(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.
Consent of or waiver by a person with authority to represent and bind another person under afirst-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.
A person with authority to represent and bind another person under a first-trust instrument orthis part 9 may file an application under section 15-16-909 on behalf of the person represented.
A settlor may not represent or bind a beneficiary under this part 9.
To the extent there is no conflict of interest between the holder of a general testamentarypower 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.
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 conservator may represent and bind the protected person's estate;
A guardian may represent and bind the ward if a conservator of the ward's estate has notbeen appointed;
An agent having authority to act with respect to the principal's beneficial interest in the trustmay represent and bind the principal;
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;
A personal representative of a decedent's estate may represent and bind interested personswith respect to the estate; and
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.
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.
If section 15-16-909 is invoked and the court determines that an interest is not representedunder 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.
A representative may act on behalf of the individual represented with respect to an exerciseof the decanting power regardless of whether a judicial proceeding concerning the exercise of the decanting power is pending.
In making decisions, a representative may consider general benefit accruing to the livingmembers of the represented individual's family.
The authority to represent and bind another person under this section applies to the resultsof 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.
Source: L. 2016: Entire part added, (SB 16-085), ch. 228, p. 876, § 1, effective August 10. 15-16-909. Court involvement. (1) On application of an authorized fiduciary, a person entitled to notice under section 15-16-907 (3), a beneficiary, or with respect to a charitable interest the attorney general or other person that has standing to enforce the charitable interest, the court may:
Provide instructions to the authorized fiduciary regarding whether a proposed exercise of thedecanting power is permitted under this part 9 and consistent with the fiduciary duties of the authorized fiduciary;
Appoint a special fiduciary and authorize the special fiduciary to determine whether thedecanting power should be exercised under this part 9 and to exercise the decanting power;
Approve an exercise of the decanting power;
Determine that a proposed or attempted exercise of the decanting power is ineffective because:
After applying section 15-16-922, the proposed or attempted exercise does not or did notcomply with this part 9; or
The proposed or attempted exercise would be or was an abuse of the fiduciary's discretion ora breach of fiduciary duty;
Determine the extent to which section 15-16-922 applies to a prior exercise of the decantingpower;
Provide instructions to the trustee regarding the application of section 15-16-922 to a priorexercise of the decanting power; or
Order other relief to carry out the purposes of this part 9.
(2) On application of an authorized fiduciary, the court may approve:
An increase in the fiduciary's compensation under section 15-16-916; or
A modification under section 15-16-918 of a provision granting a person the right to removeor replace the fiduciary.
Source: L. 2016: Entire part added, (SB 16-085), ch. 228, p. 877, § 1, effective August 10.