accounting report provided to a ward in accordance with
1409-693
4453+2192
14104454 Subsection [75-5-301.5(2)(t)] 75-5-301.5(3)(l).
1411-694
4455+2193
14124456 (5) If a conservator has been appointed for a ward:
1413-695
4457+2194
14144458 (a) all of the ward's estate received by the guardian in excess of those funds expended to
1415-696
4459+2195
14164460 meet current expenses for support, care, and education of the ward shall be paid to
1417-697
4461+2196
14184462 the conservator for management as provided in this chapter; and
1419-698
4463+2197
14204464 (b) the guardian shall account to the conservator for funds expended.
1421-699
4465+2198
14224466 (6)(a) Any guardian of a person for whom a conservator has been appointed:
1423-700
4467+2199
14244468 (i) shall control the custody and care of the ward; and
1425-701
4469+2200
14264470 (ii) is entitled to receive reasonable sums for services and for room and board
1427-702
4471+2201
14284472 furnished to the ward as agreed upon between the guardian and the conservator if
1429-703
4473+2202
14304474 the amounts agreed upon are reasonable under the circumstances.
1431-704
4475+2203
14324476 (b) The guardian may request the conservator to expend the ward's estate by payment to
1433-705
4477+2204
14344478 third persons or institutions for the ward's care and maintenance.
1435-706
4479+- 65 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4480+2205
14364481 (7)(a) The court may impose a penalty in an amount not to exceed $5,000 if a guardian:
1437-707
4482+2206
14384483 (i) makes a substantial misstatement on filings of annual reports;
1439-- 21 - H.B. 334 Enrolled Copy
1440-708
4484+2207
14414485 (ii) is guilty of gross impropriety in handling the property of the ward; or
1442-709
4486+2208
14434487 (iii) willfully fails to file the report required by this section after receiving written
1444-710
4488+2209
14454489 notice from the court of the failure to file and after a grace period of two months
1446-711
4490+2210
14474491 has elapsed.
1448-712
4492+2211
14494493 (b) The court may order restitution of funds misappropriated from the estate of a ward.
1450-713
4494+2212
14514495 (c) A penalty under this Subsection (7) shall be paid by the guardian and may not be
1452-714
4496+2213
14534497 paid by the ward or the ward's estate.
1454-715
4498+2214
14554499 (d) The provisions and penalties in Subsection (2)(k) or (l) governing annual reports do
1456-716
4500+2215
14574501 not apply if the guardian or a coguardian is the parent of the ward.
1458-717
4502+2216
14594503 (8) A person who refuses to accept the authority of a guardian with authority over financial
1460-718
4504+2217
14614505 decisions to transact business with the assets of the ward after receiving a certified copy
1462-719
4506+2218
14634507 of letters of guardianship is liable for costs, expenses, attorney fees, and damages if the
1464-720
4508+2219
14654509 court determines that the person did not act in good faith in refusing to accept the
1466-721
4510+2220
14674511 authority of the guardian.
1468-722
1469-Section 7. Section 75-5-417 is amended to read:
1470-723
4512+2221
4513+Section 21. Section 75-5-417 is amended to read:
4514+2222
14714515 75-5-417 . General duty of conservator.
1472-724
4516+2223
14734517 (1) A conservator shall act as a fiduciary and shall observe the standards of care as set forth
1474-725
4518+2224
14754519 in Section 75-7-902.
1476-726
4520+2225
14774521 (2)(a) For all estates in excess of $50,000 excluding the residence owned by the ward,
1478-727
4522+2226
14794523 the conservator shall send a report with a full accounting to the court on an annual
1480-728
4524+2227
14814525 basis.
1482-729
4526+2228
14834527 (b) For estates less than $50,000 excluding the residence owned by the ward, the
1484-730
4528+2229
14854529 conservator shall fill out an informal annual report and mail the report to the court.
1486-731
4530+2230
14874531 (c) A report under Subsection (2)(a) or (b) shall include a statement regarding:
1488-732
4532+2231
14894533 (i) all assets at the beginning and end of the reporting year;
1490-733
4534+2232
14914535 (ii) any income received during the year;
1492-734
4536+2233
14934537 (iii) any disbursements for the support of the ward;
1494-735
4538+2234
14954539 (iv) any investments or trusts that are held for the ward's benefit;
1496-736
4540+2235
14974541 (v) any expenditures or fees charged to the ward's estate; and
1498-737
4542+2236
14994543 (vi) any other expenses incurred by the ward's estate.
1500-738
4544+2237
15014545 (d) The Judicial Council shall approve the forms for the accounting reports described in
1502-739
4546+2238
15034547 Subsections (2)(a) and (b).
1504-740
4548+- 66 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4549+2239
15054550 (e) An annual accounting report under Subsection (2)(a) or (b) shall be examined and
1506-741
4551+2240
15074552 approved by the court.
1508-- 22 - Enrolled Copy H.B. 334
1509-742
4553+2241
15104554 (3)(a) Corporate fiduciaries are not required to fully petition the court, but shall submit
1511-743
4555+2242
15124556 their internal report annually to the court.
1513-744
4557+2243
15144558 (b) A report under Subsection (3)(a) shall be examined and approved by the court.
1515-745
4559+2244
15164560 (4) Upon a motion and after a hearing, the court may alter the frequency of, or the
1517-746
4561+2245
15184562 information included in, an accounting report provided to a ward in accordance with
1519-747
4563+2246
15204564 Subsection [75-5-301.5(2)(t)] 75-5-301.5(3)(l).
1521-748
4565+2247
15224566 (5)(a) The court may impose a fine in an amount not to exceed $5,000, if, after receiving
1523-749
4567+2248
15244568 written notice of the failure to file and after a grace period of two months have
1525-750
4569+2249
15264570 elapsed, a conservator or corporate fiduciary:
1527-751
4571+2250
15284572 (i) makes a substantial misstatement on filings of any required annual reports;
1529-752
4573+2251
15304574 (ii) is guilty of gross impropriety in handling the property of the ward; or
1531-753
4575+2252
15324576 (iii) willfully fails to file the report required by this section.
1533-754
4577+2253
15344578 (b) The court may also order restitution of funds misappropriated from the estate of a
1535-755
4579+2254
15364580 ward.
1537-756
4581+2255
15384582 (c) The penalty shall be paid by the conservator or corporate fiduciary and may not be
1539-757
4583+2256
15404584 paid by the estate.
1541-758
4585+2257
15424586 (6) These provisions and penalties governing annual reports do not apply if the conservator
1543-759
4587+2258
15444588 is the parent of the ward.
1545-760
1546-Section 8. Section 75-5-701 is enacted to read:
1547-761
4589+2259
4590+Section 22. Section 75-5-701 is enacted to read:
4591+2260
15484592
15494593 Part 7. Supported Decision-making Agreements
1550-762
4594+2261
15514595 75-5-701 . Definitions.
1552-763
4596+2262
15534597 As used in this part:
1554-764
4598+2263
15554599 (1) "Abuse" means the same as that term is defined in Section 26B-6-201.
1556-765
4600+2264
15574601 (2) "Coercion" means influencing or attempting to influence a principal using force, threats,
1558-766
4602+2265
15594603 or intimidation.
1560-767
4604+2266
15614605 (3) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec. 160.103.
1562-768
4606+2267
15634607 (4) "Exploitation" means the same as that term is defined in Section 26B-6-201.
1564-769
4608+2268
15654609 (5) "Good faith" means honesty in fact in the conduct or transaction concerned.
1566-770
4610+2269
15674611 (6) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, 50
1568-771
4612+2270
15694613 Pub. L. No. 104-191, 110 Stat. 1936, as amended.
1570-772
4614+2271
15714615 (7) "Neglect" means the same as that term is defined in Section 26B-6-201.
1572-773
4616+2272
15734617 (8) "Principal" means an individual who:
1574-774
4618+- 67 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4619+2273
15754620 (a) is 18 years old or older;
1576-775
4621+2274
15774622 (b) has a disability, as that term is defined in Section 26B-6-801; and
1578-- 23 - H.B. 334 Enrolled Copy
1579-776
4623+2275
15804624 (c) has entered into a supported decision-making agreement with at least one supporter.
1581-777
4625+2276
15824626 (9) "Protected health information" means the same as that term is defined in 45 C.F.R. Sec.
1583-778
4627+2277
15844628 160.103.
1585-779
4629+2278
15864630 (10)(a) "Solicit" means to ask, command, encourage, importune, urge, or request.
1587-780
4631+2279
15884632 (b) "Solicit" does not include providing information, materials, resources, or education
1589-781
4633+2280
15904634 materials to an individual.
1591-782
4635+2281
15924636 (11) "Qualifying person" means a person who has a legal right to receive notice regarding,
1593-783
4637+2282
15944638 or legal decision-making authority for, an individual seeking to enter into a supported
1595-784
4639+2283
15964640 decision-making agreement, which may include:
1597-785
4641+2284
15984642 (a) the agent for a power of attorney;
1599-786
4643+2285
16004644 (b) the agent for an advance health care directive; or
1601-787
4645+2286
16024646 (c) the personal representative of a will or the trustee of a trust.
1603-788
4647+2287
16044648 (12) "Supported decision-making" means the process of supporting and accommodating an
1605-789
4649+2288
16064650 individual in the decision-making process to make, communicate, and effectuate life
1607-790
4651+2289
16084652 decisions, without impeding the self-determination of the individual.
1609-791
4653+2290
16104654 (13) "Supported decision-making agreement" means an agreement between a principal and
1611-792
4655+2291
16124656 at least one supporter, subject to the requirements described in Section 75-5-704.
1613-793
4657+2292
16144658 (14) "Supporter" means an individual:
1615-794
4659+2293
16164660 (a) who is 18 years old or older;
1617-795
4661+2294
16184662 (b) who is not being paid to provide support to the principal, unless the individual is
1619-796
4663+2295
16204664 receiving caregiver compensation through the Division of Services for People with
1621-797
4665+2296
16224666 Disabilities or is a sibling of the principal who cares for the principal;
1623-798
4667+2297
16244668 (c) who does not have any of the following:
1625-799
4669+2298
16264670 (i) a substantiated allegation of abuse, neglect, or exploitation;
1627-800
4671+2299
16284672 (ii) a protective or restraining order; or
1629-801
4673+2300
16304674 (iii) a conviction for:
1631-802
4675+2301
16324676 (A) harm of another;
1633-803
4677+2302
16344678 (B) theft; or
1635-804
4679+2303
16364680 (C) financial crime; and
1637-805
4681+2304
16384682 (d) who has agreed to provide specified assistance to a principal by entering into a
1639-806
4683+2305
16404684 supported decision-making agreement with the principal.
1641-807
4685+2306
16424686 (15) "Undue influence" means the same as that term is defined in Section 26B-6-201.
1643-808
1644-Section 9. Section 75-5-702 is enacted to read:
1645-809
4687+- 68 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4688+2307
4689+Section 23. Section 75-5-702 is enacted to read:
4690+2308
16464691 75-5-702 . Purposes of part.
1647-- 24 - Enrolled Copy H.B. 334
1648-810
4692+2309
16494693 The purposes of this part are to:
1650-811
4694+2310
16514695 (1) provide a principal assistance in:
1652-812
4696+2311
16534697 (a) gathering and assessing information;
1654-813
4698+2312
16554699 (b) understanding options, responsibilities, and consequences of a decision; and
1656-814
4700+2313
16574701 (c) communicating decisions for a principal if the principal wants assistance with
1658-815
4702+2314
16594703 communicating decisions;
1660-816
4704+2315
16614705 (2) give a supporter legal status, as specified in a supported decision-making agreement, to
1662-817
4706+2316
16634707 be with a principal, to access information on behalf of a principal, and to participate in
1664-818
4708+2317
16654709 discussions with others when a principal is making decisions or seeking to obtain
1666-819
4710+2318
16674711 information; and
1668-820
4712+2319
16694713 (3) enable a supporter to assist in making and communicating decisions for a principal, but
1670-821
4714+2320
16714715 not to substitute as the decision maker for a principal.
1672-822
1673-Section 10. Section 75-5-703 is enacted to read:
1674-823
4716+2321
4717+Section 24. Section 75-5-703 is enacted to read:
4718+2322
16754719 75-5-703 . Interpretation of part.
1676-824
4720+2323
16774721 This part shall be construed and applied in accordance with the following principles:
1678-825
4722+2324
16794723 (1) a principal should be able to:
1680-826
4724+2325
16814725 (a) live in the manner in which the principal wishes; and
1682-827
4726+2326
16834727 (b) make decisions about accepting or refusing support, assistance, or protection, as long
1684-828
4728+2327
16854729 as doing so does not cause serious bodily injury, as that term is defined in Section
1686-829
4730+2328
16874731 26B-5-301, to the principal, or harm to others;
1688-830
4732+2329
16894733 (2) a principal should be informed about and, to the best of the principal's abilities,
1690-831
4734+2330
16914735 participate in the management of the principal's affairs;
1692-832
4736+2331
16934737 (3) a principal should receive the most effective, yet least restrictive and intrusive, form of
1694-833
4738+2332
16954739 support, assistance, or protection when the principal is unable to manage the principal's
1696-834
4740+2333
16974741 affairs alone; and
1698-835
4742+2334
16994743 (4) the values, beliefs, wishes, cultural norms, and traditions that a principal holds should
1700-836
4744+2335
17014745 be respected in supporting the principal.
1702-837
1703-Section 11. Section 75-5-704 is enacted to read:
1704-838
4746+2336
4747+Section 25. Section 75-5-704 is enacted to read:
4748+2337
17054749 75-5-704 . Supported decision-making agreement.
1706-839
4750+2338
17074751 (1) Subject to Subsections (2) and (6), an individual may enter into a supported
1708-840
4752+2339
17094753 decision-making agreement at any time if:
1710-841
4754+2340
17114755 (a) the individual enters into the agreement voluntarily, without coercion or undue
1712-842
4756+- 69 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4757+2341
17134758 influence, and without being solicited to enter into the agreement; and
1714-843
4759+2342
17154760 (b) the individual understands the nature and effect of the agreement.
1716-- 25 - H.B. 334 Enrolled Copy
1717-844
4761+2343
17184762 (2)(a) If the individual seeking to enter into a supported decision-making agreement has
1719-845
4763+2344
17204764 a court-appointed guardian, court-appointed conservator, or qualifying person, the
1721-846
4765+2345
17224766 guardian, conservator, or qualifying person shall be given:
1723-847
4767+2346
17244768 (i) notice and an opportunity to participate in all discussions related to a proposed
1725-848
4769+2347
17264770 supported decision-making agreement; and
1727-849
4771+2348
17284772 (ii) 14 days to review a proposed supported decision-making agreement to determine
1729-850
4773+2349
17304774 whether the proposed agreement includes an area over which the guardian,
1731-851
4775+2350
17324776 conservator, or qualifying person has been granted legal decision-making
1733-852
4777+2351
17344778 authority.
1735-853
4779+2352
17364780 (b) If a guardian, conservator, or qualifying person determines, pursuant to Subsection
1737-854
4781+2353
17384782 (2)(a), that a proposed supported decision-making agreement includes an area over
1739-855
4783+2354
17404784 which the guardian, conservator, or qualifying person has been granted
1741-856
4785+2355
17424786 decision-making authority:
1743-857
4787+2356
17444788 (i) the supported decision-making agreement is not valid without the signature of the
1745-858
4789+2357
17464790 guardian, conservator, or qualifying person; and
1747-859
4791+2358
17484792 (ii) the proposed supported decision-making agreement shall describe how the
1749-860
4793+2359
17504794 guardian, conservator, or qualifying person will be provided timely notice of and
1751-861
4795+2360
17524796 an opportunity to participate in any discussion between parties to the supported
1753-862
4797+2361
17544798 decision-making agreement that relate to an area over which the guardian,
1755-863
4799+2362
17564800 conservator, or qualifying person has been granted legal decision-making
1757-864
4801+2363
17584802 authority.
1759-865
4803+2364
17604804 (c) If a guardian, conservator, or qualifying person described in Subsection (2)(a)
1761-866
4805+2365
17624806 determines that a proposed supported decision-making agreement includes an area
1763-867
4807+2366
17644808 over which the guardian, conservator, or other person has not been granted legal
1765-868
4809+2367
17664810 decision-making authority, nothing in this part shall be construed to:
1767-869
4811+2368
17684812 (i) require that the guardian, conservator, or qualifying person be excluded from any
1769-870
4813+2369
17704814 discussion relating to that area; or
1771-871
4815+2370
17724816 (ii) preclude the parties to the proposed supported decision-making agreement from
1773-872
4817+2371
17744818 giving the guardian, conservator, or qualifying person notice and an opportunity to
1775-873
4819+2372
17764820 participate in any discussion relating to that area.
1777-874
4821+2373
17784822 (3) A supported decision-making agreement shall:
1779-875
4823+2374
17804824 (a) be in writing;
1781-876
4825+- 70 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4826+2375
17824827 (b) state the date on which the agreement is effective;
1783-877
4828+2376
17844829 (c) designate at least one supporter;
1785-- 26 - Enrolled Copy H.B. 334
1786-878
4830+2377
17874831 (d) describe:
1788-879
4832+2378
17894833 (i) how the principal uses supported decision-making to make decisions;
1790-880
4834+2379
17914835 (ii) the rights of the principal;
1792-881
4836+2380
17934837 (iii) the responsibilities of each supporter;
1794-882
4838+2381
17954839 (iv) the decision-making supports and accommodations the principal chooses to
1796-883
4840+2382
17974841 receive from each supporter;
1798-884
4842+2383
17994843 (v) the types of decisions, if any, with which a supporter is not authorized to assist
1800-885
4844+2384
18014845 the principal;
1802-886
4846+2385
18034847 (e) include the ink or electronic signature of:
1804-887
4848+2386
18054849 (i) the individual seeking to enter into the supported decision-making agreement;
1806-888
4850+2387
18074851 (ii) each supporter;
1808-889
4852+2388
18094853 (iii) a guardian, conservator, or qualifying person, if required under Subsection (2);
1810-890
4854+2389
18114855 and
1812-891
4856+2390
18134857 (iv)(A) two witnesses; or
1814-892
4858+2391
18154859 (B) a notary public; and
1816-893
4860+2392
18174861 (f) describe how any perceived or actual conflict of interest between a supporter and the
1818-894
4862+2393
18194863 principal will be mitigated.
1820-895
4864+2394
18214865 (4)(a) A supported decision-making agreement executed other than in this state is valid
1822-896
4866+2395
18234867 in this state if, when the supported decision-making agreement was executed, the
1824-897
4868+2396
18254869 execution complied with the law of the jurisdiction that determines the meaning and
1826-898
4870+2397
18274871 effect of the supported decision-making agreement.
1828-899
4872+2398
18294873 (b) The meaning and effect of a supported decision-making agreement is determined by
1830-900
4874+2399
18314875 the law of the jurisdiction indicated in the supported decision-making agreement and,
1832-901
4876+2400
18334877 in the absence of an indication of jurisdiction, by the law of the jurisdiction in which
1834-902
4878+2401
18354879 the supported decision-making agreement was executed.
1836-903
4880+2402
18374881 (5)(a) A supported decision-making agreement may include a release or other document
1838-904
4882+2403
18394883 by which the principal authorizes a supporter to access the principal's confidential
1840-905
4884+2404
18414885 information, subject to the terms of the supported decision-making agreement
1842-906
4886+2405
18434887 described in Subsection (3) and the supporter's duties described in Section 75-5-705.
1844-907
4888+2406
18454889 (b) Before a covered entity may share a principal's protected health information with a
1846-908
4890+2407
18474891 supporter, the principal shall sign a HIPAA consent form authorizing release of the
1848-909
4892+2408
18494893 protected health information to the supporter.
1850-910
4894+- 71 - 1st Sub. (Buff) H.B. 334 03-07 11:11
4895+2409
18514896 (c) Nothing in this part shall be construed to alter or preempt the requirements for
1852-911
4897+2410
18534898 protecting health information under HIPAA.
1854-- 27 - H.B. 334 Enrolled Copy
1855-912
4899+2411
18564900 (6) Each supporter shall include with the supporter's signature:
1857-913
4901+2412
18584902 (a) a description of the supporter's relationship to the principal;
1859-914
4903+2413
18604904 (b) a statement of the supporter's willingness to act as a supporter;
1861-915
4905+2414
18624906 (c) an acknowledgment of the supporter's duties; and
1863-916
4907+2415
18644908 (d) an attestation that the supporter:
1865-917
4909+2416
18664910 (i) agrees to honor the right of the principal to make decisions;
1867-918
4911+2417
18684912 (ii) will not make decisions for the principal, including health care decisions; and
1869-919
4913+2418
18704914 (iii) will respect and work to further the independence of the principal.
1871-920
4915+2419
18724916 (7) A supported decision-making agreement may do one or more of the following:
1873-921
4917+2420
18744918 (a) specify a time period for which the supported decision-making agreement is valid;
1875-922
4919+2421
18764920 (b) designate more than one supporter;
1877-923
4921+2422
18784922 (c) designate an alternate individual to act in the place of a supporter under
1879-924
4923+2423
18804924 circumstances specified in the supported decision-making agreement; or
1881-925
4925+2424
18824926 (d) authorize a supporter to share information with another supporter or other individual
1883-926
4927+2425
18844928 named in the supported decision-making agreement.
1885-927
1886-Section 12. Section 75-5-705 is enacted to read:
1887-928
4929+2426
4930+Section 26. Section 75-5-705 is enacted to read:
4931+2427
18884932 75-5-705 . Supporter duties.
1889-929
4933+2428
18904934 (1) A supporter shall:
1891-930
4935+2429
18924936 (a) act with the care, competence, and diligence ordinarily exercised by individuals in
1893-931
4937+2430
18944938 similar circumstances, and in accordance with the supporter's skills or expertise;
1895-932
4939+2431
18964940 (b) act in good faith;
1897-933
4941+2432
18984942 (c) comply with the terms of the supported decision-making agreement;
1899-934
4943+2433
19004944 (d) maintain records, which the supporter shall make available to the principal upon
1901-935
4945+2434
19024946 request, concerning:
1903-936
4947+2435
19044948 (i) the supporter's actions under the supported decision-making agreement; and
1905-937
4949+2436
19064950 (ii) how the principal communicates and expresses opinions to the supporter; and
1907-938
4951+2437
19084952 (e) ensure that all information collected on behalf of the principal pursuant to the
1909-939
4953+2438
19104954 supported decision-making agreement and this section is:
1911-940
4955+2439
19124956 (i) kept confidential, as appropriate;
1913-941
4957+2440
19144958 (ii) not subject to unauthorized access, use, or disclosure; and
1915-942
4959+2441
19164960 (iii) properly disposed of when appropriate.
1917-943
4961+2442
19184962 (2) Except as otherwise provided in the supported decision-making agreement or
1919-944
4963+- 72 - 03-07 11:11 1st Sub. (Buff) H.B. 334
4964+2443
19204965 Subsection (3), a supporter may, as directed by the principal:
1921-945
4966+2444
19224967 (a) assist the principal in understanding information, options, responsibilities, and
1923-- 28 - Enrolled Copy H.B. 334
1924-946
4968+2445
19254969 consequences of the principal's life decisions, including decisions relating to the
1926-947
4970+2446
19274971 principal's affairs or supportive services;
1928-948
4972+2447
19294973 (b) help the principal access, obtain, and understand information that is relevant to a life
1930-949
4974+2448
19314975 decision, including medical, psychological, financial, or educational decisions, or any
1932-950
4976+2449
19334977 treatment records or records related to the management of the principal's affairs or
1934-951
4978+2450
19354979 supportive services;
1936-952
4980+2451
19374981 (c) assist the principal with finding, obtaining, and making appointments for supportive
1938-953
4982+2452
19394983 services, and implement the principal's plans for supportive services;
1940-954
4984+2453
19414985 (d) help the principal monitor information about the principal's affairs or supportive
1942-955
4986+2454
19434987 services, including tracking future necessary or recommended services;
1944-956
4988+2455
19454989 (e) ascertain the wishes and decisions of the principal, assist in communicating those
1946-957
4990+2456
19474991 wishes and decisions to others, and advocate to ensure that the wishes and decisions
1948-958
4992+2457
19494993 of the principal are implemented; or
1950-959
4994+2458
19514995 (f) assist the principal with obtaining information to which the principal is entitled.
1952-960
4996+2459
19534997 (3) A supporter may not:
1954-961
4998+2460
19554999 (a) coerce, exploit, exert undue influence on, or make decisions on behalf of the
1956-962
5000+2461
19575001 principal;
1958-963
5002+2462
19595003 (b) sign for the principal or provide an electronic signature of the principal to a third
1960-964
5004+2463
19615005 party;
1962-965
5006+2464
19635007 (c) make health care decisions for the principal; or
1964-966
5008+2465
19655009 (d) without the principal's consent:
1966-967
5010+2466
19675011 (i) obtain information that is not reasonably related to matters with which the
1968-968
5012+2467
19695013 supporter is authorized to support or assist the principal pursuant to the supported
1970-969
5014+2468
19715015 decision-making agreement;
1972-970
5016+2469
19735017 (ii) use information acquired in connection with the supported decision-making
1974-971
5018+2470
19755019 agreement for a purpose other than supporting or assisting the principal pursuant
1976-972
5020+2471
19775021 to the supported decision-making agreement; or
1978-973
5022+2472
19795023 (iii) delegate the supporter's duties to a third party.
1980-974
1981-Section 13. Section 75-5-706 is enacted to read:
1982-975
5024+2473
5025+Section 27. Section 75-5-706 is enacted to read:
5026+2474
19835027 75-5-706 . Revocation -- Withdrawal.
1984-976
5028+2475
19855029 (1) A principal may revoke a supported decision-making agreement at any time by
1986-977
5030+2476
19875031 providing written notice to all other parties to the agreement.
1988-978
5032+- 73 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5033+2477
19895034 (2) A supporter may withdraw from a supported decision-making agreement at any time by
1990-979
5035+2478
19915036 providing written notice to all other parties to the agreement.
1992-- 29 - H.B. 334 Enrolled Copy
1993-980
5037+2479
19945038 (3) A written notice of revocation or withdrawal under this section may be provided by
1995-981
5039+2480
19965040 electronic means.
1997-982
1998-Section 14. Section 75-5-707 is enacted to read:
1999-983
5041+2481
5042+Section 28. Section 75-5-707 is enacted to read:
5043+2482
20005044 75-5-707 . Termination.
2001-984
5045+2483
20025046 Unless otherwise provided in the supported decision-making agreement, a supported
2003-985
5047+2484
20045048 decision-making agreement is terminated upon the occurrence of any of the following:
2005-986
5049+2485
20065050 (1) the death of the principal;
2007-987
5051+2486
20085052 (2) revocation by the principal pursuant to Section 75-5-706;
2009-988
5053+2487
20105054 (3) as to a specific supporter, if the supporter is no longer qualified by reason of failure to
2011-989
5055+2488
20125056 meet the requirements described in Subsection 75-5-701(14);
2013-990
5057+2489
20145058 (4) withdrawal by all of the supporters pursuant to Section 75-5-706 without the
2015-991
5059+2490
20165060 designation of a successor supporter;
2017-992
5061+2491
20185062 (5) the principal's execution of a valid power of attorney, healthcare directive, or
2019-993
5063+2492
20205064 declaration for mental health treatment, except to the extent the executed document
2021-994
5065+2493
20225066 expressly continues, in whole or in part, the supported decision-making agreement; or
2023-995
5067+2494
20245068 (6) a court's:
2025-996
5069+2495
20265070 (a) determination that the principal does not have capacity to execute or consent to a
2027-997
5071+2496
20285072 supported decision-making agreement; or
2029-998
5073+2497
20305074 (b) appointment of a temporary or permanent guardian or conservator, unless the court's
2031-999
5075+2498
20325076 order of appointment:
2033-1000
5077+2499
20345078 (i) modifies but continues the supported decision-making agreement; and
2035-1001
5079+2500
20365080 (ii) limits the powers and duties of the guardian.
2037-1002
2038-Section 15. Section 75-5-708 is enacted to read:
2039-1003
5081+2501
5082+Section 29. Section 75-5-708 is enacted to read:
5083+2502
20405084 75-5-708 . Impact of supported decision-making agreement.
2041-1004
5085+2503
20425086 (1) A decision or request made or communicated by a principal with the assistance of a
2043-1005
5087+2504
20445088 supporter in accordance with the terms of a supported decision-making agreement and
2045-1006
5089+2505
20465090 this part shall, for the purposes of any provision of law, be recognized as the decision or
2047-1007
5091+2506
20485092 request of the principal and may be enforced on the same basis as a decision or request
2049-1008
5093+2507
20505094 of the principal without support.
2051-1009
5095+2508
20525096 (2) The availability of a supported decision-making agreement does not limit the informal
2053-1010
5097+2509
20545098 use of supported decision making, or preclude judicial consideration of informal
2055-1011
5099+2510
20565100 supported decision-making arrangements as a less restrictive alternative to a
2057-1012
5101+- 74 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5102+2511
20585103 guardianship or conservatorship.
2059-1013
5104+2512
20605105 (3) Execution of a supported decision-making agreement may not be a condition of
2061-- 30 - Enrolled Copy H.B. 334
2062-1014
5106+2513
20635107 participating in any activity, service, or program.
2064-1015
5108+2514
20655109 (4) A court may not consider an individual's execution of a supported decision-making
2066-1016
5110+2515
20675111 agreement as evidence of the individual's incapacity.
2068-1017
5112+2516
20695113 (5) The existence of a supported decision-making agreement does not preclude the principal
2070-1018
5114+2517
20715115 from acting independently of the supported decision-making agreement.
2072-1019
2073-Section 16. Section 75-5-709 is enacted to read:
2074-1020
5116+2518
5117+Section 30. Section 75-5-709 is enacted to read:
5118+2519
20755119 75-5-709 . Liability.
2076-1021
5120+2520
20775121 (1) A person who is not a party to a supported decision-making agreement, including a
2078-1022
5122+2521
20795123 provider of health care or financial services, that in good faith accepts or relies upon a
2080-1023
5124+2522
20815125 supported decision-making agreement:
2082-1024
5126+2523
20835127 (a) may presume that the signatures on the supported decision-making agreement are
2084-1025
5128+2524
20855129 genuine, unless the person has actual knowledge that any signature on the supported
2086-1026
5130+2525
20875131 decision-making agreement is not genuine;
2088-1027
5132+2526
20895133 (b) may presume that a supported decision-making agreement is valid and that a
2090-1028
5134+2527
20915135 purported supporter's authority is valid, unless the person has actual knowledge that
2092-1029
5136+2528
20935137 the supported decision-making agreement or the purported supporter's authority has
2094-1030
5138+2529
20955139 been revoked, terminated, or is otherwise void or invalid; and
2096-1031
5140+2530
20975141 (c) is not subject to civil or criminal liability, or discipline for unprofessional conduct,
2098-1032
5142+2531
20995143 for giving effect to a provision in a supported decision-making agreement, or for
2100-1033
5144+2532
21015145 following the direction of a supporter given in accordance with the supported
2102-1034
5146+2533
21035147 decision-making agreement.
2104-1035
5148+2534
21055149 (2) If a person has reason to believe a principal is or has been the subject of abuse, neglect,
2106-1036
5150+2535
21075151 or exploitation, or observes a principal being subjected to conditions or circumstances
2108-1037
5152+2536
21095153 that would reasonably result in abuse, neglect, or exploitation, the person shall
2110-1038
5154+2537
21115155 immediately report the suspected abuse, neglect, or exploitation to Adult Protective
2112-1039
5156+2538
21135157 Services.
2114-1040
5158+2539
21155159 (3) The provisions of this part may not be construed to affect mandatory reporting
2116-1041
5160+2540
21175161 obligations related to abuse, neglect, or exploitation.
2118-1042
5162+2541
21195163 (4) A supporter who violates this part or the terms of a supported decision-making
2120-1043
5164+2542
21215165 agreement is liable to the principal or the principal's successor in interest for the amount
2122-1044
5166+2543
21235167 required to restore the value of the principal's property to what it would have been had
2124-1045
5168+2544
21255169 the violation not occurred.
2126-1046
5170+- 75 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5171+2545
21275172 (5) A transaction between a supporter and a principal that occurs while a supported
2128-1047
5173+2546
21295174 decision-making agreement is in effect, or while the supporter is in a position of trust
2130-- 31 - H.B. 334 Enrolled Copy
2131-1048
5175+2547
21325176 with the principal, and from which the supporter obtains a benefit or advantage, is
2133-1049
5177+2548
21345178 voidable by the principal unless the supporter establishes that the transaction was fair to
2135-1050
5179+2549
21365180 the principal.
2137-1051
2138-Section 17. Effective date.
2139-1052
5181+2550
5182+Section 31. Section 77-15-2 is amended to read:
5183+2551
5184+77-15-2 . Definitions.
5185+2552
5186+ As used in this chapter:
5187+2553
5188+(1) "Competency evaluation" means an evaluation conducted by a forensic evaluator to
5189+2554
5190+determine if an individual is competent to stand trial.
5191+2555
5192+(2) "Competent to stand trial" means that a defendant has:
5193+2556
5194+(a) a rational and factual understanding of the criminal proceedings against the
5195+2557
5196+defendant and of the punishment specified for the offense charged; and
5197+2558
5198+(b) the ability to consult with the defendant's legal counsel with a reasonable degree of
5199+2559
5200+rational understanding in order to assist in the defense.
5201+2560
5202+(3) "Department" means the Department of Health and Human Services.
5203+2561
5204+(4) "Forensic evaluator" means a licensed mental health professional who:
5205+2562
5206+(a) is not involved in the defendant's treatment;
5207+2563
5208+(b) is trained and qualified by the department to conduct a competency evaluation, a
5209+2564
5210+restoration screening, and a progress toward competency evaluation, based on
5211+2565
5212+knowledge, experience, or education relating to:
5213+2566
5214+(i) intellectual functioning or psychopathology; and
5215+2567
5216+(ii) the legal system and the rights of a defendant in a criminal trial; and
5217+2568
5218+(c) if under contract with the department, demonstrates ongoing education and training
5219+2569
5220+relating to forensic mental health in accordance with rules established by the
5221+2570
5222+department in accordance with Title 63G, Chapter 3, Utah Administrative
5223+2571
5224+Rulemaking Act.
5225+2572
5226+(5) "Incompetent to proceed" means that a defendant is not competent to stand trial as a
5227+2573
5228+result of:
5229+2574
5230+(a) mental illness; or
5231+2575
5232+(b) intellectual disability.
5233+2576
5234+[(6) "Intellectual disability" means an intellectual disability as defined in the current edition
5235+2577
5236+of the Diagnostic and Statistical Manual of Mental Disorders published by the American
5237+2578
5238+Psychiatric Association.]
5239+- 76 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5240+2579
5241+[(7)] (6) "Mental illness" means the same as that term is defined in Section 26B-5-301.
5242+2580
5243+[(8)] (7) "Petition" means a petition to request a court to determine whether a defendant is
5244+2581
5245+competent to stand trial.
5246+2582
5247+[(9)] (8) "Progress toward competency evaluation" means an evaluation to determine
5248+2583
5249+whether an individual who is receiving restoration treatment is:
5250+2584
5251+(a) competent to stand trial;
5252+2585
5253+(b) incompetent to proceed but has a substantial probability of becoming competent to
5254+2586
5255+stand trial in the foreseeable future; or
5256+2587
5257+(c) incompetent to proceed and does not have a substantial probability of becoming
5258+2588
5259+competent to stand trial in the foreseeable future.
5260+2589
5261+[(10)] (9) "Restoration treatment" means training and treatment that is:
5262+2590
5263+(a) provided to an individual who is incompetent to proceed;
5264+2591
5265+(b) tailored to the individual's particular impairment to competency; and
5266+2592
5267+(c) limited to the purpose of restoring the individual to competency.
5268+2593
5269+Section 32. Section 77-15-5 is amended to read:
5270+2594
5271+
5272+CHAPTER 15. DEFENDANT'S COMPETENCY TO PROCEED
5273+2595
5274+77-15-5 . Order for hearing -- Stay of other proceedings -- Examinations of
5275+2596
5276+defendant -- Scope of examination and report.
5277+2597
5278+(1) A court in which criminal proceedings are pending shall stay all criminal proceedings, if:
5279+2598
5280+(a) a petition is filed under Section 77-15-3 or 77-15-3.5; or
5281+2599
5282+(b) the court raises the issue of the defendant's competency under Section 77-15-4.
5283+2600
5284+(2) The court in which the petition described in Subsection (1)(a) is filed:
5285+2601
5286+(a) shall inform the court in which criminal proceedings are pending of the petition, if
5287+2602
5288+the petition is not filed in the court in which criminal proceedings are pending;
5289+2603
5290+(b) shall review the allegations of incompetency;
5291+2604
5292+(c) may hold a limited hearing solely for the purpose of determining the sufficiency of
5293+2605
5294+the petition, if the court finds the petition is not clearly sufficient on its face;
5295+2606
5296+(d) shall hold a hearing, if the petition is opposed by either party; and
5297+2607
5298+(e) may not order an examination of the defendant or order a hearing on the mental
5299+2608
5300+condition of the defendant unless the court finds that the allegations in the petition
5301+2609
5302+raise a bona fide doubt as to the defendant's competency to stand trial.
5303+2610
5304+(3)(a) If the court finds that there is a bona fide doubt as to the defendant's competency
5305+2611
5306+to stand trial, the court shall order the department to have one or two forensic
5307+2612
5308+evaluators complete a competency evaluation for the defendant in accordance with
5309+- 77 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5310+2613
5311+Subsection (3)(b) and provide a report to the court regarding the competency of the
5312+2614
5313+defendant to stand trial.
5314+2615
5315+(b) The court shall order the department to have the defendant evaluated by one forensic
5316+2616
5317+evaluator unless:
5318+2617
5319+(i) the defendant is charged with a capital felony; or
5320+2618
5321+(ii) the defendant is charged with a felony that is not a capital felony, and the court
5322+2619
5323+determines, based on the allegations in the petition, that good cause exists to order
5324+2620
5325+two competency evaluations.
5326+2621
5327+(c)(i) This section does not prohibit a party from seeking an additional forensic
5328+2622
5329+evaluator to conduct a competency evaluation of the defendant.
5330+2623
5331+(ii) If a party seeks an additional competency evaluation under this Subsection (3)(c),
5332+2624
5333+the party shall:
5334+2625
5335+(A) select the additional forensic evaluator; and
5336+2626
5337+(B) pay the costs of the additional forensic evaluator.
5338+2627
5339+(d) The stipulation by parties to a bona fide doubt as to the defendant's competency to
5340+2628
5341+stand trial alone may not take the place of a competency evaluation ordered under
5342+2629
5343+this Subsection (3).
5344+2630
5345+(e) In accordance with state licensing laws, the court may only order the department to
5346+2631
5347+provide an initial evaluation and progress toward competency evaluation for a
5348+2632
5349+defendant who is located within the state.
5350+2633
5351+(4)(a) If the petition or other information sufficiently raises concerns that the defendant
5352+2634
5353+may have an intellectual disability, at least one forensic evaluator who is experienced
5354+2635
5355+in assessments of intellectual disabilities shall conduct a competency evaluation.
5356+2636
5357+(b) The petitioner or other party, as directed by the court or requested by the department,
5358+2637
5359+shall provide to the forensic evaluator nonmedical information and materials relevant
5360+2638
5361+to a determination of the defendant's competency, including the charging document,
5362+2639
5363+arrest or incident reports pertaining to the charged offense, known criminal history
5364+2640
5365+information, and known prior mental health evaluations and treatments.
5366+2641
5367+(c) For purposes of a competency evaluation, a custodian of mental health records
5368+2642
5369+pertaining to the defendant, including the defendant's prior mental health evaluations
5370+2643
5371+or records relating to the defendant's substance use disorder, may provide the records
5372+2644
5373+to:
5374+2645
5375+(i) with the defendant's consent, a forensic evaluator or the department on the
5376+2646
5377+department's request; or
5378+- 78 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5379+2647
5380+(ii) a forensic evaluator by court order.
5381+2648
5382+(d) A court order under Subsection (4)(c) shall include a protective order that expires
5383+2649
5384+180 days after the day on which:
5385+2650
5386+(i) the defendant is found guilty;
5387+2651
5388+(ii) the defendant enters a guilty plea;
5389+2652
5390+(iii) the court sentences the defendant; or
5391+2653
5392+(iv) if the case is appealed, the day on which the final appeal is resolved.
5393+2654
5394+(e)(i) Except as otherwise provided by law and in Subsections (4)(e)(ii) and (4)(f),
5395+2655
5396+the court shall order the forensic evaluator to destroy all records subject to the
5397+2656
5398+protective order within the 180 day period described in Subsection (4)(d).
5399+2657
5400+(ii) A forensic evaluator is not required to destroy the records subject to the
5401+2658
5402+protective order if destroying the records is a violation of ethical standards to
5403+2659
5404+which the forensic evaluator is subject for occupational licensing.
5405+2660
5406+(f) The court may extend the protective order described in Subsection (4)(d) if:
5407+2661
5408+(i) the court finds the defendant incompetent to proceed without a substantial
5409+2662
5410+probability that the defendant will become competent in the foreseeable future;
5411+2663
5412+(ii) the prosecutor or another individual indicates to the court that the prosecutor or
5413+2664
5414+other individual will seek civil commitment of the defendant under Section
5415+2665
5416+77-15-6; and
5417+2666
5418+(iii) the court orders the records be maintained and used only for the purposes of
5419+2667
5420+examining the defendant in connection with the petition for civil commitment.
5421+2668
5422+(g) An order for a competency evaluation may not contain an order for any other inquiry
5423+2669
5424+into the mental state of the defendant that is not described in this Subsection (4).
5425+2670
5426+(5) Pending a competency evaluation, unless the court or the department directs otherwise,
5427+2671
5428+the defendant shall be retained in the same custody or status that the defendant was in at
5429+2672
5430+the time the examination was ordered.
5431+2673
5432+(6) In the conduct of a competency evaluation and in a report to the court, a forensic
5433+2674
5434+evaluator shall consider and address, in addition to any other factors determined to be
5435+2675
5436+relevant by the forensic evaluator:
5437+2676
5438+(a)[(i)] the impact of the defendant's mental illness or intellectual disability on the
5439+2677
5440+defendant's present ability to:
5441+2678
5442+[(A)] (i) rationally and factually understand the criminal proceedings against the
5443+2679
5444+defendant; and
5445+2680
5446+[(B)] (ii) consult with the defendant's legal counsel with a reasonable degree of
5447+- 79 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5448+2681
5449+rational understanding in order to assist in the defense;
5450+2682
5451+(b) in making the determinations described in Subsection (6)(a), the forensic evaluator
5452+2683
5453+shall consider, as applicable[:]
5454+2684
5455+[(i)] the defendant's present ability to:
5456+2685
5457+[(A)] (i) understand the charges or allegations against the defendant;
5458+2686
5459+[(B)] (ii) communicate facts, events, and states of mind;
5460+2687
5461+[(C)] (iii) understand the range of possible penalties associated with the charges or
5462+2688
5463+allegations against the defendant;
5464+2689
5465+[(D)] (iv) engage in reasoned choice of legal strategies and options;
5466+2690
5467+[(E)] (v) understand the adversarial nature of the proceedings against the defendant;
5468+2691
5469+[(F)] (vi) manifest behavior sufficient to allow the court to proceed; and
5470+2692
5471+[(G)] (vii) testify relevantly, if applicable; and
5472+2693
5473+(c) whether the defendant is exhibiting false or exaggerated physical or psychological
5474+2694
5475+symptoms relevant to the defendant's capacity to stand trial.
5476+2695
5477+(7) Upon a determination that the defendant is incompetent to proceed, the forensic
5478+2696
5479+evaluator shall indicate in the report to the court:
5480+2697
5481+(a) the factors that contribute to the defendant's incompetency, including the nature of
5482+2698
5483+the defendant's mental illness or intellectual disability, if any, and its relationship to
5484+2699
5485+the factors contributing to the defendant's incompetency;
5486+2700
5487+(b) whether there is a substantial probability that:
5488+2701
5489+(i) restoration treatment may bring the defendant to competency to stand trial in the
5490+2702
5491+foreseeable future; or
5492+2703
5493+(ii) the defendant cannot become competent to stand trial in the foreseeable future;
5494+2704
5495+(c) whether the defendant would benefit from restoration treatment; and
5496+2705
5497+(d) if the forensic evaluator makes the determination under Subsection (7)(b)(i) or (7)(c),
5498+2706
5499+an explanation of the reason for the determination and a summary of the treatment
5500+2707
5501+provided to the defendant in the past.
5502+2708
5503+(8)(a) A forensic evaluator shall provide an initial report to the court and the prosecuting
5504+2709
5505+and defense attorneys within 30 days of the receipt of the court's order. The report
5506+2710
5507+shall inform the court of the examiner's opinion concerning the competency of the
5508+2711
5509+defendant to stand trial.
5510+2712
5511+(b)(i) If the forensic evaluator is unable to complete the report in the time specified in
5512+2713
5513+Subsection (8)(a), the forensic evaluator shall give written notice to the court.
5514+2714
5515+(ii) A forensic evaluator who provides the notice described in Subsection (8)(b)(i)
5516+- 80 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5517+2715
5518+shall receive a 15-day extension, giving the forensic evaluator a total of 45 days
5519+2716
5520+after the day on which the forensic evaluator received the court's order to conduct
5521+2717
5522+a competency evaluation and file a report.
5523+2718
5524+(iii) The court may further extend the deadline for completion of the evaluation and
5525+2719
5526+report if the court determines that there is good cause for the extension.
5527+2720
5528+(iv) Upon receipt of an extension described in Subsection (8)(b)(iii), the forensic
5529+2721
5530+evaluator shall file the report as soon as reasonably possible.
5531+2722
5532+(9) Any written report submitted by a forensic evaluator shall:
5533+2723
5534+(a) identify the case ordered for evaluation by the case number;
5535+2724
5536+(b) describe the procedures, techniques, and tests used in the examination and the
5537+2725
5538+purpose or purposes for each, the time spent by the forensic evaluator with the
5539+2726
5540+defendant for purposes of the examination, and the compensation to be paid to the
5541+2727
5542+evaluator for the report;
5543+2728
5544+(c) state the forensic evaluator's clinical observations, findings, and opinions on each
5545+2729
5546+factor described in Subsection (6); and
5547+2730
5548+(d) identify the sources of information used by the forensic evaluator and present the
5549+2731
5550+basis for the forensic evaluator's clinical findings and opinions.
5551+2732
5552+(10)(a) Any statement made by the defendant in the course of any competency
5553+2733
5554+examination, whether the examination is with or without the consent of the
5555+2734
5556+defendant, any testimony by a forensic evaluator based upon the statement, and any
5557+2735
5558+other fruits of the statement may not be admitted in evidence against the defendant in
5559+2736
5560+any criminal proceeding except on an issue respecting mental condition on which the
5561+2737
5562+defendant has introduced evidence, unless the evidence is relevant to a determination
5563+2738
5564+of the defendant's competency.
5565+2739
5566+(b) Before examining the defendant, the forensic evaluator shall specifically advise the
5567+2740
5568+defendant of the limits of confidentiality as provided under Subsection (10)(a).
5569+2741
5570+(11)(a) Upon receipt of the forensic evaluators' reports, the court shall set a date for a
5571+2742
5572+competency hearing. The hearing shall be held not less than five and not more than
5573+2743
5574+15 days after the day on which the court received the forensic evaluators' reports,
5575+2744
5576+unless for good cause the court sets a later date.
5577+2745
5578+(b) Any person directed by the department to conduct the competency evaluation may be
5579+2746
5580+subpoenaed to testify at the hearing.
5581+2747
5582+(c) The court may call any forensic evaluator to testify at the hearing who is not called
5583+2748
5584+by the parties. [ ]If the court calls a forensic evaluator, counsel for the parties may
5585+- 81 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5586+2749
5587+cross-examine the forensic evaluator.
5588+2750
5589+(d)(i) If the forensic evaluators are in conflict as to the competency of the defendant,
5590+2751
5591+all forensic evaluators should be called to testify at the hearing if reasonably
5592+2752
5593+available.
5594+2753
5595+(ii) A conflict in the opinions of the forensic evaluators does not require the
5596+2754
5597+appointment of an additional forensic evaluator unless the court finds good cause
5598+2755
5599+for the appointment.
5600+2756
5601+(iii) If a party seeks an additional competency evaluation under this Subsection (11),
5602+2757
5603+that party shall:
5604+2758
5605+(A) select the additional forensic evaluator; and
5606+2759
5607+(B) pay the costs of the additional forensic evaluator.
5608+2760
5609+(12)(a)(i) A defendant shall be presumed competent to stand trial unless the court, by
5610+2761
5611+a preponderance of the evidence, finds the defendant incompetent to proceed.
5612+2762
5613+(ii) The burden of proof is upon the proponent of incompetency at the hearing.
5614+2763
5615+(b) An adjudication of incompetent to proceed does not operate as an adjudication of
5616+2764
5617+incompetency to give informed consent for medical treatment or for any other
5618+2765
5619+purpose, unless specifically set forth in the court order.
5620+2766
5621+(13) In determining the defendant's competency to stand trial, the court shall consider the
5622+2767
5623+totality of the circumstances, including:
5624+2768
5625+(a) the petition;
5626+2769
5627+(b) the defendant's criminal and arrest history;
5628+2770
5629+(c) prior mental health evaluations and treatments provided to the court by the defendant;
5630+2771
5631+(d) subject to Subsection (15), whether the defendant was found incompetent to proceed
5632+2772
5633+in a criminal action unrelated to the charged offense for which the petition is filed;
5634+2773
5635+(e) the testimony of lay witnesses, if any;
5636+2774
5637+(f) the forensic evaluator's testimony and report;
5638+2775
5639+(g) the materials on which the forensic evaluator's report is based; and
5640+2776
5641+(h) any other relevant evidence or consideration bearing on the competency of the
5642+2777
5643+defendant.
5644+2778
5645+(14) If the court finds the defendant incompetent to proceed:
5646+2779
5647+(a) the court shall issue the order described in Subsection 77-15-6(1), which shall:
5648+2780
5649+(i) include findings addressing each of the factors in Subsection (6)(a);
5650+2781
5651+(ii) include a transportation order, if necessary;
5652+2782
5653+(iii) be accompanied by the forensic evaluators' reports, any psychiatric,
5654+- 82 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5655+2783
5656+psychological, or social work reports submitted to the court relative to the mental
5657+2784
5658+condition of the defendant, and any other documents made available to the court
5659+2785
5660+by either the defense or the prosecution, pertaining to the defendant's current or
5661+2786
5662+past mental condition; and
5663+2787
5664+(iv) be sent by the court to the department; and
5665+2788
5666+(b) the prosecuting attorney shall provide to the department:
5667+2789
5668+(i) the charging document and probable cause statement, if any;
5669+2790
5670+(ii) arrest or incident reports prepared by law enforcement and pertaining to the
5671+2791
5672+charged offense; and
5673+2792
5674+(iii) additional supporting documents.
5675+2793
5676+(15) The court may not find the defendant incompetent to proceed based solely on a court
5677+2794
5678+having ordered the release of the defendant under Section 77-15-3.5 or Section 77-15-6
5679+2795
5680+in an unrelated criminal action if the court in the unrelated criminal action ordered the
5681+2796
5682+release more than one year before the day on which the petition described in Subsection
5683+2797
5684+(13)(a) is filed.
5685+2798
5686+(16) The court may make any reasonable order to ensure compliance with this section.
5687+2799
5688+(17) Failure to comply with this section does not result in the dismissal of criminal charges.
5689+2800
5690+Section 33. Section 77-15-6 is amended to read:
5691+2801
5692+77-15-6 . Commitment on finding of incompetency to stand trial -- Subsequent
5693+2802
5694+hearings -- Notice to prosecuting attorneys.
5695+2803
5696+(1)(a) Except as provided in Subsection (5), if after a hearing a court finds a defendant to
5697+2804
5698+be incompetent to proceed, the court shall order the defendant committed to the
5699+2805
5700+department for restoration treatment.
5701+2806
5702+(b)(i) Except as provided in Subsection (1)(b)(ii), the court may recommend but may
5703+2807
5704+not order placement of a defendant who is found incompetent to proceed.
5705+2808
5706+(ii) The court may order that the defendant be placed in a secure setting rather than a
5707+2809
5708+nonsecure setting.
5709+2810
5710+(c) Following restoration screening, the department's designee shall designate and
5711+2811
5712+inform the court of the specific placement and restoration treatment program for the
5713+2812
5714+defendant.
5715+2813
5716+(d) Restoration treatment shall be of sufficient scope and duration to:
5717+2814
5718+(i) restore the defendant to competency; or
5719+2815
5720+(ii) determine whether the defendant can be restored to competency in the foreseeable
5721+2816
5722+future.
5723+- 83 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5724+2817
5725+(e) A defendant who a court determines is incompetent to proceed may not be held for
5726+2818
5727+restoration treatment longer than:
5728+2819
5729+(i) the time reasonably necessary to determine that the defendant cannot become
5730+2820
5731+competent to stand trial in the foreseeable future; and
5732+2821
5733+(ii) the maximum period of incarceration that the defendant could receive if the
5734+2822
5735+defendant were convicted of the most severe offense of the offenses charged.
5736+2823
5737+(2)(a) A defendant who is receiving restoration treatment shall receive a progress toward
5738+2824
5739+competency evaluation, by:
5740+2825
5741+(i) a forensic evaluator, designated by the department; and
5742+2826
5743+(ii) an additional forensic evaluator, if requested by a party and paid for by the
5744+2827
5745+requesting party.
5746+2828
5747+(b) A forensic evaluator shall complete a progress toward competency evaluation and
5748+2829
5749+submit a report within 90 days after the day on which the forensic evaluator receives
5750+2830
5751+the commitment order from the department.
5752+2831
5753+(c) The report shall:
5754+2832
5755+(i) assess whether the defendant is exhibiting false or exaggerated physical or
5756+2833
5757+psychological symptoms;
5758+2834
5759+(ii) describe any diagnostic instruments, methods, and observations used by the
5760+2835
5761+evaluator to make the determination;
5762+2836
5763+(iii) describe the defendant's current mental illness or intellectual disability, if any;
5764+2837
5765+(iv) state the forensic evaluator's opinion as to the effect of any false or exaggerated
5766+2838
5767+symptoms on the defendant's competency to stand trial;
5768+2839
5769+(v) assess the facility's or program's capacity to provide appropriate restoration
5770+2840
5771+treatment for the defendant;
5772+2841
5773+(vi) assess the nature of restoration treatment provided to the defendant;
5774+2842
5775+(vii) assess what progress the defendant has made toward competency restoration,
5776+2843
5777+with respect to the factors identified by the court in its initial order;
5778+2844
5779+(viii) assess whether the defendant can reasonably be restored to competency in the
5780+2845
5781+foreseeable future given the restoration treatment currently being provided and the
5782+2846
5783+facility's or program's capacity to provide appropriate restoration treatment for the
5784+2847
5785+defendant;
5786+2848
5787+(ix) assess the likelihood of restoration to competency, the amount of time estimated
5788+2849
5789+to achieve competency, or the amount of time estimated to determine whether
5790+2850
5791+restoration to competency may be achieved; and
5792+- 84 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5793+2851
5794+(x) include a statement by the facility's treating physician regarding:
5795+2852
5796+(A) whether the defendant is taking any antipsychotic medication as prescribed;
5797+2853
5798+(B) whether ongoing administration of antipsychotic medication is necessary to
5799+2854
5800+maintain the defendant's competency to stand trial;
5801+2855
5802+(C) whether antipsychotic medication is substantially likely to maintain the
5803+2856
5804+defendant's competency to stand trial;
5805+2857
5806+(D) whether antipsychotic medication is substantially unlikely to produce side
5807+2858
5808+effects which would significantly interfere with the defendant's ability to assist
5809+2859
5810+in the defendant's defense;
5811+2860
5812+(E) that no less intrusive means are available, and whether any of those means
5813+2861
5814+have been attempted to render the defendant competent; and
5815+2862
5816+(F) whether antipsychotic medication is medically appropriate and in the
5817+2863
5818+defendant's best medical interest in light of the defendant's medical condition.
5819+2864
5820+(3)(a) The court on its own motion or upon motion by either party or the department
5821+2865
5822+may appoint an additional forensic evaluator to conduct a progress toward
5823+2866
5824+competency evaluation.
5825+2867
5826+(b) If the court appoints an additional forensic evaluator upon motion of a party, that
5827+2868
5828+party shall pay the costs of the additional forensic evaluator.
5829+2869
5830+(4)(a) Within 15 days after the day on which the court receives the forensic evaluator's
5831+2870
5832+report of the progress toward competency evaluation, the court shall hold a hearing to
5833+2871
5834+review the defendant's competency.
5835+2872
5836+(b) At the hearing, the burden of proving that the defendant is competent to stand trial is
5837+2873
5838+on the proponent of competency.
5839+2874
5840+(c) Following the hearing, the court shall determine by a preponderance of evidence
5841+2875
5842+whether the defendant:
5843+2876
5844+(i) is competent to stand trial;
5845+2877
5846+(ii) is competent, but requires the ongoing administration of antipsychotic medication
5847+2878
5848+in order to maintain the defendant's competency to stand trial;
5849+2879
5850+(iii) is incompetent to proceed, with a substantial probability that the defendant may
5851+2880
5852+become competent in the foreseeable future; or
5853+2881
5854+(iv) is incompetent to proceed, without a substantial probability that the defendant
5855+2882
5856+may become competent in the foreseeable future.
5857+2883
5858+(5)(a) If at any time the court determines that the defendant is competent to stand trial,
5859+2884
5860+the court shall:
5861+- 85 - 1st Sub. (Buff) H.B. 334 03-07 11:11
5862+2885
5863+(i) proceed with the trial or other procedures as may be necessary to adjudicate the
5864+2886
5865+charges;
5866+2887
5867+(ii) order that the defendant be returned to the placement and status that the defendant
5868+2888
5869+was in at the time when the petition for the adjudication of competency was filed
5870+2889
5871+or raised by the court, unless the court determines that placement of the defendant
5872+2890
5873+in a less restrictive environment is more appropriate;
5874+2891
5875+(iii) order the ongoing administration of antipsychotic medication to the defendant for
5876+2892
5877+the purpose of maintaining the defendant's competency to stand trial, if the court
5878+2893
5879+finds that the administration of antipsychotic medication is necessary to maintain
5880+2894
5881+the defendant's competency to stand trial under Subsection (4)(c)(ii); and
5882+2895
5883+(iv) require the agency, jail, or prison with custody over the defendant to report to the
5884+2896
5885+court any noncompliance with the court's orders under this Subsection (5) within
5886+2897
5887+48 hours of the noncompliance.
5888+2898
5889+(b) If the court determines that the defendant is incompetent to proceed with a
5890+2899
5891+substantial probability that the defendant may become competent in the foreseeable
5892+2900
5893+future, the court may order that the defendant remain committed to the department or
5894+2901
5895+the department's designee for the purpose of restoration treatment.
5896+2902
5897+(c)(i) If the court determines that the defendant is incompetent to proceed without a
5898+2903
5899+substantial probability that the defendant may become competent in the
5900+2904
5901+foreseeable future, the court shall order the defendant released from commitment
5902+2905
5903+to the department, unless the prosecutor or another individual informs the court
5904+2906
5905+that civil commitment proceedings pursuant to Title 26B, Chapter 5, Health Care -
5906+2907
5907+Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of
5908+2908
5909+Services for People with Disabilities, will be initiated.
5910+2909
5911+(ii) The commitment proceedings must be initiated by a petition filed within seven
5912+2910
5913+days after the day on which the court makes the determination described in
5914+2911
5915+Subsection (4)(c)(iv), unless the court finds that there is good cause to delay the
5916+2912
5917+initiation of the civil commitment proceedings.
5918+2913
5919+(iii) The court may order the defendant to remain committed to the department until
5920+2914
5921+the civil commitment proceedings conclude.
5922+2915
5923+(iv) If the defendant is civilly committed and admitted to a secure setting, the
5924+2916
5925+department shall provide notice to the court that adjudicated the defendant
5926+2917
5927+incompetent to proceed and to the prosecution agency that prosecuted the case at
5928+2918
5929+least [60] 15 days before any proposed release of the committed individual from
5930+- 86 - 03-07 11:11 1st Sub. (Buff) H.B. 334
5931+2919
5932+the secure setting.
5933+2920
5934+(v) If the prosecution agency that prosecuted the case intends to refile charges against
5935+2921
5936+the committed individual:
5937+2922
5938+(A) the prosecution agency shall provide written notice of that intent to the
5939+2923
5940+department within 15 days after the department provides the notice described
5941+2924
5942+in Subsection (5)(c)(iv); and
5943+2925
5944+(B) the department shall postpone release of the committed individual for at least
5945+2926
5946+30 days after the day on which the department receives the written notice of
5947+2927
5948+intent from the prosecution agency.
5949+2928
5950+(vi) If the prosecution agency that prosecuted the case refiles charges against the
5951+2929
5952+committed individual and the individual's competency is raised, the department
5953+2930
5954+shall postpone release of the individual until the competency proceedings
5955+2931
5956+conclude.
5957+2932
5958+(6)(a) At any time following the court's order under Subsection (5)(a)(iii), the defendant,
5959+2933
5960+the prosecuting attorney, the department, the treating physician, or the agency, jail, or
5961+2934
5962+prison with custody over the defendant, may notify the court of the need to review
5963+2935
5964+the medication order under Subsection (5)(a)(iii) for continued appropriateness and
5965+2936
5966+feasibility.
5967+2937
5968+(b) The court shall set the matter for a hearing if the notification under Subsection (6)(a)
5969+2938
5970+establishes good cause to review the matter.
5971+2939
5972+(7) If a court, under Subsection (5)(b), extends a defendant's commitment, the court shall
5973+2940
5974+schedule a competency review hearing for the earlier of:
5975+2941
5976+(a) the department's best estimate of when the defendant may be restored to competency;
5977+2942
5978+or
5979+2943
5980+(b) three months after the day on which the court determined under Subsection (5)(b) to
5981+2944
5982+extend the defendant's commitment.
5983+2945
5984+(8) Unless the defendant is charged with a crime listed in Subsection (9), if a defendant is
5985+2946
5986+incompetent to proceed by the day of the competency review hearing that follows the
5987+2947
5988+extension of a defendant's commitment, the court shall:
5989+2948
5990+(a) order the defendant be:
5991+2949
5992+(i) released or temporarily detained pending civil commitment proceedings as
5993+2950
5994+described in Subsection (5)(c); and
5995+2951
5996+(ii) terminate the defendant's commitment to the department for restoration treatment;
5997+2952
5998+or
5999+- 87 - 1st Sub. (Buff) H.B. 334 03-07 11:11
6000+2953
6001+(b) if the forensic evaluator reports to the court that there is a substantial probability that
6002+2954
6003+restoration treatment will bring the defendant to competency to stand trial in the
6004+2955
6005+foreseeable future, extend the defendant's commitment for restoration treatment up to
6006+2956
6007+45 additional days.
6008+2957
6009+(9) If the defendant is charged with aggravated murder, murder, attempted murder,
6010+2958
6011+manslaughter, or a first degree felony and the court determines that the defendant is
6012+2959
6013+making reasonable progress towards restoration of competency at the time of the hearing
6014+2960
6015+held pursuant to Subsection (7), the court may extend the commitment for a period not
6016+2961
6017+to exceed nine months for the purpose of restoration treatment, with a mandatory review
6018+2962
6019+hearing at the end of the nine-month period.
6020+2963
6021+(10) Unless the defendant is charged with aggravated murder or murder, if, at the
6022+2964
6023+nine-month review hearing described in Subsection (9), the court determines that the
6024+2965
6025+defendant is incompetent to proceed, the court shall:
6026+2966
6027+(a)(i) order the defendant be released or temporarily detained pending civil
6028+2967
6029+commitment proceedings as provided in Subsection (5)(c); and
6030+2968
6031+(ii) terminate the defendant's commitment to the department for restoration treatment;
6032+2969
6033+or
6034+2970
6035+(b) if the forensic evaluator reports to the court that there is a substantial probability that
6036+2971
6037+restoration treatment will bring the defendant to competency to stand trial in the
6038+2972
6039+foreseeable future, extend the defendant's commitment for restoration treatment for
6040+2973
6041+up to 135 additional days.
6042+2974
6043+(11) If the defendant is charged with aggravated murder or murder and the court determines
6044+2975
6045+that the defendant is making reasonable progress towards restoration of competency at
6046+2976
6047+the time of the nine-month review hearing described in Subsection (9), the court may
6048+2977
6049+extend the commitment for a period not to exceed 24 months for the purpose of
6050+2978
6051+restoration treatment.
6052+2979
6053+(12) If the court extends the defendant's commitment term under Subsection (11), the court
6054+2980
6055+shall hold a hearing no less frequently than at 12-month intervals following the
6056+2981
6057+extension for the purpose of determining the defendant's competency status.
6058+2982
6059+(13) If, at the end of the 24-month commitment period described in Subsection (11), the
6060+2983
6061+court determines that the defendant is incompetent to proceed, the court shall:
6062+2984
6063+(a)(i) order the defendant be released or temporarily detained pending civil
6064+2985
6065+commitment proceedings as provided in Subsection (5)(c); and
6066+2986
6067+(ii) terminate the defendant's commitment to the department for restoration treatment;
6068+- 88 - 03-07 11:11 1st Sub. (Buff) H.B. 334
6069+2987
6070+or
6071+2988
6072+(b) if the forensic evaluator reports to the court that there is a substantial probability that
6073+2989
6074+restoration treatment will bring the defendant to competency to stand trial in the
6075+2990
6076+foreseeable future, extend the defendant's commitment for restoration treatment for
6077+2991
6078+up to 12 additional months.
6079+2992
6080+(14)(a) Neither release from a pretrial incompetency commitment under the provisions
6081+2993
6082+of this section nor civil commitment requires dismissal of criminal charges.
6083+2994
6084+(b) The court may retain jurisdiction over the criminal case and may order periodic
6085+2995
6086+reviews.
6087+2996
6088+(15) A defendant who is civilly committed pursuant to Title 26B, Chapter 5, Health Care -
6089+2997
6090+Substance Use and Mental Health, or Title 26B, Chapter 6, Part 4, Division of Services
6091+2998
6092+for People with Disabilities, may still be adjudicated competent to stand trial under this
6093+2999
6094+chapter.
6095+3000
6096+(16)(a) The remedy for a violation of the time periods specified in this section, other
6097+3001
6098+than those specified in Subsection (5)(c), (8), (10), or (13), shall be a motion to
6099+3002
6100+compel the hearing, or mandamus, but not release from detention or dismissal of the
6101+3003
6102+criminal charges.
6103+3004
6104+(b) The remedy for a violation of the time periods specified in Subsection (5)(c), (8), (9),
6105+3005
6106+or (13), or is not dismissal of the criminal charges.
6107+3006
6108+(17) In cases in which the treatment of the defendant is precluded by court order for a
6109+3007
6110+period of time, that time period may not be considered in computing time limitations
6111+3008
6112+under this section.
6113+3009
6114+(18)(a) If, at any time, the defendant becomes competent to stand trial while the
6115+3010
6116+defendant is committed to the department, the clinical director of the Utah State
6117+3011
6118+Hospital, the department, or the department's designee shall certify that fact to the
6119+3012
6120+court.
6121+3013
6122+(b) The court shall conduct a competency review hearing:
6123+3014
6124+(i) within 15 working days after the day on which the court receives the certification
6125+3015
6126+described in Subsection (18)(a); or
6127+3016
6128+(ii) within 30 working days after the day on which the court receives the certification
6129+3017
6130+described in Subsection (18)(a), if the court determines that more than 15 working
6131+3018
6132+days are necessary for good cause related to the defendant's competency.
6133+3019
6134+(19) The court may order a hearing at any time on the court's own motion or upon
6135+3020
6136+recommendations of the clinical director of the Utah State Hospital or other facility or
6137+- 89 - 1st Sub. (Buff) H.B. 334 03-07 11:11
6138+3021
6139+the department.
6140+3022
6141+(20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
6142+3023
6143+attorney and all counsel of record.
6144+3024
6145+Section 34. Section 77-19-203 is amended to read:
6146+3025
6147+77-19-203 . Petition for inquiry as to competency to be executed -- Filing --
6148+3026
6149+Contents -- Successive petitions.
6150+3027
6151+(1) If an inmate who has been sentenced to death is or becomes incompetent to be executed,
6152+3028
6153+a petition under Subsection (2) may be filed in the district court of the county where the
6154+3029
6155+inmate is confined.
6156+3030
6157+(2) The petition shall:
6158+3031
6159+(a) contain a certificate stating that it is filed in good faith and on reasonable grounds to
6160+3032
6161+believe the inmate is incompetent to be executed; and
6162+3033
6163+(b) contain a specific recital of the facts, observations, and conversations with the inmate
6164+3034
6165+that form the basis for the petition.
6166+3035
6167+(3) The petition may be based upon knowledge or information and belief and may be filed
6168+3036
6169+by the inmate alleged to be incompetent, legal counsel for the inmate, or by an attorney
6170+3037
6171+representing the state.
6172+3038
6173+(4) Before ruling on a petition filed by an inmate or his counsel alleging that the inmate is
6174+3039
6175+incompetent to be executed, the court shall give the state and the Department of
6176+3040
6177+Corrections an opportunity to respond to the allegations of incompetency.
6178+3041
6179+(5) If a petition is filed after an inmate has previously been found competent under either
6180+3042
6181+this chapter or under [Title 77, Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
6182+3043
6183+Defendant's Competency to Proceed, no further hearing on competency may be granted
6184+3044
6185+unless the successive petition:
6186+3045
6187+(a) alleges with specificity a substantial change of circumstances subsequent to the
6188+3046
6189+previous determination of competency; and
6190+3047
6191+(b) is sufficient to raise a significant question about the inmate's competency to be
6192+3048
6193+executed.
6194+3049
6195+Section 35. Section 77-29-3 is amended to read:
6196+3050
6197+77-29-3 . Chapter inapplicable to incompetent persons.
6198+3051
6199+ The provisions of this chapter shall not apply to any person while adjudged to be
6200+3052
6201+incompetent to proceed under [Chapter 15, Inquiry into Sanity of Defendant] Chapter 15,
6202+3053
6203+Defendant's Competency to Proceed.
6204+3054
6205+Section 36. Section 80-6-402 is amended to read:
6206+- 90 - 03-07 11:11 1st Sub. (Buff) H.B. 334
6207+3055
6208+80-6-402 . Procedure -- Standard.
6209+3056
6210+(1) When a written motion is filed in accordance with Section 80-6-401 [ ]raising the issue
6211+3057
6212+of a minor's competency to proceed, or when the juvenile [ ]court raises the issue of a
6213+3058
6214+minor's competency to proceed, the juvenile court shall stay all proceedings under this
6215+3059
6216+chapter .
6217+3060
6218+(2)(a) If a motion for inquiry is opposed by either party, the juvenile [ ]court shall,
6219+3061
6220+before granting or denying the motion, hold a limited hearing solely for the purpose
6221+3062
6222+of determining the sufficiency of the motion.
6223+3063
6224+(b) If the juvenile [ ]court finds that the allegations of incompetency raise a bona fide
6225+3064
6226+doubt as to the minor's competency to proceed, the juvenile court shall:
6227+3065
6228+(i) enter an order for an evaluation of the minor's competency to proceed; and
6229+3066
6230+(ii) set a date for a hearing on the issue of the minor's competency.
6231+3067
6232+(3)(a) After the granting of a motion, and before a full competency hearing, the juvenile [ ]
6233+3068
6234+court may order the department to evaluate the minor and to report to the juvenile [ ]
6235+3069
6236+court concerning the minor's mental condition.
6237+3070
6238+(b) In accordance with state licensing laws, the court may only order the department to
6239+3071
6240+provide an initial evaluation and progress toward competency evaluation for a minor
6241+3072
6242+who is located within the state.
6243+3073
6244+(4) The minor shall be evaluated by a forensic evaluator who:
6245+3074
6246+(a) has experience in juvenile forensic evaluations and juvenile brain development;
6247+3075
6248+(b) if it becomes apparent that the minor is not competent due to an intellectual disability
6249+3076
6250+or related condition, has experience in intellectual disability or related conditions; and
6251+3077
6252+(c) is not involved in the current treatment of the minor.
6253+3078
6254+(5) The petitioner or other party, as directed by the juvenile court, shall provide all
6255+3079
6256+information and materials relevant to a determination of the minor's competency to the
6257+3080
6258+department within seven days of the juvenile court's order, including:
6259+3081
6260+(a) the motion;
6261+3082
6262+(b) the arrest or incident reports pertaining to the charged offense;
6263+3083
6264+(c) the minor's known delinquency history information;
6265+3084
6266+(d) the minor's probation record relevant to competency;
6267+3085
6268+(e) known prior mental health evaluations and treatments; and
6269+3086
6270+(f) consistent with 20 U.S.C. Sec. 1232g (b)(1)(E)(ii)(I), records pertaining to the
6271+3087
6272+minor's education.
6273+3088
6274+(6)(a) The minor's parent or guardian, the prosecuting attorney, the defense attorney, and
6275+- 91 - 1st Sub. (Buff) H.B. 334 03-07 11:11
6276+3089
6277+the attorney guardian ad litem, shall cooperate, by executing releases of information
6278+3090
6279+when necessary, in providing the relevant information and materials to the forensic
6280+3091
6281+evaluator, including:
6282+3092
6283+(i) medical records;
6284+3093
6285+(ii) prior mental evaluations; or
6286+3094
6287+(iii) records of diagnosis or treatment of substance abuse disorders.
6288+3095
6289+(b) The minor shall cooperate, by executing a release of information when necessary, in
6290+3096
6291+providing the relevant information and materials to the forensic evaluator regarding
6292+3097
6293+records of diagnosis or treatment of a substance abuse disorder.
6294+3098
6295+(7)(a) In conducting the evaluation and in the report determining if a minor is competent
6296+3099
6297+to proceed, the forensic evaluator shall inform the juvenile court of the forensic
6298+3100
6299+evaluator's opinion whether:
6300+3101
6301+(i) the minor has a present ability to consult with counsel with a reasonable degree of
6302+3102
6303+rational understanding; and
6304+3103
6305+(ii) the minor has a rational as well as factual understanding of the proceedings.
6306+3104
6307+(b) In evaluating the minor, the forensic evaluator shall consider the minor's present
6308+3105
6309+ability to:
6310+3106
6311+(i) understand the charges or allegations against the minor;
6312+3107
6313+(ii) communicate facts, events, and states of mind;
6314+3108
6315+(iii) understand the range of possible penalties associated with the allegations against
6316+3109
6317+the minor;
6318+3110
6319+(iv) engage in reasoned choice of legal strategies and options;
6320+3111
6321+(v) understand the adversarial nature of the proceedings against the minor;
6322+3112
6323+(vi) manifest behavior sufficient to allow the juvenile court to proceed;
6324+3113
6325+(vii) testify relevantly; and
6326+3114
6327+(viii) any other factor determined to be relevant to the forensic evaluator.
6328+3115
6329+(8)(a) The forensic evaluator shall provide an initial report to the juvenile court, the
6330+3116
6331+prosecuting and defense attorneys, and the attorney guardian ad litem, if applicable,
6332+3117
6333+within 30 days of the receipt of the juvenile court's order.
6334+3118
6335+(b) If the forensic evaluator informs the juvenile court that additional time is needed, the
6336+3119
6337+juvenile court may grant, taking into consideration the custody status of the minor, up
6338+3120
6339+to an additional 15 days to provide the report to the juvenile court and counsel.
6340+3121
6341+(c) The forensic evaluator must provide the report within 45 days from the receipt of the
6342+3122
6343+juvenile court's order unless, for good cause shown, the juvenile court authorizes an
6344+- 92 - 03-07 11:11 1st Sub. (Buff) H.B. 334
6345+3123
6346+additional period of time to complete the evaluation and provide the report.
6347+3124
6348+(d) The report shall inform the juvenile court of the forensic evaluator's opinion
6349+3125
6350+concerning the minor's competency.
6351+3126
6352+(9) If the forensic evaluator's opinion is that the minor is not competent to proceed, the
6353+3127
6354+report shall indicate:
6355+3128
6356+(a) the nature of the minor's:
6357+3129
6358+(i) mental illness;
6359+3130
6360+(ii) intellectual disability or related condition; or
6361+3131
6362+(iii) developmental immaturity;
6363+3132
6364+(b) the relationship of the minor's mental illness, intellectual disability, related condition,
6365+3133
6366+or developmental immaturity to the minor's incompetence;
6367+3134
6368+(c) whether there is a substantial likelihood that the minor may attain competency in the
6369+3135
6370+foreseeable future;
6371+3136
6372+(d) the amount of time estimated for the minor to achieve competency if the minor
6373+3137
6374+undergoes competency attainment treatment, including medication;
6375+3138
6376+(e) the sources of information used by the forensic evaluator; and
6377+3139
6378+(f) the basis for clinical findings and opinions.
6379+3140
6380+(10) Regardless of whether a minor consents to a competency evaluation, any statement
6381+3141
6382+made by the minor in the course of the competency evaluation, any testimony by the
6383+3142
6384+forensic evaluator based upon any statement made by the minor in the competency
6385+3143
6386+evaluation, and any other fruits of the statement made by the minor in the competency
6387+3144
6388+evaluation:
6389+3145
6390+(a) may not be admitted in evidence against the minor in a proceeding under this
6391+3146
6392+chapter, except the statement may be admitted on an issue respecting the mental
6393+3147
6394+condition on which the minor has introduced evidence; and
6395+3148
6396+(b) may be admitted where relevant to a determination of the minor's competency.
6397+3149
6398+(11) Before evaluating the minor for a competency evaluation, a forensic evaluator shall
6399+3150
6400+specifically advise the minor, and the minor's parent or guardian if reasonably available,
6401+3151
6402+of the limits of confidentiality as provided under Subsection (10).
6403+3152
6404+(12) When the report is received, the juvenile court shall set a date for a competency
6405+3153
6406+hearing that shall be held in not less than five and not more than 15 days, unless the
6407+3154
6408+juvenile court enlarges the time for good cause.
6409+3155
6410+(13)(a) A minor shall be presumed competent unless the juvenile court, by a
6411+3156
6412+preponderance of the evidence, finds the minor not competent to proceed.
6413+- 93 - 1st Sub. (Buff) H.B. 334 03-07 11:11
6414+3157
6415+(b) The burden of proof is upon the proponent of incompetency to proceed.
6416+3158
6417+(14)(a) Following the hearing, the juvenile court shall determine by a preponderance of
6418+3159
6419+evidence whether the minor is:
6420+3160
6421+(i) competent to proceed;
6422+3161
6423+(ii) not competent to proceed with a substantial probability that the minor may attain
6424+3162
6425+competency in the foreseeable future; or
6426+3163
6427+(iii) not competent to proceed without a substantial probability that the minor may
6428+3164
6429+attain competency in the foreseeable future.
6430+3165
6431+(b) If the juvenile court enters a finding described in Subsection (14)(a)(i), the juvenile
6432+3166
6433+court shall proceed with the proceedings in the minor's case.
6434+3167
6435+(c) If the juvenile court enters a finding described in Subsection (14)(a)(ii), the juvenile
6436+3168
6437+court shall proceed in accordance with Section 80-6-403.
6438+3169
6439+(d)(i) If the juvenile court enters a finding described in Subsection (14)(a)(iii), the
6440+3170
6441+juvenile court shall terminate the competency proceeding, dismiss the charges
6442+3171
6443+against the minor without prejudice, and release the minor from any custody order
6444+3172
6445+related to the pending proceeding, unless the prosecutor informs the court that
6446+3173
6447+commitment proceedings will be initiated in accordance with:
6448+3174
6449+(A) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
6450+3175
6451+People with an Intellectual Disability;
6452+3176
6453+(B) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
6454+3177
6455+Hospital and Other Mental Health Facilities; or
6456+3178
6457+(C) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
6458+3179
6459+Under Age 18.
6460+3180
6461+(ii) The commitment proceedings described in Subsection (14)(d)(i) shall be initiated
6462+3181
6463+within seven days after the day on which the juvenile court enters the order under
6464+3182
6465+Subsection (14)(a), unless the court enlarges the time for good cause shown.
6466+3183
6467+(iii) The juvenile court may order the minor to remain in custody until the
6468+3184
6469+commitment proceedings have been concluded.
6470+3185
6471+(15) If the juvenile court finds the minor not competent to proceed, the juvenile court's
6472+3186
6473+order shall contain findings addressing each of the factors in Subsection (7)(b).
6474+3187
6475+Section 37. Section 80-6-403 is amended to read:
6476+3188
6477+80-6-403 . Disposition on finding of not competent to proceed -- Subsequent
6478+3189
6479+hearings -- Notice to prosecuting attorneys.
6480+3190
6481+(1) If the juvenile court determines that the minor is not competent to proceed, and there is
6482+- 94 - 03-07 11:11 1st Sub. (Buff) H.B. 334
6483+3191
6484+a substantial likelihood that the minor may attain competency in the foreseeable future,
6485+3192
6486+the juvenile court shall notify the department of the finding and allow the department 30
6487+3193
6488+days to develop an attainment plan for the minor.
6489+3194
6490+(2) The attainment plan shall include:
6491+3195
6492+(a) any services or treatment the minor has been or is currently receiving that are
6493+3196
6494+necessary to attain competency;
6495+3197
6496+(b) any additional services or treatment the minor may require to attain competency;
6497+3198
6498+(c) an assessment of the parent, custodian, or guardian's ability to access or provide any
6499+3199
6500+recommended treatment or services;
6501+3200
6502+(d) any special conditions or supervision that may be necessary for the safety of the
6503+3201
6504+minor or others during the attainment period; and
6505+3202
6506+(e) the likelihood that the minor will attain competency and the amount of time likely
6507+3203
6508+required for the minor to attain competency.
6509+3204
6510+(3) The department shall provide the attainment plan to the juvenile court, the prosecuting
6511+3205
6512+attorney, the defense attorney, and the attorney guardian ad litem at least three days
6513+3206
6514+before the competency disposition hearing.
6515+3207
6516+(4)(a) During the attainment period, the minor shall remain in the least restrictive
6517+3208
6518+appropriate setting.
6519+3209
6520+(b) A finding of not competent to proceed does not grant authority for a juvenile court to
6521+3210
6522+place a minor in the custody of a division of the department, or create eligibility for
6523+3211
6524+services from the Division of Services for People With Disabilities.
6525+3212
6526+(c) If the juvenile court orders the minor to be held in detention during the attainment
6527+3213
6528+period, the juvenile court shall make the following findings on the record:
6529+3214
6530+(i) the placement is the least restrictive appropriate setting;
6531+3215
6532+(ii) the placement is in the best interest of the minor;
6533+3216
6534+(iii) the minor will have access to the services and treatment required by the
6535+3217
6536+attainment plan in the placement; and
6537+3218
6538+(iv) the placement is necessary for the safety of the minor or others.
6539+3219
6540+(d) A juvenile court shall terminate an order of detention related to the pending
6541+3220
6542+proceeding for a minor who is not competent to proceed in that matter if:
6543+3221
6544+(i) the most severe allegation against the minor if committed by an adult is a class B
6545+3222
6546+misdemeanor;
6547+3223
6548+(ii) more than 60 days have passed after the day on which the juvenile court
6549+3224
6550+adjudicated the minor not competent to proceed; and
6551+- 95 - 1st Sub. (Buff) H.B. 334 03-07 11:11
6552+3225
6553+(iii) the minor has not attained competency.
6554+3226
6555+(5)(a) At any time that the minor becomes competent to proceed during the attainment
6556+3227
6557+period, the department shall notify the juvenile court, the prosecuting attorney, the
6558+3228
6559+defense attorney, and the attorney guardian ad litem.
6560+3229
6561+(b) The juvenile court shall hold a hearing with 15 business days of notice from the
6562+3230
6563+department described in Subsection (5)(a).
6564+3231
6565+(6)(a) If at any time during the attainment period the juvenile court finds that there is not
6566+3232
6567+a substantial probability that the minor will attain competency in the foreseeable
6568+3233
6569+future, the juvenile court shall terminate the competency proceeding, dismiss the
6570+3234
6571+petition or information without prejudice, and release the minor from any custody
6572+3235
6573+order related to the pending proceeding, unless the prosecuting attorney or any other
6574+3236
6575+individual informs the juvenile court that commitment proceedings will be initiated in
6576+3237
6577+accordance with:
6578+3238
6579+(i) Title 26B, Chapter 6, Part 6, Admission to an Intermediate Care Facility for
6580+3239
6581+People with an Intellectual Disability;
6582+3240
6583+(ii) if the minor is 18 years old or older, Title 26B, Chapter 5, Part 3, Utah State
6584+3241
6585+Hospital and Other Mental Health Facilities; or
6586+3242
6587+(iii) if the minor is a child, Title 26B, Chapter 5, Part 4, Commitment of Persons
6588+3243
6589+Under Age 18.
6590+3244
6591+(b) The prosecuting attorney shall initiate the proceedings described in Subsection (6)(a)
6592+3245
6593+within seven days after the juvenile court's order, unless the juvenile court enlarges
6594+3246
6595+the time for good cause shown.
6596+3247
6597+(7) During the attainment period, the juvenile court may order a hearing or rehearing at
6598+3248
6599+anytime on the juvenile court's own motion or upon recommendation of any interested
6600+3249
6601+party or the department.
6602+3250
6603+(8)(a) Within three months of the juvenile court's approval of the attainment plan, the
6604+3251
6605+department shall provide a report on the minor's progress towards competence.
6606+3252
6607+(b) The report described in Subsection (8)(a) shall address the minor's:
6608+3253
6609+(i) compliance with the attainment plan;
6610+3254
6611+(ii) progress towards competency based on the issues identified in the original
6612+3255
6613+competency evaluation; and
6614+3256
6615+(iii) current mental illness, intellectual disability or related condition, or
6616+3257
6617+developmental immaturity, and need for treatment, if any, and whether there is
6618+3258
6619+substantial likelihood of the minor attaining competency within six months.
6620+- 96 - 03-07 11:11 1st Sub. (Buff) H.B. 334
6621+3259
6622+(9)(a) Within 30 days of receipt of the report, the juvenile court shall hold a hearing to
6623+3260
6624+determine the minor's current status.
6625+3261
6626+(b) At the hearing, the burden of proving the minor is competent is on the proponent of
6627+3262
6628+competency.
6629+3263
6630+(c) The juvenile court shall determine by a preponderance of the evidence whether the
6631+3264
6632+minor is competent to proceed.
6633+3265
6634+(10) If the minor has not attained competency after the initial three month attainment period
6635+3266
6636+but is showing reasonable progress towards attainment of competency, the juvenile court
6637+3267
6638+may extend the attainment period up to an additional three months.
6639+3268
6640+(11) The department shall provide an updated juvenile competency evaluation at the
6641+3269
6642+conclusion of the [six month] extended attainment period under Subsection (10) to advise
6643+3270
6644+the juvenile court on the minor's current competency status.
6645+3271
6646+(12) If the minor does not attain competency within six months after the juvenile court
6647+3272
6648+initially finds the minor not competent to proceed, the court shall terminate the
6649+3273
6650+competency proceedings and dismiss the petition or information filed without prejudice,
6651+3274
6652+unless good cause is shown that there is a substantial likelihood the minor will attain
6653+3275
6654+competency within one year from the initial finding of not competent to proceed.
6655+3276
6656+(13) In the event a minor has an unauthorized leave lasting more than 24 hours, the
6657+3277
6658+attainment period shall toll until the minor returns.
6659+3278
6660+(14)(a) Regardless of whether a minor consents to attainment, any statement made by
6661+3279
6662+the minor in the course of attainment, any testimony by the forensic evaluator based
6663+3280
6664+upon any statement made by the minor in the course of attainment, and any other
6665+3281
6666+fruits of a statement made by the minor in the course of attainment:
6667+3282
6668+(i) may not be admitted in evidence against the minor in a proceeding under this
6669+3283
6670+chapter, except the statement may be admitted on an issue respecting the mental
6671+3284
6672+condition on which the minor has introduced evidence; and
6673+3285
6674+(ii) may be admitted where relevant to a determination of the minor's competency.
6675+3286
6676+(b) Before evaluating the minor during the attainment period, a forensic evaluator shall
6677+3287
6678+specifically advise the minor, and the minor's parent or guardian if reasonably
6679+3288
6680+available, of the limits of confidentiality provided in Subsection (14)(a).
6681+3289
6682+Section 38. Effective Date.
6683+3290
21406684 This bill takes effect on May 7, 2025.
2141-- 32 -
6685+- 97 -