§ 18-13-10 - Determination of incapacity – Effect.
SECTION 18-13-10
§ 18-13-10 Determination of incapacity– Effect. – (a) The custodial trustee shall administer the custodial trust as for anincapacitated beneficiary if:
(1) The custodial trust was created under § 18-13-5;
(2) The transferor has so directed in the instrument creatingthe custodial trust; or
(3) The custodial trustee has determined that the beneficiaryis incapacitated.
(b) A custodial trustee may determine that the beneficiary isincapacitated in reliance upon:
(1) Previous direction or authority given by the beneficiarywhile not incapacitated; including direction or authority pursuant to a durablepower of attorney,
(2) The certificate of the beneficiary's physician; or
(3) Other persuasive evidence.
(c) If a custodial trustee for an incapacitated beneficiaryreasonably concludes that the beneficiary's incapacity has ceased, or thatcircumstances concerning the beneficiary's ability to manage property andbusiness affairs have changed since the creation of a custodial trust directingadministration as for an incapacitated beneficiary, the custodial trustee mayadminister the trust as for a beneficiary who is not incapacitated.
(d) On petition of the beneficiary, the custodial trustee, orother person interested in the custodial trust property or the welfare of thebeneficiary, the court shall determine whether the beneficiary is incapacitated.
(e) Absent determination of incapacity of the beneficiaryunder subsection (b) or (d) of this section, a custodial trustee who has reasonto believe that the beneficiary is incapacitated shall administer the custodialtrust in accordance with the provisions of this chapter applicable to anincapacitated beneficiary.
(f) Incapacity of a beneficiary does not terminate:
(1) The custodial trust;
(2) Any designation of a successor custodial trustee;
(3) Rights or powers of the custodial trustee; or
(4) Any immunities of third persons acting on instructions ofthe custodial trustee.