Colorado Code
Part 9 - Colorado Uniform Trust Decanting Act
§ 15-16-908. Representation

Source: L. 2016: Entire part added, (SB 16-085), ch. 228, p. 876, § 1, effective August 10.
COMMENT
Subsection (1) provides that the first-trust instrument or general rules in the state's trust code or other law determine who may receive notice of an exercise of the decanting power on behalf of a minor beneficiary or an incapacitated beneficiary, settlor, holder of a presently exercisable power of appointment or person with the right to remove or replace the authorized fiduciary. It is similar to Section 301(a) of the Uniform Trust Code except that it expressly recognizes that if the first-trust instrument authorizes certain persons to receive notice on behalf of incapacitated beneficiaries or other persons, such rules should also apply for purposes of notice under Section 15-16-907.
Subsection (2) provides that the first-trust instrument or general rules in the state's trust code or other law determine who may waive the notice period under Section 15-16-907 or consent to certain modifications under Section 15-16-916 and Section 15-16-918. It is similar to Section 301(b) of the Uniform Trust Code except that it expressly recognizes that if the first-trust instrument authorizes certain persons to consent on behalf of minor or incapacitated persons, such rules should also apply for purposes of waiving the notice period under Section 15-16-907 or consenting to modifications under Section 15-16-916 or Section 15-16-918.
Subsection (3) makes clear that a person who represents another may file a court petition under Section 15-16-909 on behalf of the person represented. This includes the Attorney General or other official with enforcement authority over charitable interests. See Section 15-16-902(5) for the definition of "charitable interest."
Subsection (4) prohibits a settlor from representing a beneficiary. Subsection (4) is similar to optional subsection (d) of Section 301 of the Uniform Trust Code, which was added to the Uniform Trust Code because of a concern that allowing a settlor to represent a beneficiary could cause the trust to be included in the settlor's estate.
COLORADO COMMENT
Section 8 of the Uniform Trust Decanting Act assumes that an enacting jurisdiction has a trust code that deals with representation that is, when one person has authority to represent and bind another person with respect to trust matters. Existing Colorado law allows for representation in formal proceedings and judicially supervised settlements, C.R.S. § 15-10-403, but Colorado statutory law does not address representation when there is no judicial proceeding. To address this issue and allow representation in a trust decanting without involving the court under C.R.S. § 15-16-909, subsections (5) through (11) have been added to C.R.S. § 15-16-908 to allow for representation in connection with a trust decanting. Those provisions are based on Article 3 of the Uniform Trust Code.