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2018 Utah Code
Title 75 - Utah Uniform Probate Code
Chapter 5 - Protection of Persons Under Disability and Their Property
Part 3 - Guardians of Incapacitated Persons
Section 312.5 - Association between an adult ward and a relative of the adult ward.
Universal Citation: UT Code § 75-5-312.5 (2018)
Effective 5/8/2018
75-5-312.5. Association between an adult ward and a relative of the adult ward.
Amended by Chapter 244, 2018 General Session
75-5-312.5. Association between an adult ward and a relative of the adult ward.
- (1) As used in this section:
- (a) "Associate" or "association" means:
- (i) visitation of an adult ward by a relative or qualified acquaintance; or
- (ii) communication between an adult ward and a relative or qualified acquaintance in any form, including by telephone, mail, or electronic communication.
- (b) "Qualified acquaintance" means an individual, other than a relative of the adult ward, who:
- (i) has established a significant, mutual friendship with the adult ward; or
- (ii) is clergy in the adult ward's religion or religious congregation.
- (c) "Relative" means an adult ward's spouse, parent, step-parent, child, step-child, sibling, step-sibling, half-sibling, grandparent, grandchild, uncle, aunt, nephew, niece, or first cousin.
- (a) "Associate" or "association" means:
- (2)
- (a) Except as otherwise provided by court order, a guardian may not restrict or prohibit the right of an adult ward to associate with a relative or qualified acquaintance of the adult ward.
- (b) If an adult ward is unable to express consent to visitation by a relative or a qualified acquaintance of the adult ward, the consent of the adult ward is presumed based on evidence of a prior relationship between the adult ward and the relative or qualified acquaintance of the adult ward.
- (c) A guardian may not permit a relative or qualified acquaintance of an adult ward to associate with the adult ward:
- (i) if a court order prohibits the association;
- (ii) in a manner prohibited by court order; or
- (iii) if the adult ward expresses a desire to not associate with the relative or qualified acquaintance.
- (3) A guardian may, as part of the initial guardianship proceeding, petition the court to issue an order:
- (a) prohibiting or placing conditions on association between an adult ward and a relative or qualified acquaintance of the adult ward; or
- (b) granting the guardian the authority to prohibit or place conditions on association between an adult ward and a relative or qualified acquaintance of the adult ward.
- (4) A guardian may, at any time after the initial guardianship proceeding:
- (a) petition the court to issue an order described in Subsection (3) or to rescind or modify an order described in Subsection (3); or
- (b) petition, subject to notice, the court on an emergency basis to issue a temporary order until further order of the court described in Subsection (3) or to rescind or modify an order described in Subsection (3).
- (5) An adult ward, a relative of an adult ward, or a qualified acquaintance of an adult ward may, at any time after the initial guardianship proceeding, petition the court to rescind or modify an order described in Subsection (3).
- (6) If a guardian violates Subsection (2), the adult ward, a relative of the adult ward, or a qualified acquaintance of the adult ward may do one or more of the following, as applicable:
- (a) petition the court to issue an order to show cause why the guardian should not be held in contempt of court;
- (b) seek an injunction to enforce compliance by the guardian with the law and any applicable court order; or
- (c) petition the court to have the guardian removed as guardian of the adult ward.
- (7) For a hearing on a petition filed under this section, a court:
- (a) may appoint a court visitor to meet with the adult ward to determine the wishes of the adult ward regarding association;
- (b) shall give notice and an opportunity to be heard to the guardian, the adult ward, and the relative or qualified acquaintance;
- (c) shall preserve the right of the adult ward to be present at the hearing; and
- (d) may order supervised visitation by the relative or qualified acquaintance before the hearing.
- (8) A court may not enter an order prohibiting or placing restrictions on association between an adult ward and a relative or qualified acquaintance, unless the court finds by a preponderance of the evidence that:
- (a) the adult ward desires the prohibition or restriction;
- (b) if the adult ward had the capacity to make a knowing and intelligent decision regarding the association, the adult ward would prohibit the association or impose the restriction; or
- (c) the prohibition or restriction is the least restrictive means necessary to protect the health or welfare of the adult ward.
- (9) In making the determination described in Subsection (8), the court may consider any relevant evidence, including:
- (a) the wishes of the adult ward, expressed during or before the guardianship;
- (b) the history of the relationship between the adult ward and the relative or qualified acquaintance;
- (c) any history of criminal activity, abuse, neglect, or violence by the relative or qualified acquaintance; or
- (d) whether a protective order was ever issued against the relative or qualified acquaintance with respect to the adult ward.
- (10) Except as provided in Subsection (11), the guardian shall have the burden of proof when:
- (a) seeking an order prohibiting association or placing restrictions on association with a relative or qualified acquaintance of the adult ward;
- (b) modifying an order to place additional prohibitions or restrictions on association with a relative or qualified acquaintance of the adult ward; or
- (c) opposing an action described in Subsection (6)(a) or (b).
- (11) The relative or qualified acquaintance shall have the burden of proof if the relative or qualified acquaintance is seeking to modify an order previously entered by a court under this section.
- (12)
- (a) If, in a proceeding under this section, the court finds that the petition was filed frivolously or in bad faith, the court shall award attorney fees to a party opposing the petition.
- (b) If, in a proceeding under this section, the court finds that the guardian is in contempt of court or has acted frivolously or in bad faith in prohibiting or restricting association, the court:
- (i) may award attorney fees to the prevailing party; and
- (ii) may impose a sanction, not to exceed $1,000, against the guardian.
- (c) A court shall prohibit attorney fees awarded under this section from being paid by the adult ward or the adult ward's estate.
Amended by Chapter 244, 2018 General Session
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