02-13 14:19 1st Sub. (Green) S.B. 199
Keven J. Stratton proposes the following substitute bill:
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Guardianship Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Keven J. Stratton
House Sponsor:
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LONG TITLE
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General Description:
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This bill addresses a guardianship for an individual with a severe intellectual disability.
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Highlighted Provisions:
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This bill:
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▸ defines terms for guardianship;
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▸ clarifies court jurisdiction for guardianships;
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▸ enacts a guardianship proceeding for an individual with a severe intellectual disability;
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▸ addresses the applicability of a guardianship proceeding for an individual with a severe
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intellectual disability;
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▸ enacts certain rights for an individual with a severe intellectual disability for which a full
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guardianship is imposed;
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▸ provides the requirements for a guardianship proceeding for an individual with a severe
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intellectual disability, including the requirements for the petition, venue, and in-person
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hearings;
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▸ addresses the appointment of:
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● an attorney for a respondent in a guardianship proceeding for an individual with a
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severe intellectual disability;
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● a physician, psychologist, physician assistant, or court visitor to examine the
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respondent; and
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● an emergency or temporary guardian while guardianship proceedings are pending;
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▸ provides that a court may appoint a guardian for a respondent if the court makes certain
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findings;
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▸ provides that the court shall prefer a full guardianship for an individual with a severe
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intellectual disability;
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▸ requires the court to include certain provisions in an order of appointment;
1st Sub. S.B. 199 1st Sub. (Green) S.B. 199 02-13 14:19
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▸ provides who may be a guardian for an individual with a severe intellectual disability;
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▸ addresses the duties, powers, and rights of a guardian for an individual with a severe
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intellectual disability in a full guardianship;
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▸ addresses the removal or resignation of a guardian for an individual with a severe
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intellectual disability;
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▸ addresses the termination of a guardianship for an individual with a severe intellectual
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disability; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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75-5-311, as last amended by Laws of Utah 2023, Chapter 330
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75-5-317, as enacted by Laws of Utah 2018, Chapter 294
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ENACTS:
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75-5-101.1, Utah Code Annotated 1953
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75-5-601, Utah Code Annotated 1953
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75-5-602, Utah Code Annotated 1953
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75-5-603, Utah Code Annotated 1953
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75-5-604, Utah Code Annotated 1953
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75-5-605, Utah Code Annotated 1953
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75-5-606, Utah Code Annotated 1953
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75-5-607, Utah Code Annotated 1953
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75-5-608, Utah Code Annotated 1953
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75-5-609, Utah Code Annotated 1953
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75-5-610, Utah Code Annotated 1953
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75-5-611, Utah Code Annotated 1953
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75-5-612, Utah Code Annotated 1953
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75-5-613, Utah Code Annotated 1953
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RENUMBERS AND AMENDS:
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75-5-101.5, (Renumbered from 75-5-101, as enacted by Laws of Utah 1975, Chapter
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150)
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REPEALS:
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75-5-308, as enacted by Laws of Utah 1975, Chapter 150
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 75-5-101.1 is enacted to read:
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75-5-101.1 . Definitions for chapter.
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As used in this chapter:
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(1) "Adult" means an individual who is 18 years old or older.
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(2) "Court visitor" means an individual who is trained in law, nursing, or social work and is
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an officer, employee, or special appointee of the court with no personal interest in the
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proceedings.
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(3) "Full guardianship" means a guardianship that grants a guardian all the powers available
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to the guardian under the law with respect to an individual who is incapacitated,
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including all the powers, duties, and rights that a parent has with respect to the parent's
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unemancipated minor child.
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(4) "Incapacitated" means the same as that term is defined in Section 75-1-201.
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(5) "Joint legal decision-making" means two individuals, regardless of whether the
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individuals are married, sharing legal decision-making and each individual's rights or
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responsibilities are not being superior to the other individual's rights, except with respect
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to specified decisions set forth by the court or the individuals in an order of appointment.
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(6) "Legal decision-making" means the legal right and responsibility to make all legal
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decisions for an individual who is incapacitated, including decisions regarding
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education, health care, religious training, and personal care decisions.
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(7) "Letters of guardianship" means a legal document that establishes a guardian's authority
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to make decisions for an individual.
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(8) "Limited guardianship" means, except as provided in Section 75-5-316, a guardianship
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that grants the guardian less than all powers available to the guardian under the law or
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otherwise restricts the powers of the guardian.
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(9) "Order of appointment" means an order from a court:
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(a) appointing a guardian for an individual who is incapacitated; and
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(b) describing the powers, duties, and responsibilities of the guardian.
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(10) "Specialized care professional" means an individual who is certified as a National
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Certified Guardian or National Master Guardian by the Center for Guardianship
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Certification or similar organization.
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(11) "Suitable institution" means any nonprofit or for profit corporation, partnership, sole
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proprietorship, or other type of business organization that is owned, operated by, or
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employs a specialized care professional.
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Section 2. Section 75-5-101.5, which is renumbered from Section 75-5-101 is renumbered
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and amended to read:
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[75-5-101] 75-5-101.5 . Jurisdiction of subject matter -- Consolidation of
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proceedings.
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(1) [The] A court has jurisdiction over protective proceedings and guardianship proceedings
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in accordance with Chapter 5b, Uniform and Adult Guardianship and Protective
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Proceedings Jurisdiction Act, and Title 78A, Judiciary and Judicial Administration.
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(2) When both guardianship and protective proceedings as to the same person are
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commenced or pending in the same court, the proceedings may be consolidated.
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Section 3. Section 75-5-311 is amended to read:
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75-5-311 . Who may be guardian -- Priorities.
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[(1) As used in this section:]
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[(a) "Specialized care professional" means a person who is certified as a National
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Certified Guardian or National Master Guardian by the Center for Guardianship
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Certification or similar organization.]
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[(b) "Suitable institution" means any nonprofit or for profit corporation, partnership, sole
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proprietorship, or other type of business organization that is owned, operated by, or
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employs a specialized care professional.]
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[(2)] (1)(a) The court shall appoint a guardian in accordance with the incapacitated
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person's most recent nomination, unless that person is disqualified or the court finds
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other good cause why the person should not serve as guardian.
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(b) That nomination shall have been made prior to the person's incapacity, shall be in
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writing and shall be signed by the person making the nomination.
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Nomination of Guardian by an Adult
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I, (Name), being of sound mind and not acting under duress, fraud, or other undue
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influence, do hereby nominate (Name, current residence, and relationship, if any, of the
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nominee) to serve as my guardian in the event that after the date of this instrument I become
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incapacitated.
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Executed at ____________________________ (city, state)
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on this ____________ day of ______________
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____________________________________
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(Signature)
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[(3)] (2) Except as provided in Subsection [(2)] (1), persons who are not disqualified have
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priority for appointment as guardian in the following order:
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(a) a person who has been nominated by the incapacitated person, by any means other
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than that described in Subsection [(2)] (1), if the incapacitated person was 14 years
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old or older when the nomination was executed and, in the opinion of the court, that
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person acted with sufficient mental capacity to make the nomination;
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(b) the spouse of the incapacitated person;
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(c) an adult child of the incapacitated person;
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(d) a parent of the incapacitated person, including a person nominated by will, written
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instrument, or other writing signed by a deceased parent;
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(e) any relative of the incapacitated person with whom he has resided for more than six
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months prior to the filing of the petition;
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(f) a person nominated by the person who is caring for him or paying benefits to him;
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(g) a specialized care professional, so long as the specialized care professional does not:
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(i) profit financially or otherwise from or receive compensation for acting in that
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capacity, except for the direct costs of providing guardianship or conservatorship
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services; or
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(ii) otherwise have a conflict of interest in providing those services;
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(h) any competent person or suitable institution; or
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(i) the Office of Public Guardian under Title 26B, Chapter 6, Part 3, Office of Public
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Guardian.
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Section 4. Section 75-5-317 is amended to read:
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75-5-317 . Guardianship proceedings for minor becoming an incapacitated adult.
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(1) As used in this section:
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[(a) "Incapacitated" means the same as that term is defined in Section 75-1-201. ]
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[(b) "Joint legal decision-making" means parents or two individuals, regardless of
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whether they are married, sharing legal decision-making and no individual's rights or
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responsibilities being superior except with respect to specified decisions set forth by
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the court or the individuals in a final judgment or order.]
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[(c) "Legal decision-making" means the legal right and responsibility to make all
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nonemergency legal decisions for a minor including those regarding education, health
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care, religious training, and personal care decisions.]
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[(d) "Minor" means the same as that term is defined in Section 75-1-201.]
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[(e)] (a) "Physician" means an individual:
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(i) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
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(ii) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
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Practice Act.
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[(f)] (b) "Psychologist" means a person licensed under Title 58, Chapter 61, Psychologist
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Licensing Act, to engage in the practice of psychology as defined in Section
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58-61-102.
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[(g)] (c) "Sole legal decision-making" means one parent or one individual having the
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legal right and responsibility to make major decisions for the minor child.
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(2)(a) Notwithstanding the other provisions of this part, a person who may be a guardian
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of an incapacitated person under Section 75-5-301 may initiate guardianship
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proceedings pursuant to this Subsection (2) for a minor who is at least 17 years, six
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months [of age] old and who is alleged to be incapacitated and request that a
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guardianship order take effect immediately on the day the minor turns 18 years [of
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age] old.
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(b)(i) The petitioner shall provide with the petition a written report of an evaluation
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of the minor by a physician or psychologist that meets the requirements of
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Subsection (2)(c).
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(ii) If the evaluation is conducted within six months after the date the petition is filed
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with the court, the petitioner may ask in the petition that the court accept this
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report in lieu of ordering any additional evaluation and the court may grant the
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request.
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(c) A written report filed pursuant to this section by a physician or psychologist acting
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within that person's scope of practice shall include the following information:
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(i) a specific description of the physical, psychiatric, or psychological diagnosis of
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the person;
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(ii) a comprehensive assessment listing any functional impairments of the alleged
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incapacitated person and an explanation of how and to what extent these
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functional impairments may prevent that person from receiving or evaluating
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information in making decisions or in communicating informed decisions, with or
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without assistance, regarding that person;
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(iii) an analysis of the tasks of daily living the alleged incapacitated person is capable
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of performing independently or with assistance;
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(iv) a list of the medications the alleged incapacitated person is receiving, the dosage
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of the medications, and a description of the effects each medication has on the
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person's behavior to the best of the declarant's knowledge;
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(v) a prognosis for improvement in the alleged incapacitated person's condition and a
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recommendation for the most appropriate rehabilitation plan or care plan; and
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(vi) other information the physician or psychologist considers appropriate.
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(3)(a) Notwithstanding the priorities in Section 75-5-311, if the petition for appointment
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of a guardian for the incapacitated person is filed pursuant to Subsection (2) or within
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two years after the day the incapacitated person turns 18 years [of age] old, unless the
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court finds the appointment to be contrary to the incapacitated person's best interest:
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(i) the court shall appoint as the incapacitated person's guardian any person who, by
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court order, had sole legal decision-making of the incapacitated person when the
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incapacitated person attained 17 years, six months [of age] old; or
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(ii) if two individuals had joint legal decision-making of the incapacitated person
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when the incapacitated person attained 17 years, six months [of age] old, the court
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shall appoint both individuals as the incapacitated person's coguardians.
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(b) If under Subsection (3)(a) the court finds the appointment of an individual described
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in Subsection (3)(a) is contrary to the incapacitated person's best interest or if the
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individual is unwilling to be appointed or serve as a guardian, the court may apply
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the priorities in Section 75-5-311 in appointing a guardian.
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(4)(a) The court may appoint more than one person as the incapacitated person's
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coguardians if the appointment is required by Subsection (3) or the court finds that
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the appointment is in the incapacitated person's best interest.
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(b) If the court appoints coguardians, the coguardians shall share legal decision-making
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for the incapacitated person and neither coguardian's rights or responsibilities are
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superior except as otherwise ordered by the court.
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Section 5. Section 75-5-601 is enacted to read:
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Part 6. Guardian of Individual with a Severe Intellectual Disability
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75-5-601 . Definitions for part.
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As used in this part:
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(1)(a) "Individual with a severe intellectual disability" means an adult who:
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(i) has lifelong functional limitations to the extent that the adult is incapacitated; and
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(ii) has received a diagnosis from a physician or psychologist of a severe intellectual
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disability that has existed since the adult was a minor.
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(b) "Individual with a severe intellectual disability" does not include an adult who had
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capacity at one time or may regain capacity.
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(2) "Petitioner" means the person who brings a petition for guardianship under this part.
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(3) "Physician" means an individual:
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(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
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(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
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Practice Act.
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(4) "Psychologist" means an individual licensed under Title 58, Chapter 61, Psychologist
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Licensing Act, to engage in the practice of psychology as defined in Section 58-61-102.
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(5) "Remotely" means a participant will appear by video conference or other electronic
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means approved by the court.
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(6) "Respondent" means the adult who is alleged to be an individual with a severe
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intellectual disability.
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Section 6. Section 75-5-602 is enacted to read:
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75-5-602 . Applicability of this part.
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(1) This part only applies to a guardianship for an adult for whom there is a signed letter or
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report from a physician or psychologist that indicates that the adult is an individual with
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a severe intellectual disability.
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(2) Except as provided in Subsection (4) or another provision of this part, the provisions of
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Part 3, Guardians of Incapacitated Persons, do not apply to the guardianship of an adult
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described in Subsection (1).
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(3) This part does not apply to a guardianship for an adult if the court finds that the adult is
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not an individual with a severe intellectual disability.
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(4) Part 3, Guardians of Incapacitated Persons, applies to a guardianship for an adult who is
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not an individual with a severe intellectual disability.
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Section 7. Section 75-5-603 is enacted to read:
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75-5-603 . Rights of an individual with a severe intellectual disability.
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(1) An adult, who is allegedly incapacitated and for whom there is a signed letter or report
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from a physician or psychologist that indicates that the adult is an individual with a
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severe intellectual disability, has the right to:
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(a) except as provided in Section 75-5-606, be represented by counsel before a
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guardianship is imposed and have counsel represent the adult during the guardianship
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proceeding;
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(b) receive a copy of all documents filed in a guardianship proceeding;
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(c) have a relative, physician, psychologist, physician assistant, or any interested person
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speak about or raise any issue of concern on behalf of the adult during the
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guardianship proceeding;
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(d) receive information about guardianships from the court; and
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(e) be treated with respect and dignity.
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(2) Except as otherwise provided by this part, if a court orders a full guardianship for an
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adult and enters an order of appointment that specifies that the adult is an individual
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with a severe intellectual disability, the adult has the right to:
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(a) have a relative, physician, psychologist, physician assistant, or any interested person
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speak about or raise any issue of concern on behalf of the adult in any court hearing
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about the guardianship;
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(b) receive a copy of all documents filed in court regarding the guardianship;
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(c) receive information about guardianships from the court;
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(d) ask questions and express concerns or complaints about a guardian and the actions of
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a guardian to the court;
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(e) to the extent practicable, receive timely, effective, and appropriate health care and
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medical treatment that does not violate the adult's rights;
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(f) have all services provided by a guardian at a reasonable rate of compensation;
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(g) have a court review any request for payment by a guardian to avoid excessive or
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unnecessary fees or duplicative billing; and
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(h) receive prudent financial management of the adult's property, including
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Supplemental Security Income and Supplemental Security Disability Insurance.
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(3) If the court enters an order for a limited guardianship for an adult or fails to specify in
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the order of appointment as to whether the adult is an individual with a severe
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intellectual disability, the adult has the rights of an incapacitated person described in
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Section 75-5-301.5.
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Section 8. Section 75-5-604 is enacted to read:
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75-5-604 . Petition for guardianship of an individual with a severe intellectual
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disability -- Venue -- Proceedings.
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(1) A person interested in an adult's welfare may petition a court for a finding that:
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(a) the adult is an individual with a severe intellectual disability; and
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(b) the appointment of a guardian is necessary or desirable as a means of providing
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continuing care to the adult.
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(2) Notwithstanding Title 78B, Chapter 3a, Venue for Civil Actions, a petitioner shall bring
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a petition described in Subsection (1) in the county where:
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(a) the respondent resides or is present; or
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(b) if the respondent is admitted to an institution by an order of a court, the court is
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located.
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(3)(a) Upon the filing of a petition under Subsection (1), the court shall set a date for a
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hearing on the issue of whether the respondent is an individual with a severe
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intellectual disability.
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(b) The court shall, while preserving the due process rights of the respondent, conduct
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the hearing remotely in accordance with Utah Rules of Civil Procedure, Rule 87,
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unless the court finds good cause under Utah Rules of Civil Procedure, Rule 87, to
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not conduct the hearing remotely.
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(4) Except as provided in Section 75-5-606, the respondent is entitled to be represented by
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counsel, present evidence, and cross-examine witnesses, including a physician,
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psychologist, physician assistant, or court visitor appointed under Section 75-5-607.
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(5) The court shall determine the issue of whether the respondent is an individual with a
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severe intellectual disability at a closed hearing, without a jury, if the respondent or the
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respondent's counsel requests so.
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(6) The respondent shall:
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(a) be present at any hearing on the petition; or
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(b) hear all evidence bearing upon the respondent's condition.
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(7) If the petitioner requests a waiver of the presence of the respondent, the court shall order
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an investigation by a court visitor in accordance with Section 75-5-607.
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Section 9. Section 75-5-605 is enacted to read:
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75-5-605 . Notices for guardianship proceedings.
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(1) Upon a petition for the appointment or removal of a guardian for an adult who is an
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individual with a severe intellectual disability, or is alleged to be an individual with a
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severe intellectual disability, other than the appointment of an emergency guardian or
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temporary suspension of a guardian, the petitioner shall give notice of the petition to:
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(a) the adult and the adult's parents;
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(b) any person who is serving as guardian or conservator or who has care and custody of
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the adult;
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(c) if the petitioner is unable to notify the adult's parents under Subsection (1)(a), at least
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one of the closest adult relatives of the individual if any can be found; and
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(d) Adult Protective Services if Adult Protective Services has received a referral under
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Title 26B, Chapter 6, Part 2, Abuse, Neglect, or Exploitation of a Vulnerable Adult,
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concerning the welfare of the adult or concerning the guardian or conservator or
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proposed guardian or conservator.
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(2) A notice described in Subsection (1) shall:
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(a) be in plain language and large type and in a form with final approval of the Judicial
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Council;
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(b) indicate the time and place of the hearing, the possible adverse consequences to the
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adult described in Subsection (1) who is receiving notice of rights, a list of rights,
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including the adult's own or a court appointed counsel, and a copy of the petition;
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(c) be served personally on:
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(i) the adult described in Subsection (1); and
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(ii) the adult's parents if the adult's parents can be found within the state; and
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(d) be served in accordance with Section 75-1-401 on:
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(i) the adult's parents if the adult's parents cannot be found within the state; and
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(ii) any other person that is required to be served notice under Subsection (1).
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Section 10. Section 75-5-606 is enacted to read:
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75-5-606 . Appointment of counsel.
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(1)(a) Except as provided in Subsection (2), the court shall appoint an attorney to
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represent a respondent on a petition for guardianship unless the respondent has
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counsel of the respondent's own choice.
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(b) The respondent shall pay the costs of an attorney appointed under Subsection (1)(a)
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unless the respondent or the respondent's parents are indigent.
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(2) Counsel for a respondent is not required under Subsection (1) if:
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(a) the respondent is the child, grandchild, or sibling of the petitioner;
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(b) the value of the respondent's entire estate does not exceed $2,000 as established by
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an affidavit from the petitioner;
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(c) the respondent appears in court with the petitioner in-person or remotely;
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(d) the respondent is given the opportunity to communicate, to the extent possible, the
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respondent's acceptance of the appointment of a guardian; and
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(e) the court is satisfied that counsel is not necessary in order to protect the interests of
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the respondent.
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(3) If the court determines that a petition brought under this part is without merit, the
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petitioner shall pay any attorney fees and court costs.
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(4) The legal representation of the respondent by an attorney shall terminate upon the
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appointment of a guardian, unless:
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(a) there are separate conservatorship proceedings still pending before the court
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subsequent to the appointment of a guardian;
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(b) there is a timely filed appeal of the appointment of the guardian or the determination
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that the respondent is an individual with a severe intellectual disability; or
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(c) the court orders otherwise upon an express finding of good cause.
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Section 11. Section 75-5-607 is enacted to read:
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75-5-607 . Appointment of physician, psychologist, physician assistant, or court
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visitor.
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(1)(a) The court may appoint a physician, a psychologist, or a physician assistant to
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examine the respondent.
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(b) If the court appoints a physician. a psychologist, or a physician assistant under
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Subsection (1)(a), the physician, psychologist, or physician assistant shall submit a
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report in writing to the court.
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(2) The court may appoint a court visitor to:
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(a) interview the individual seeking appointment as guardian of the respondent;
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(b) visit the present place of abode of the respondent and the place proposed where the
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respondent will be detained or reside if a guardian is appointed; or
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(c) conduct other investigations or observations as directed by the court.
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Section 12. Section 75-5-608 is enacted to read:
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75-5-608 . Emergency or temporary guardian.
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(1)(a) If a respondent does not have a guardian and an emergency exists, the court may,
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without notice, appoint an emergency guardian for the respondent for a specified
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period not to exceed 30 days pending notice and a hearing.
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(b) The court may, without notice, appoint an emergency guardian for an individual with
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a severe intellectual disability for a specified period not to exceed 30 days pending
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notice and a hearing if:
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(i) an appointed guardian for the individual is not effectively performing the
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guardian's duties; and
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(ii) the court further finds that the welfare of the respondent or individual requires
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immediate action.
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(c) Upon request by an interested person after the appointment of an emergency
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guardian under Subsection (1)(a) or (b), the court shall hold a hearing within 14 days
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in accordance with Section 75-5-604.
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(2) If the court finds good cause after notice and hearing under Sections 75-5-604 and
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75-5-605, the court may:
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(a) appoint a temporary guardian;
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(b) convert an emergency guardian to a temporary guardian if an emergency guardian
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has been appointed under Subsection (1); or
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(c) appoint a different person as temporary guardian to replace an emergency guardian
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appointed under Subsection (1).
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(3) Unless the respondent or individual with a severe intellectual disability has already
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obtained or been appointed counsel or an attorney is not required as described in Section
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75-5-606, the court shall appoint an attorney to represent the respondent or individual.
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(4) Until a full hearing and further order of the court, the temporary guardian:
414
(a) shall be charged with the care and custody of the respondent or individual with a
415
severe intellectual disability; and
416
(b) may not permit the respondent or individual with a severe intellectual disability to be
417
removed from the state.
418
(5) The authority of any permanent guardian previously appointed by the court is suspended
419
so long as a temporary guardian has authority.
420
(6) A temporary guardian may be removed at any time, and shall obey all orders and make
421
any reports required by the court.
422
(7) A temporary guardian has all of the powers and duties of a permanent guardian as set
423
forth in Section 75-5-611.
424
Section 13. Section 75-5-609 is enacted to read:
425
75-5-609 . Findings by court -- Appointment of guardian -- Acceptance of
426
appointment.
427
(1) The court may appoint a guardian for a respondent if the court finds:
428
(a) the respondent is an individual with a severe intellectual disability; and
429
(b) the appointment of a guardian is necessary or desirable as a means of providing
430
continuing care to the respondent.
431
(2) If the court appoints a guardian as described in Subsection (1), the court shall:
432
(a) appoint a guardian for the respondent in accordance with Section 75-5-610;
433
(b) prefer a full guardianship for the respondent; and
434
(c) specify in the order of appointment that:
435
(i) the respondent is an individual with a severe intellectual disability; and
436
(ii) the respondent does not have capacity to execute or consent to any contract or
437
written agreement.
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438
(3)(a) If the court orders a limited guardianship for a respondent:
439
(i) the respondent is entitled to the rights described in Section 75-5-301.5 for an
440
incapacitated person; and
441
(ii) the court shall state the limitations of the guardianship and the rights to which the
442
respondent is entitled in the order of appointment.
443
(4) If the court grants a guardian with the power to make or assist with health care decisions
444
for a respondent, the court shall include in the order of appointment the name of any
445
interested person whom the guardian must notify of any significant health care or
446
treatment received by the individual.
447
(5)(a) By accepting an appointment, a guardian submits personally to the jurisdiction of
448
the court in any proceeding relating to the guardianship that may be instituted by any
449
interested person or any person interested in the welfare of the respondent.
450
(b) Notice of any proceeding shall be delivered to the guardian or mailed to the guardian
451
by ordinary mail at the guardian's address as listed in the court records and to the
452
guardian's address as known to the petitioner at the time of the appointment.
453
(6) If the court orders a limited guardianship for an individual with a severe intellectual
454
disability, the guardian has the same duties, powers, and rights described in Section
455
75-5-312 for a guardian of an incapacitated person.
456
(7) If the court orders a full guardianship for an individual with a severe intellectual
457
disability, the guardian has the duties, powers and rights described in Section 75-5-611.
458
Section 14. Section 75-5-610 is enacted to read:
459
75-5-610 . Who may be a guardian -- Coguardians.
460
(1) Unless the court finds there is good cause that the person should not serve as guardian,
461
the court shall appoint a guardian for an individual with a severe intellectual disability in
462
the following order of priority:
463
(a) a parent of the individual with a severe intellectual disability;
464
(b) an adult sibling of the individual with a severe intellectual disability;
465
(c) a grandparent of the individual with a severe intellectual disability;
466
(d) an adult relative of the individual with a severe intellectual disability if the individual
467
has resided with the relative for more than 180 days before the day on which the
468
petition was filed;
469
(e) one of the closest adult relatives of the individual if any can be found;
470
(f) a specialized care professional, so long as the specialized care professional does not:
471
(i) profit financially or otherwise from or receive compensation for acting in that
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472
capacity, except for the direct costs of providing guardianship or conservatorship
473
services; or
474
(ii) otherwise have a conflict of interest in providing those services;
475
(g) a competent person or suitable institution; or
476
(h) the Office of Public Guardian described in Title 26B, Chapter 6, Part 3, Office of
477
Public Guardian.
478
(2) The court may appoint more than one person as guardian for the individual with a
479
severe intellectual disability.
480
(3) If the court appoints coguardians for an individual with a severe intellectual disability:
481
(a) the coguardians shall share legal decision-making for the individual with a severe
482
intellectual disability; and
483
(b) each coguardian's rights and responsibilities are not superior to the other
484
coguardian's rights and responsibilities unless the court designates that a coguardian's
485
rights and responsibilities are superior.
486
Section 15. Section 75-5-611 is enacted to read:
487
75-5-611 . Duties, powers, and rights of a guardian for an individual with a
488
severe intellectual disability in a full guardianship.
489
(1) This section only applies to a guardian who is appointed by a court for an individual
490
with a severe intellectual disability in a full guardianship.
491
(2)(a) A guardian shall diligently and in good faith carry out the specific duties, powers,
492
and rights that the guardian is granted under this section and in the order of
493
appointment entered under Section 75-5-609.
494
(b) A guardian is not liable to a third person for acts of the individual with a severe
495
intellectual disability solely by reason of the guardian having the same powers,
496
rights, and duties as a parent with respect to the parent's unemancipated minor child.
497
(3)(a) In carrying out duties, powers, and rights that a guardian is granted, the guardian
498
shall encourage the individual with a severe intellectual disability, to the extent
499
practicable, to participate in decisions, exercise self-determination, act on the
500
individual's own behalf, and develop the skills to manage the individual's personal
501
affairs.
502
(b) To the extent known, a guardian shall consider the expressed desires, preferences,
503
and personal values of the individual with a severe intellectual disability when
504
making decisions about the individual.
505
(4) A guardian is entitled to custody of the individual with a severe intellectual disability to
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506
the extent that the custody is consistent with the terms of any order by a court relating to
507
the detention and commitment of the individual.
508
(5) If a guardian has custody of the individual with a severe intellectual disability under
509
Subsection (4), the guardian:
510
(a) may establish the individual's place of residence within, or outside of, this state; and
511
(b) shall provide for the care, comfort, and maintenance of the individual and arrange for
512
the individual's training and education whenever appropriate.
513
(6) Without regard to the custodial rights of the individual with a severe intellectual
514
disability, a guardian shall take reasonable care of the individual's clothing, furniture,
515
vehicles, and other personal effects and commence protective proceedings if other
516
property of the individual is in need of protection.
517
(7) A guardian of the individual with a severe intellectual disability may:
518
(a) give the consent or approval that may be necessary to enable the individual to receive
519
medical or other professional care, counsel, treatment, or service;
520
(b) restrict or prohibit the individual's association with relatives and acquaintances if the
521
guardian deems that the association is harmful to the individual; and
522
(c) restrict the individual from taking or consuming:
523
(i) a drug, as defined in Section 58-17b-102, that has not been prescribed to the
524
individual;
525
(ii) a tobacco product, an electronic cigarette product, or a nicotine product, as those
526
terms are defined in Section 76-10-101;
527
(iii) alcohol;
528
(iv) pornography; or
529
(v) a legal substance or activity that would be harmful to the health and wellbeing of
530
the individual.
531
(8)(a) A guardian of the individual with a severe intellectual disability shall:
532
(i) notify any interested person named in the order of appointment under Subsection
533
75-5-609(4) of any significant health care or treatment received by the individual;
534
(ii) immediately notify persons who request notification and are not restricted in
535
associating with the individual of:
536
(A) the individual's admission to a hospital for three or more days or to a hospice
537
program;
538
(B) the individual's death; or
539
(C) the arrangements for the disposition of the individual's remains;
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540
(iii) immediately notify all interested persons if the guardian reasonably believes that
541
the individual's death is likely to occur within the next 10 days, based on:
542
(A) the guardian's own observations; or
543
(B) information from the individual's physician or other medical care providers;
544
and
545
(iv) provide the court with a current address of an individual if the guardian moves
546
the individual.
547
(b) For purposes of this Subsection (8), an interested person is a person required to
548
receive notice in guardianship proceedings as described in Section 75-5-605.
549
(9) If a conservator has not been appointed for the estate of the individual with a severe
550
intellectual disability, a guardian may:
551
(a) institute proceedings to compel any person under a duty to support the individual or
552
to pay sums for the welfare of the individual to perform that duty;
553
(b) receive money and tangible property deliverable to the individual and apply the
554
money and property for support, care, and education of the individual, except that:
555
(i) the guardian may not use funds from the individual's estate for room and board
556
that the guardian or the guardian's family member or relative has furnished unless
557
a charge for the service is approved by order of the court made upon notice to at
558
least one adult relative in the nearest degree of kinship to the individual in which
559
there is an adult; and
560
(ii) the guardian shall manage the individual's money and property in a prudential
561
manner to ensure that the individual qualifies for disability benefits.
562
(10)(a) If a conservator has not been appointed for the estate of the individual with a
563
severe intellectual disability, and except as provided in Subsection (13)(b), a guardian
564
shall:
565
(i) send a report with a full account to the court on an annual basis if the individual's
566
estate is in excess of $50,000 excluding the residence, if any, owned by the
567
individual; or
568
(ii) fill out an informal annual report and mail the report to the court if the
569
individual's estate is less than $50,000 excluding the residence, if any, owned by
570
the individual.
571
(b) An accounting report under Subsection (10)(a) shall include a statement regarding:
572
(i) all assets at the beginning and end of the reporting year;
573
(ii) any income received during the year;
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574
(iii) any disbursements for the support of the individual with a severe intellectual
575
disability;
576
(iv) any investments or trusts that are held for the individual's benefit;
577
(v) any expenditures or fees charged to the individual's estate; and
578
(vi) any other expenses incurred by the individual's estate.
579
(c) The court may require additional information in an accounting report under
580
Subsection (10)(a).
581
(d) The Judicial Council shall approve forms for the accounting reports described in
582
Subsection (10)(a).
583
(e) An annual accounting report under Subsection (10)(a) shall be examined and
584
approved by the court.
585
(f) If the income of the individual with a severe intellectual disability is limited to a
586
federal or state program requiring an annual accounting report, a copy of that report
587
may be submitted to the court in lieu of the required annual accounting report under
588
Subsection (10)(a).
589
(g)(i) A corporate fiduciary is not required to petition the court, but shall submit the
590
corporate fiduciary's internal report annually to the court.
591
(ii) The report under Subsection (10)(g)(i) shall be examined and approved by the
592
court.
593
(h) If a fee is paid for an accounting of the estate of the individual with a severe
594
intellectual disability, a fee may not be charged for an accounting of the individual's
595
status under Subsection (13).
596
(11) If a conservator has been appointed for the estate of the individual with a severe
597
intellectual disability, a guardian shall:
598
(a) control the custody and care of the individual and is entitled to receive reasonable
599
sums for services and for room and board furnished to the individual as agreed upon
600
between the guardian and the conservator if the amounts agreed upon are reasonable
601
under the circumstances;
602
(b) pay all of the individual's estate received by the guardian in excess of those funds
603
expended to meet current expenses for support, care, and education of the individual
604
to the conservator for management of the individual's estate as provided in this
605
chapter; and
606
(c) account to the conservator for funds expended to meet current expenses for support,
607
care, and education of the individual.
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608
(12) If a conservator has been appointed for the estate of the individual with a severe
609
intellectual disability, a guardian may request the conservator to expend the individual's
610
estate by payment to third persons or institutions for the individual's care and
611
maintenance.
612
(13)(a) Except as provided in Subsection (13)(b), the guardian shall provide an annual
613
accounting of the individual's status, including a report of the physical and mental
614
condition of the individual, the individual's estate that has been subject to the
615
guardian's possession, and the individual's place of residence and others living in the
616
same household, to the court in the petition or the annual report as required under
617
Subsection (10).
618
(b) The guardian is not required to provide an annual report or accounting described in
619
Subsection (10)(a) or (13)(a) if the guardian is the parent, grandparent, or sibling of
620
the individual with a severe intellectual disability.
621
(14)(a) The court may impose a penalty in an amount not to exceed $5,000 if a guardian:
622
(i) makes a substantial misstatement on filings of annual reports;
623
(ii) is guilty of gross impropriety in handling the property of the individual with a
624
severe intellectual disability; or
625
(iii) willfully fails to file the report required by this section after receiving written
626
notice from the court of the failure to file and after a grace period of two months
627
has elapsed.
628
(b) The court may order restitution of funds misappropriated from the estate of the
629
individual with a severe intellectual disability.
630
(c) A penalty under this Subsection (14) shall be paid by the guardian and may not be
631
paid by the individual or the individual's estate.
632
(15) A person who refuses to accept the authority of a guardian with authority over
633
financial decisions to transact business with the assets of the individual with a severe
634
intellectual disability after receiving a certified copy of letters of guardianship is liable
635
for costs, expenses, attorney fees, and damages if the court determines that the person
636
did not act in good faith in refusing to accept the authority of the guardian.
637
Section 16. Section 75-5-612 is enacted to read:
638
75-5-612 . Removal or resignation of a guardian.
639
(1) On a petition of resignation from a guardian of an individual with a severe intellectual
640
disability, the court may:
641
(a) accept the guardian's resignation; or
- 19 - 1st Sub. (Green) S.B. 199 02-13 14:19
642
(b) make any other order that is appropriate.
643
(2) On a petition of removal of a guardian from the individual with a severe intellectual
644
disability or any person interested in the individual's welfare, the court may remove a
645
guardian if:
646
(a) the guardian obtained the appointment by fraud, deceit, or gross misrepresentation;
647
(b) the guardian fails to perform the guardian's duties or responsibilities described in:
648
(i) Section 75-5-611 if the individual is in full guardianship; or
649
(ii) Section 75-5-312 if the individual is in a limited guardianship;
650
(c) the guardian is unable to perform the guardian's duties or responsibilities due to
651
incapacity or illness;
652
(d) the guardian fails to use reasonable care and diligence in the management of the
653
individual's estate;
654
(e) the individual is in a limited guardianship, the guardian is not permitted to restrict the
655
individual's association, and the guardian is found by the court to have filed a petition
656
frivolously or in bad faith under Section 75-5-312.5;
657
(f) the guardian's interests have become adverse to the faithful performance of the
658
guardian's duties and there is a risk that the guardian will fail to faithfully perform the
659
guardian's duties; or
660
(g) removal of the guardian would be in the best interest of the individual.
661
(3) If the court removes a guardian under Subsection (2), the court may:
662
(a) appoint a successor guardian; or
663
(b) make any other order that is appropriate.
664
(4) On a petition of resignation or removal of a guardian, the court shall follow the same
665
procedures to safeguard the rights of the individual with a severe intellectual disability
666
on a petition for appointment of a guardian under Sections 75-5-603, 75-5-604, 75-5-606,
667
and 75-5-607.
668
(5) The court is not required to appoint an attorney to represent the individual with a severe
669
intellectual disability upon the removal or resignation of the individual's guardian if the
670
case is uncontested and the individual's incapacity is not at issue.
671
Section 17. Section 75-5-613 is enacted to read:
672
75-5-613 . Termination of guardianship for an individual with a severe
673
intellectual disability.
674
(1)(a) An individual with a severe intellectual disability, or any person interested in the
675
individual's welfare, may petition for an order:
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676
(i) that the individual is not an individual with a severe intellectual disability; and
677
(ii) for removal or resignation of the guardian in accordance with Section 75-5-612.
678
(b) The court may specify a minimum period of time, not exceeding one year, during
679
which no petition for the termination of a guardianship for an individual with a
680
severe intellectual disability can be filed without leave from the court.
681
(c) A request for the order described in this Subsection (1) may be made by informal
682
letter to the court.
683
(d) Any person who knowingly interferes with a request described in Subsection (1)(a)
684
may be sanctioned by the court.
685
(2) Notwithstanding Subsection (1), the authority and responsibility of a guardian for an
686
individual with a severe intellectual disability terminates upon:
687
(a) the death of the guardian or the individual;
688
(b) the determination that the guardian is incapacitated; or
689
(c) the removal or resignation of the guardian in accordance with Section 75-5-612.
690
(3) Resignation of a guardian does not terminate the guardianship until the resignation has
691
been approved by the court.
692
(4) Termination of a guardian does not affect the guardian's liability for the guardian's prior
693
acts or the guardian's obligation to account for funds and assets of the individual with a
694
severe intellectual disability.
695
(5) On a petition to order that an individual is no longer an individual with a severe
696
intellectual disability, the court shall follow the same procedures to safeguard the rights
697
of the individual with a severe intellectual disability on a petition for appointment of a
698
guardian under Sections 75-5-603, 75-5-604, 75-5-606, and 75-5-607.
699
Section 18. Repealer.
700
This bill repeals:
701
Section 75-5-308, Visitor in guardianship proceeding.
702
Section 19. Effective Date.
703
This bill takes effect on May 7, 2025.
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