§ 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:

(a) A conservator may represent and bind the protected person's estate;

(b) A guardian may represent and bind the ward if a conservator of the
ward's estate has not been appointed;

(c) An agent having authority to act with respect to the principal's beneficial
interest in the trust may represent and bind the principal;

(d) 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;

(e) A personal representative of a decedent's estate may represent and bind
interested persons with respect to the estate; and

(f) 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.

Legislative History

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