CHAPTER 59-11
REPRESENTATION
59-11-01. (301) Representation - Basic effect.
1.
Notice to a person who may represent and bind another person under this chapter<br>has the same effect as if notice were given directly to the other person. Notice of a<br>hearing on any petition for a judicial hearing must be given as provided in the North<br>Dakota Rules of Civil Procedure.
2.
The consent of a person who may represent and bind another person under this<br>chapter is binding on the person represented unless the person represented objects<br>to the representation to the trustee or representative before the consent would<br>otherwise have become effective.
3.
Except as otherwise provided in sections 59-12-11 and 59-14-02, a person who<br>under this chapter may represent a settlor who lacks capacity may receive notice<br>and give a binding consent on the settlor's behalf.
4.
A settlor may not represent and bind a beneficiary under this chapter with respect to<br>the termination or modification of a trust under subsection 1 of section 59-12-11.
59-11-02. (302) Representation by holder of general power of appointment. The
holder of a presently exercisable general power of appointment and the persons represented with<br>respect to the particular question or dispute may represent and bind persons whose interests, as<br>permissible appointees, takers in default, or otherwise, are subject to the power.
The term
"presently exercisable general power of appointment" includes a testamentary general power of<br>appointment having no conditions precedent to its exercise other than the death of the holder, the<br>validity of the holder's last will and testament, and the inclusion of a provision in the will sufficient<br>to exercise this power.
59-11-03. (303) Representation by fiduciaries and parents. To the extent there is no
conflict of interest between the representative and the person represented or among those being<br>represented with respect to a particular question or dispute:
1.
A conservator may represent and bind the estate that the conservator controls to the<br>extent of the powers and authority conferred upon conservators generally or by court<br>order.
2.
A guardian may represent and bind the ward if a conservator of the ward's estate<br>has not been appointed to the extent of the powers and authority conferred upon<br>guardians generally or by court order.
3.
An agent under a power of attorney or having other written authority to act with<br>respect to the particular question or dispute may represent and bind the principal.
4.
A trustee may represent and bind the beneficiaries of the trust.
5.
A personal representative of a decedent's estate may represent and bind persons<br>interested in the estate.
6.
A parent may represent and bind the parent's minor or unborn child if a conservator<br>or guardian for the child has not been appointed. If a disagreement arises between<br>parents seeking to represent the same minor child:
a.
The parent who is a beneficiary of the trust that is the subject of the<br>representation is entitled to represent the minor child;
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b.
If both parents are beneficiaries of the trust that is the subject of the<br>representation, the parent who is a lineal descendant of the settlor is entitled to<br>represent the minor child;
c.
If neither parent is a beneficiary of the trust that is the subject of the<br>representation, the parent who is a lineal descendant of the settlor is entitled to<br>represent the minor child; and
d.
If neither parent is a beneficiary or a lineal descendant of the settlor of the trust<br>that is the subject of the representation, a guardian ad litem must be appointed<br>to represent the minor child.
7.
A person may represent and bind that person's unborn issue.
59-11-04. (304) Representation by person having substantially identical interest.
Unless otherwise represented, a minor, incapacitated or unborn individual, or a person whose<br>identity or location is unknown and not reasonably ascertainable, may be represented by and<br>bound by another having a substantially identical interest with respect to the particular question<br>or dispute, but only to the extent there is no conflict of interest between the representative and<br>the person represented with respect to the particular question or dispute.
59-11-05. (305) Appointment of representative.
1.
If the court determines that an interest is not represented under this chapter, or that<br>the otherwise available representation might be inadequate, the court may appoint a<br>representative to receive notice, give consent, and otherwise represent, bind, and<br>act on behalf of a minor, incapacitated or unborn individual, or a person whose<br>identity or location is unknown and not reasonably ascertainable. A representative<br>may be appointed to represent several persons or interests.
2.
A representative may act on behalf of the individual represented with respect to any<br>matter arising under chapters 59-09, 59-10, 59-11, 59-12, 59-13, 59-14, 59-15,<br>59-16, 59-17, 59-18, and 59-19, whether or not a judicial proceeding concerning the<br>trust is pending.
3.
In making decisions, a representative may consider general benefit accruing to the<br>living members of the individual's family.
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Document Outline
chapter 59-11 representation
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