Evaluations in Guardianship Amendments

11
75-5-301.5
75-5-303
0
Evaluations in Guardianship Amendments
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Todd Weiler
House Sponsor: Melissa G. Ballard
LONG TITLE
General Description:
This bill amends provisions related to guardianship.
Highlighted Provisions:
This bill:
clarifies that a person's rights under the Health Insurance Portability and Accountability
Act of 1996 are not altered or abridged by Utah code provisions related to the rights of a
person alleged to be incapacitated;
amends provisions related to the qualifications of a health care provider appointed by a
court to assess an individual alleged to be incapacitated, and standards for the tools the
health care professional uses for the assessment;
clarifies that the court appointed health care professional's report must be filed with the
court;
clarifies that a court appointed visitor's report must be filed with the court;
provides that the court appointed health care provider may interview the person seeking
to be appointed a guardian, but may not base the health care provider's assessment solely
or predominately on that individual's opinion; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
75-5-301.5
, as last amended by Laws of Utah 2025, Chapter 533
75-5-303
, as last amended by Laws of Utah 2025, Chapters 310, 338 and 533
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
75-5-301.5
is amended to read:
75-5-301.5
. Rights of a person alleged to be incapacitated -- Rights of an
incapacitated person.
(1)
Except as otherwise provided by this chapter or any other law, a person alleged to be
incapacitated has the right to:
(a)
be represented by counsel before a guardianship is imposed and have counsel
represent the person during the guardianship proceeding, except as provided in
Subsection
75-5-303(6)(e)
;
(b)
receive a copy of all documents filed in a guardianship proceeding;
(c)
have a relative, physician, physician assistant, or any interested person speak about
or raise any issue of concern on behalf of the person during the guardianship
proceeding;
(d)
receive information about guardianships from the court; and
(e)
be treated with respect and dignity.
(2)
For a guardianship granted before May 7, 2025, the rights of an incapacitated person for
whom a guardian is appointed are in accordance with the statutory provisions in effect as
of the date that the guardianship was granted, including, as applicable, Subsection
75-5-312(1)(c)(i)
unless expressly limited by a court in the order of appointment.
(3)
Except as otherwise provided by this chapter or any other law, for a guardianship
granted on or after May 7, 2025, an incapacitated person for whom a guardian is
appointed has the right to:
(a)
have counsel represent the incapacitated person at any time after the guardian is
appointed;
(b)
have a relative, physician, physician assistant, or any interested person speak about
or raise any issue of concern on behalf of the person in any court hearing about the
guardianship;
(c)
receive a copy of all documents filed in court regarding the guardianship;
(d)
receive information about guardianships from the court;
(e)
ask questions and express concerns or complaints about a guardian and the actions of
a guardian to the court;
(f)
be granted the greatest degree of freedom possible that is consistent with the reasons
for the guardianship;
(g)
be treated with respect and dignity;
(h)
be treated fairly by the incapacitated person's guardian;
(i)
have all services provided by a guardian at a reasonable rate of compensation;
(j)
have a court review any request for payment by a guardian to avoid excessive or
unnecessary fees or duplicative billing;
(k)
receive prudent financial management of the incapacitated person's property;
(l)
subject to Subsections
75-5-312(4)(h)
and
75-5-417(4)
, and subject to the exception
provided in Subsection
75-5-312(7)(d)
, receive a copy of an accounting report
regarding the incapacitated person's estate that is submitted to the court by the
guardian under Section
75-5-312
or the conservator under Section
75-5-417
if a
conservator is appointed for the incapacitated person; and
(m)
ask the court to:
(i)
review the management activity of a guardian if a dispute cannot be resolved
regarding the guardian's management;
(ii)
continue to review the need for a guardianship or to modify or terminate a
guardianship
pursuant to
in accordance with
Section
75-5-306
and Section
75-5-307
; and
(iii)
enter an order restoring the incapacitated person's capacity at the earliest possible
time
pursuant to
in accordance with
Section
75-5-306
and Section
75-5-307
.
(4)
The court may not waive, suspend, or limit a right described in Subsection
(3)
.
(5)
Except as otherwise provided by this chapter or any other law, and subject to Subsection
(6)
, for a guardianship granted on or after May 7, 2025, an incapacitated person for
whom a guardian is appointed has the right, to the extent practicable, to:
(a)
participate in developing an individualized plan for the incapacitated person's care,
including:
(i)
managing the incapacitated person's assets and property;
(ii)
determining the incapacitated person's residence; and
(iii)
determining the services to be received by the incapacitated person;
(b)
be given consideration in regards to the incapacitated person's current and previously
stated desires, preferences for health care and medical treatment, and religious and
moral beliefs;
(c)
remain as independent as possible, including giving deference to the incapacitated
person's preference for the incapacitated person's residence and standard of living:
(i)
as expressed or demonstrated before a determination of capacity was made; or
(ii)
as currently expressed or demonstrated by the incapacitated person if the
preference is reasonable under the circumstances;
(d)
be able to exercise control over all aspects of the incapacitated person's life that are
not granted to the guardian in an order of appointment of a limited guardianship;
(e)
maintain privacy and confidentiality in personal matters, to the extent that privacy
and confidentiality does not inhibit the ability of the incapacitated person's guardian
to fulfill the guardian's responsibilities or perform the guardian's duties;
(f)
receive telephone calls and personal mail and associate with relatives and
acquaintances unless the guardian and the court determine that the association should
be restricted or prohibited in accordance with Section
75-5-312.5
;
(g)
receive timely, effective, and appropriate health care and medical treatment that does
not violate the incapacitated person's rights;
(h)
receive an allowance or control a reasonable amount of the incapacitated person's
earnings or other income; and
(i)
collaborate with the incapacitated person's guardian to use appropriate financial tools
to maintain a bank account and manage the incapacitated person's personal money.
(6)
The court may waive or limit a right described in Subsection
(5)
if:
(a)
an interested party requests the waiver or limitation; and
(b)
the court finds, by clear and convincing evidence, that there is a compelling reason
for the waiver or limitation.
(7)
(a)
The rights of an incapacitated person under this section do not abrogate any
remedy provided by law.
(b)
This section may not be interpreted in a way that would permit or justify any action
that violates a provision in Sections
76-5-111
through
76-5-111.4
or Section
76-5-112.5
.
(c)
Nothing in this section shall be construed to alter or preempt the requirements for
protecting health information und
er the Health
Insurance Portability and
Accountability Act of 1996, 50 Pub. L. No. 104-191, 110 Stat. 1936, as amended.
(8)
Any right described in this section may be:
(a)
addressed in a guardianship proceeding; or
(b)
enforced through a private cause of action.
Section 2. Section
75-5-303
is amended to read:
75-5-303
. Procedure for court appointment of a guardian of an incapacitated
person.
(1)
An allegedly incapacitated person or any person interested in an allegedly incapacitated
person's welfare may petition for a finding of incapacity and appointment of a guardian.
(2)
(a)
Upon the filing of a petition, the court shall set a date for hearing on the issues of
incapacity.
(b)
Unless the allegedly incapacitated person has counsel of the person's own choice, the
court shall appoint an attorney to represent the person in the proceeding the cost of
which shall be paid by the allegedly incapacitated person, unless the allegedly
incapacitated person and the allegedly incapacitated person's parents are indigent.
(c)
If the court determines that the petition is without merit, the attorney fees and court
costs shall be paid by the person filing the petition.
(d)
If the court appoints the petitioner or the petitioner's nominee as guardian of the
incapacitated person, regardless of whether the nominee is specified in the moving
petition or nominated during the proceedings, the petitioner shall be entitled to
receive from the incapacitated person reasonable attorney fees and court costs
incurred in bringing, prosecuting, or defending the petition.
(3)
The legal representation of an allegedly incapacitated person by an attorney shall
terminate upon the appointment of a guardian, unless:
(a)
there are separate conservatorship proceedings still pending before the court
subsequent to the appointment of a guardian;
(b)
there is a timely filed appeal of the appointment of the guardian or the determination
of incapacity; or
(c)
upon an express finding of good cause, the court orders otherwise.
(4)
(a)
The court may appoint a health care provider, as that term is defined in Section
75A-3-101
,
who is qualified by training, education, and experience
to examine the
functional capabilities and limitations of the allegedly incapacitated person.
(b)
An appointed health care provider shall
submit to
file with
the court a report
assessing, within the scope of the health care provider's license and experience,
using
evidence-based screening tools appropriate for the assessment,
the functional
capabilities and limitations of the allegedly incapacitated person to, with or without
appropriate technological assistance:
(i)
receive and evaluate information;
(ii)
make and communicate decisions; and
(iii)
provide for necessities such as food, shelter, clothing, health care, or safety.
(c)
(i)
An appointed health care provider may interview the person seeking
appointment as guardian.
(ii)
The appointed health care provider may not base the appointed health care
provider's assessment described in Subsection
(4)(b)
solely or predominately on
the opinion of the person seeking appointment as guardian.
(5)
(a)
The court may appoint a court visitor to:
(i)
interview the person seeking appointment as guardian;
(ii)
visit the present place of abode of the allegedly incapacitated person and the place
it is proposed that the allegedly incapacitated person will be detained or reside if
the requested appointment is made; or
(iii)
conduct other investigations or observations as directed by the court.
(b)
The court visitor shall
submit
file
a written report
to
with
the court.
(6)
(a)
The allegedly incapacitated person shall be present at the hearing and see or hear
all evidence bearing upon the person's condition.
(b)
The court may only waive the presence of the allegedly incapacitated person if all of
the following criteria are met:
(i)
the person is represented by an attorney;
(ii)
a court visitor is appointed to investigate, the costs of which shall be paid by the
person seeking the guardianship; and
(iii)
following the investigation, the court finds that there is no reasonable
accommodation that will enable the allegedly incapacitated person to be present
for or participate in the hearing.
(c)
A court visitor is not required to investigate under Subsection
(6)(b)(ii)
if there is
clear and convincing evidence from a physician that the person alleged to be
incapacitated is experiencing a state of extended comatosis that is likely to persist
through the time of the hearing.
(d)
In addition to the rights described in Section
75-5-301.5
, an allegedly incapacitated
person is entitled to be represented by counsel, to present evidence, to cross-examine
witnesses, including the court-appointed health care provider and the court visitor,
and to trial by jury. The issue may be determined at a closed hearing without a jury if
the allegedly incapacitated person or the person's counsel so requests.
(e)
Counsel for the allegedly incapacitated person is not required if all of the following
criteria are met:
(i)
the allegedly incapacitated person is the biological or adopted child of the
petitioner;
(ii)
the value of the allegedly incapacitated person's entire estate does not exceed
$20,000 as established by an affidavit of the petitioner in accordance with Section
75-3-1201
;
(iii)
the allegedly incapacitated person's appearance at the hearing has not been
waived and the person appears in court with the petitioner, as described in
Subsection
(6)(a)
;
(iv)
the allegedly incapacitated person is given the opportunity to communicate, to
the extent possible, the person's acceptance of or objection to the appointment of
the proposed guardian, including the opportunity to communicate that acceptance
or objection to the court and, as applicable, to the person's supporters, health care
providers, and attorney;
(v)
no attorney from the state court's list of attorneys who have volunteered to
represent respondents in guardianship proceedings is able to provide counsel to
the person within 60 days of the date of the hearing, as described in Subsection
(2)(b)
;
(vi)
the court is satisfied that counsel is not necessary to protect the interests of the
allegedly incapacitated person; and
(vii)
the court appoints a court visitor and receives a report from the court visitor
under Subsection
(5)
.
Section 3.
Effective Date.
This bill takes effect on
May 6, 2026
.
3-5-26 9:44 AM