SENATE BILL NO. 1244

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Bill Status



S1244................................................by JUDICIARY AND RULES
GUARDIANS - CONSERVATORS - Amends existing law to prohibit appointment of a
convicted felon as a guardian or conservator, except upon a showing by
clear and convincing evidence that the appointment is in the best interest
of the incapacitated or protected person.
                                                                        
01/29    Senate intro - 1st rdg - to printing
01/30    Rpt prt - to Jud
02/12    Rpt out - rec d/p - to 2nd rdg
02/13    2nd rdg - to 3rd rdg
02/19    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
      Calabretta, Cameron, Compton, Davis, Gannon, Geddes, Goedde, Hill,
      Ingram, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
      McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
      Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Darrington, Kennedy
    Floor Sponsor - Lodge
    Title apvd - to House
02/20    House intro - 1st rdg - to Jud
03/02    Rpt out - rec d/p - to 2nd rdg
03/03    2nd rdg - to 3rd rdg
03/08    3rd rdg - PASSED - 67-0-3
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell,
      Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
      Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Gagner, Garrett, Henbest, Jaquet,
      Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin,
      McKague, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen,
      Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison,
      Rydalch, Sali, Sayler, Schaefer, Shirley, Skippen, Smith(30),
      Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr.
      Speaker
      NAYS -- None
      Absent and excused -- Harwood, Jones, Shepherd
    Floor Sponsor - Kulczyk
    Title apvd - to Senate
03/09    To enrol
03/10    Rpt enrol - Pres signed
03/11    Sp signed
03/12    To Governor
03/16    Governor signed
         Session Law Chapter 52
         Effective: 07/01/04

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1244
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO PERSONS ELIGIBLE  FOR  APPOINTMENT  AS  GUARDIAN  OR  CONSERVATOR;
  3        AMENDING  SECTION  15-5-311, IDAHO CODE, TO PROHIBIT APPOINTMENT OF A CON-
  4        VICTED FELON AS GUARDIAN EXCEPT UPON CONDITIONS  SPECIFIED;  AND  AMENDING
  5        SECTION 15-5-410, IDAHO CODE, TO PROHIBIT APPOINTMENT OF A CONVICTED FELON
  6        AS CONSERVATOR EXCEPT UPON CONDITIONS SPECIFIED.
                                                                        
  7    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  8        SECTION  1.  That Section 15-5-311, Idaho Code, be, and the same is hereby
  9    amended to read as follows:
                                                                        
 10        15-5-311.  WHO MAY BE GUARDIAN -- PRIORITIES. (a)  Any  competent  person,
 11    except  as  set  forth  hereafter,  or a suitable institution may be appointed
 12    guardian of an incapacitated person.
 13        (b)  The person preferred by the incapacitated person shall  be  appointed
 14    guardian unless good cause be shown why appointment of such person is contrary
 15    to the best interests of the incapacitated person. If the incapacitated person
 16    is  unable to express a preference, any previous expression, including a dura-
 17    ble power of attorney for health care, may be considered by the court.
 18        (c)  Persons who are not disqualified have  priority  for  appointment  as
 19    guardian in the following order:
 20        (1)  The  person  preferred  by  the incapacitated person. The court shall
 21        always consider the wishes expressed by an incapacitated person as to  who
 22        shall be appointed guardian;
 23        (2)  The spouse of the incapacitated person;
 24        (3)  An adult child of the incapacitated person;
 25        (4)  A parent of the incapacitated person, including a person nominated by
 26        will or other writing signed by a deceased parent;
 27        (5)  Any relative of the incapacitated person with whom he has resided for
 28        more than six (6) months prior to the filing of the petition;
 29        (6)  A person nominated by the person who is caring for him or paying ben-
 30        efits to him.
 31        (d)  No  convicted  felon shall be appointed as a guardian of an incapaci-
 32    tated person unless the court finds by clear and convincing evidence that such
 33    appointment is in the best interests of the incapacitated person.
                                                                        
 34        SECTION 2.  That Section 15-5-410, Idaho Code, be, and the same is  hereby
 35    amended to read as follows:
                                                                        
 36        15-5-410.  WHO  MAY  BE APPOINTED CONSERVATOR -- PRIORITIES. (a) The court
 37    may appoint an individual, except as set forth  hereafter,  or  a  corporation
 38    with general power to serve as trustee, as conservator of the estate of a pro-
 39    tected  person. The following are entitled to consideration for appointment in
 40    the order listed:
 41        (1)  an individual or corporation nominated by the protected person if  he
                                                                        
                                           2
                                                                        
  1        is  fourteen  (14)  or  more  years  of age and has, in the opinion of the
  2        court, sufficient mental capacity to make an intelligent choice;
  3        (2)  the spouse of the protected person;
  4        (3)  an adult child of the protected person;
  5        (4)  a conservator, guardian of property or other like fiduciary (but  not
  6        a  fiduciary  serving  only  as  a trustee) appointed or recognized by the
  7        appropriate court of any other jurisdiction in which the protected  person
  8        resides;
  9        (5)  a  parent  of the protected person, or a person nominated by the will
 10        of a deceased parent;
 11        (6)  any relative of the protected person with whom  he  has  resided  for
 12        more than six (6) months prior to the filing of the petition;
 13        (7)  a person nominated by the person who is caring for him or paying ben-
 14        efits to him.
 15        (b)  A  person  in priorities (2), (3), (4), (5), or (6) of subsection (a)
 16    of this section may nominate in writing a person to serve in his  stead.  With
 17    respect  to  persons having equal priority, the court is to select the one who
 18    is best qualified of those willing to serve. The court  for  good  cause,  may
 19    pass  over  a person having priority and appoint a person having less priority
 20    or no priority.
 21        (c)  No convicted felon shall be appointed as a conservator of the  estate
 22    of  a protected person unless the court finds by clear and convincing evidence
 23    that such appointment is in the best interests of the protected person.

Statement of Purpose / Fiscal Impact


                                
                                 
                       STATEMENT OF PURPOSE

                            RS 13728


As a result of the guardianship monitoring process in Ada County, and to
a lesser extent elsewhere in Idaho, and from national reports of physical
or financial or emotional abuse of incapacitated persons by appointed
guardians or conservators, it has been determined that convicted felons
constitute a disproportionate number of such abusers.  Therefore, this
bill amends the appointment criteria for a guardian and conservator to
provide that a convicted felon is to be appointed only when the court
finds by clear and convincing evidence that the appointment is in the
best interests of the incapacitated person.  This higher standard will
protect the incapacitated person, while still allowing such an
appointment to be made in appropriate cases.




                          FISCAL NOTE
                                



This bill will have no fiscal impact.





CONTACT:  Robert L. Aldridge
         (208) 336-9880  
                                                   S 1244