75-5-312 - General powers and duties of guardian -- Penalties.
75-5-312. General powers and duties of guardian -- Penalties.
(1) A guardian of an incapacitated person has only the powers, rights, and dutiesrespecting the ward granted in the order of appointment under Section 75-5-304.
(2) Absent a specific limitation on the guardian's power in the order of appointment, theguardian has the same powers, rights, and duties respecting the ward that a parent has respectingthe parent's unemancipated minor child except that a guardian is not liable to third persons for actsof the ward solely by reason of the parental relationship. In particular, and without qualifying theforegoing, a guardian has the following powers and duties, except as modified by order of thecourt:
(a) To the extent that it is consistent with the terms of any order by a court of competentjurisdiction relating to detention or commitment of the ward, the guardian is entitled to custody ofthe person of the ward and may establish the ward's place of abode within or without this state.
(b) If entitled to custody of the ward the guardian shall provide for the care, comfort, andmaintenance of the ward and, whenever appropriate, arrange for the ward's training andeducation. Without regard to custodial rights of the ward's person, the guardian shall takereasonable care of the ward's clothing, furniture, vehicles, and other personal effects andcommence protective proceedings if other property of the ward is in need of protection.
(c) A guardian may give any consents or approvals that may be necessary to enable theward to receive medical or other professional care, counsel, treatment, or service.
(d) If no conservator for the estate of the ward has been appointed, the guardian may:
(i) institute proceedings to compel any person under a duty to support the ward or to paysums for the welfare of the ward to perform that duty; or
(ii) receive money and tangible property deliverable to the ward and apply the money andproperty for support, care, and education of the ward; but the guardian may not use funds fromthe ward's estate for room and board which the guardian, the guardian's spouse, parent, or childhave furnished the ward unless a charge for the service is approved by order of the court madeupon notice to at least one adult relative in the nearest degree of kinship to the ward in whichthere is an adult. The guardian must exercise care to conserve any excess for the ward's needs.
(e) (i) A guardian is required to report the condition of the ward and of the estate whichhas been subject to the guardian's possession or control, as required by the court or court rule.
(ii) The guardian shall, for all estates in excess of $50,000, excluding the residenceowned by the ward, send a report with a full accounting to the court on an annual basis. Forestates less than $50,000, excluding the residence owned by the ward, the guardian shall fill outan informal annual report and mail the report to the court. The report shall include the following:a statement of assets at the beginning and end of the reporting year, income received during theyear, disbursements for the support of the ward, and other expenses incurred by the estate. Theguardian shall also report the physical conditions of the ward, the place of residence, and a list ofothers living in the same household. The court may require additional information. The formsfor both the informal report for estates under $50,000, excluding the residence owned by theward, and the full accounting report for larger estates shall be approved by the Judicial Council. This annual report shall be examined and approved by the court. If the ward's income is limitedto a federal or state program requiring an annual accounting report, a copy of that report may besubmitted to the court in lieu of the required annual report.
(iii) Corporate fiduciaries are not required to petition the court, but shall submit theirinternal report annually to the court. The report shall be examined and approved by the court.
(iv) The guardian shall also render an annual accounting of the status of the person to thecourt which shall be included in the petition or the informal annual report as required underSubsection (2)(e). If a fee is paid for an accounting of an estate, no fee shall be charged for anaccounting of the status of a person.
(v) If a guardian:
(A) makes a substantial misstatement on filings of annual reports;
(B) is guilty of gross impropriety in handling the property of the ward; or
(C) willfully fails to file the report required by this subsection, after receiving writtennotice from the court of the failure to file and after a grace period of two months has elapsed, thecourt may impose a penalty in an amount not to exceed $5,000. The court may also orderrestitution of funds misappropriated from the estate of a ward. The penalty shall be paid by theguardian and may not be paid by the estate.
(vi) These provisions and penalties governing annual reports do not apply if the guardianis the parent of the ward.
(f) If a conservator has been appointed, all of the ward's estate received by the guardian inexcess of those funds expended to meet current expenses for support, care, and education of theward must be paid to the conservator for management as provided in this code; and the guardianmust account to the conservator for funds expended.
(3) Any guardian of one for whom a conservator also has been appointed shall control thecustody and care of the ward and is entitled to receive reasonable sums for services and for roomand board furnished to the ward as agreed upon between the guardian and the conservator, if theamounts agreed upon are reasonable under the circumstances. The guardian may request theconservator to expend the ward's estate by payment to third persons or institutions for the ward'scare and maintenance.
Amended by Chapter 290, 1992 General Session