2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 16 - Trust Administration
Part 9 - Colorado Uniform Trust Decanting Act
§ 15-16-908. Representation

1. Notice to a person with authority to represent and bind another person under a first-trust instrument or this part 9 has the same effect as notice given directly to the person represented.
2. Consent of or waiver by a person with authority to represent and bind another person under a first-trust instrument or this part 9 is binding on the person represented unless the person represented objects to the representation before the consent or waiver otherwise would become effective.
3. A person with authority to represent and bind another person under a first-trust instrument or this part 9 may file an application under section 15-16-909 on behalf of the person represented.
4. A settlor may not represent or bind a beneficiary under this part 9.
5. To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to an exercise of the decanting power, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
6. To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to an exercise of the decanting power:
   1. A conservator may represent and bind the protected person's estate;
   2. A guardian may represent and bind the ward if a conservator of the ward's estate has not been appointed;
   3. An agent having authority to act with respect to the principal's beneficial interest in the trust may represent and bind the principal;
   4. The trustee of a trust that is a beneficiary of the first trust may represent and bind the beneficiaries of that trust, and the trustee of a trust that is a beneficiary of the second trust may represent and bind the beneficiaries of that trust;
   5. A personal representative of a decedent's estate may represent and bind interested persons with respect to the estate; and
   6. A parent may represent and bind the parent's minor or unborn child if a conservator or guardian for the child has not been appointed.

7. Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to an exercise of the decanting power, but only to the extent there is no conflict of interest between the representative and the person represented.
8. If section 15-16-909 is invoked and the court determines that an interest is not represented under this part 9, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.
9. A representative may act on behalf of the individual represented with respect to an exercise of the decanting power regardless of whether a judicial proceeding concerning the exercise of the decanting power is pending.
10. In making decisions, a representative may consider general benefit accruing to the living members of the represented individual's family.
11. The authority to represent and bind another person under this section applies to the results of the exercise of the decanting power under this part 9, including but not limited to trust division, modification, or reformation, regardless of any other law of the state.

History. Source: L. 2016: Entire part added,(SB 16-085), ch. 228, p. 876, § 1, effective August 10.

COMMENT

Subsection (1) provides that the first-trust instrument or general rules in the state's trust code or other law determine who may receive notice of an exercise of the decanting power on behalf of a minor beneficiary or an incapacitated beneficiary, settlor, holder of a presently exercisable power of appointment or person with the right to remove or replace the authorized fiduciary. It is similar to Section 301(a) of the Uniform Trust Code except that it expressly recognizes that if the first-trust instrument authorizes certain persons to receive notice on behalf of incapacitated beneficiaries or other persons, such rules should also apply for purposes of notice under Section 15-16-907 .

Subsection (2) provides that the first-trust instrument or general rules in the state's trust code or other law determine who may waive the notice period under Section 15-16-907 or consent to certain modifications under Section 15-16-916 and Section 15-16-918 . It is similar to Section 301(b) of the Uniform Trust Code except that it expressly recognizes that if the first-trust instrument authorizes certain persons to consent on behalf of minor or incapacitated persons, such rules should also apply for purposes of waiving the notice period under Section 15-16-907 or consenting to modifications under Section 15-16-916 or Section 15-16-918 .

Subsection (3) makes clear that a person who represents another may file a court petition under Section 15-16-909 on behalf of the person represented. This includes the Attorney General or other official with enforcement authority over charitable interests. See Section 15-16-902(5) for the definition of “charitable interest.”

Subsection (4) prohibits a settlor from representing a beneficiary. Subsection (4) is similar to optional subsection (d) of Section 301 of the Uniform Trust Code, which was added to the Uniform Trust Code because of a concern that allowing a settlor to represent a beneficiary could cause the trust to be included in the settlor's estate.

COLORADO COMMENT

Section 8 of the Uniform Trust Decanting Act assumes that an enacting jurisdiction has a trust code that deals with representation that is, when one person has authority to represent and bind another person with respect to trust matters. Existing Colorado law allows for representation in formal proceedings and judicially supervised settlements, C.R.S. § 15-10-403 , but Colorado statutory law does not address representation when there is no judicial proceeding. To address this issue and allow representation in a trust decanting without involving the court under C.R.S. § 15-16-909 , subsections (5) through (11) have been added to C.R.S. § 15-16-908 to allow for representation in connection with a trust decanting. Those provisions are based on Article 3 of the Uniform Trust Code.