1999 Legislation
Print Friendly

HOUSE BILL NO. 166 – Incapacitated persons, guardianship


View Daily Data Tracking History

View Bill Text

View Statement of Purpose / Fiscal Impact

Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Daily Data Tracking History

H0166................................by JUDICIARY, RULES AND ADMINISTRATION
INCAPACITATED PERSONS - GUARDIANSHIP - Amends existing law to provide, in
the procedures governing guardianship, additional protection to persons who
are alleged to be incapacitated and in need of a guardian.

02/04    House intro - 1st rdg - to printing
02/05    Rpt prt - to Jud
02/24    Rpt out - rec d/p - to 2nd rdg
02/25    2nd rdg - to 3rd rdg
02/26    3rd rdg - PASSED - 58-3-9
      AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Black, Bruneel,
      Callister, Chase, Crow, Cuddy, Deal, Denney, Field(13), Field(20),
      Gagner, Geddes, Hadley, Hammond, Hansen(23), Henbest, Hornbeck,
      Jaquet, Jones, Judd, Kempton, Kendell, Kunz, Lake, Limbaugh, Linford,
      Loertscher, Mader, Marley, McKague, Meyer, Montgomery, Mortensen,
      Moyle, Pomeroy, Reynolds, Ridinger, Ringo, Robison, Sali, Schaefer,
      Sellman, Smylie, Stevenson, Stone, Taylor(Taylor), Tilman, Tippets,
      Watson, Wheeler, Williams, Wood, Zimmermann
      NAYS -- Clark, Ellsworth, Smith
      Absent and excused -- Boe, Campbell, Gould, Hansen(29), Kellogg,
      Pischner, Stoicheff, Trail, Mr Speaker
    Floor Sponsor - Bruneel
    Title apvd - to Senate
03/01    Senate intro - 1st rdg - to Jud
03/08    Rpt out - rec d/p - to 2nd rdg
03/09    2nd rdg - to 3rd rdg
03/11    3rd rdg - PASSED - 30-0-5
      AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron,
      Danielson, Darrington, Davis, Dunklin, Frasure, Geddes, Hawkins,
      Ingram, Ipsen, Keough, Lee, McLaughlin, Noh, Richardson, Riggs,
      Risch, Sandy, Schroeder, Sorensen, Stegner, Stennett, Thorne, Twiggs,
      Wheeler, Whitworth
      Absent and excused--Branch, Crow, Deide, King, Parry
    Floor Sponsor - Stegner
    Title apvd - to House
03/12    To enrol
03/15    Rpt enrol - Sp signed
03/16    Pres signed - to Governor
03/19    Governor signed
         Session Law Chapter 128
         Effective: 07/01/99

Bill Text


 ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
Fifty-fifth Legislature                 First Regular Session - 1999

                             IN THE HOUSE OF REPRESENTATIVES

                                    HOUSE BILL NO. 166


 1                                        AN ACT

10    Be It Enacted by the Legislature of the State of Idaho:

11        SECTION  1.  That Section 15-5-303, Idaho Code, be, and the same is hereby
12    amended to read as follows:

14    TATED  PERSON.  (a)  The  incapacitated person or any person interested in his
15    welfare may petition for a finding of incapacity and appointment of  a  guard-
16    ian,  limited  or  general.   It is desirable to make available the least
17    restrictive form of guardianship to assist  persons  who  are  only  partially
18    incapable of caring for their own needs. Recognizing that every individual has
19    unique needs and differing abilities, the public welfare should be promoted by
20    establishing  a guardianship that permits incapacitated persons to participate
21    as fully as possible in all decisions affecting them; that assists  such  per-
22    sons  in  meeting  the  essential  requirements  for their physical health and
23    safety, in protecting their rights, in managing their financial resources, and
24    in developing or regaining their abilities to the maximum extent possible; and
25    that accomplishes these objectives through providing, in each case,  the  form
26    of  guardianship  that least interferes with legal capacity of a person to act
27    in his own behalf. 
28        (b)  Upon the filing of a petition, the court shall set a date for hearing
29    on the issues of incapacity and unless the allegedly incapacitated person  has
30    counsel  of  his  own choice, it shall appoint an attorney to represent him in
31    the proceeding, who shall have the powers and duties of a guardian  ad  litem.
32    The  person  alleged  to  be incapacitated shall be examined by a physician or
33    other qualified person appointed by the court who shall submit his  report  in
34    writing  to  the  court.   The court may, in appropriate cases, appoint a
35    mental  health  professional,  defined  as   a   psychiatrist,   psychologist,
36    gerontologist,  licensed  social worker, or licensed counselor, to examine the
37    proposed ward and submit a written report to  the  court.    The  person
38    alleged to be incapacitated also shall be interviewed by a visitor sent by the
39    court.  The visitor shall also interview the person who appears to have caused
40    the petition to be filed and any person who is nominated to serve as guardian,
41    and visit the present place of abode of the person alleged to be incapacitated
42    and the place it is proposed that  he  will  be  detained  or  reside  if  the
43    requested  appointment  is made and submit his report in writing to the court.


 1    Where possible without undue delay and expenses beyond the ability to  pay  of
 2    the  allegedly  incapacitated  person, the court, in formulating the judgment,
 3    may utilize the service of any public or charitable agency that offers  or  is
 4    willing  to  evaluate  the condition of the allegedly incapacitated person and
 5    make recommendations to the court regarding the most appropriate form of state
 6    intervention in his affairs.
 7        (c)   Unless excused by the court for good cause, the proposed guard-
 8    ian shall attend the hearing.  The person alleged to be incapacitated is
 9    entitled to be present    at the hearing in person, and to  see  or
10    hear  all  evidence bearing upon his condition  . He is entitled to
11    be  re present ed  by counsel, to present evidence 
12    and subpoena witnesses and documents ,  to    cross-  examine
13    witnesses,  including  the court-appointed physician , mental health pro-
14    fessional,  or other  qualified    person    and  
15      qualified  to  evaluate  the  alleged impairment, as well as  the
16     court-appointed  visitor ,   .  The  issue  
17      and  otherwise  participate  in  the hearing. The hearing  may be
18     determined at  a closed hearing  if      upon  the
19    request  of  the person alleged to be incapacitated or his counsel 
20    so requests   and a showing of good cause. After  appointment,  the
21    guardian  shall  immediately  provide written notice of any proposed change in
22    the permanent address of the ward to the  court  and  all  interested  parties
23    .

24        SECTION  2.  That Section 15-5-308, Idaho Code, be, and the same is hereby
25    amended to read as follows:

26        15-5-308.  VISITOR IN GUARDIANSHIP PROCEEDING.  (1)  A  visitor  is,  with
27    respect  to  guardianship  proceedings,  a  person  who  is  trained  in  law,
28    nursing  ,      or      psychology,    social
29    work  ,  or  counseling   or has other qualifications that make him
30    suitable to perform the function  and  is  an  officer,  employee  or  special
31    appointee of the court with no personal interest in the proceedings.  The
32    visitor's report is to include the following information: a description of the
33    nature, cause and degree of incapacity, and the basis upon which this judgment
34    is  made; a description of the needs of the person alleged to be incapacitated
35    for care and treatment and the probable residential requirements;  an  evalua-
36    tion  of  the appropriateness of the guardian or conservator whose appointment
37    is sought and a description of the steps the proposed guardian or  conservator
38    has  taken or intends to take to meet the needs of the incapacitated person; a
39    description of the abilities of the alleged incapacitated person and a  recom-
40    mendation  as  to  whether  a  full or limited guardianship or conservatorship
41    should be ordered and, if limited, the visitor's recommendation of   the  spe-
42    cific  areas  of authority the limited guardianship or conservator should have
43    and the limitations to be placed on the incapacitated person;  any  expression
44    of approval or disapproval made by the alleged incapacitated person concerning
45    the  proposed  guardianship  or  conservatorship; an analysis of the financial
46    status and assets of the alleged incapacitated person; identification of  peo-
47    ple with significant interest in the welfare of the alleged incapacitated per-
48    son who should be informed of the proceedings; a description of the qualifica-
49    tions and relationship of the proposed guardian or conservator; an explanation
50    of  how  the  alleged incapacitated person responded to the advice of the pro-
51    ceedings and the right to be present at the hearing on the  petition;  in  the
52    case  of  conservatorship,  a recommendation for or against a bond requirement
53    for the proposed conservator, taking into account the financial  statement  of


 1    the person whose appointment is sought. 
 2        (2)  Any person appointed as a visitor shall be personally immune from any
 3    liability  for  acts, omissions or errors in the same manner as if such person
 4    were a volunteer or director under the provisions  of  section  6-1605,  Idaho
 5    Code.

 6        SECTION  3.  That Section 15-5-310, Idaho Code, be, and the same is hereby
 7    amended to read as follows:

 8        15-5-310.  TEMPORARY GUARDIANS. (a) If  an incapacitated  person  has
 9    no guardian, an emergency exists,   the court finds that a guardian
10    is  not properly performing the duties of guardian or an emergency exists such
11    that the likely result will be substantial  harm to an  alleged  incapacitated
12    person's  health,  safety,  or  welfare,  and  that  no other
13    person appears to have authority  and willingness  to  act  in  the
14    circumstances,  the  court  ,  on  petition by a person interested in the
15    alleged incapacitated person's welfare,  may  exercise the power of
16    a general guardian pending notice and hearing on  the  petition    
17    appoint  an emergency guardian whose authority may not exceed sixty (60) days.
18    The emergency guardianship must be limited to  only  those  powers  absolutely
19    necessary,  or  the  least restrictive to the proposed ward, for the immediate
20    health and safety of the proposed ward until such time as a full  hearing  may
21    be  held  in  the  matter  and  the emergency guardian may exercise only those
22    powers specified in the order. Emergency letters of guardianship  shall  allow
23    the  temporary  guardian  only such access to the proposed ward's assets as is
24    necessary to provide and pay for the  proposed  ward's  necessities  of  life,
25    including  short  and long-term health care, but shall expressly deny a tempo-
26    rary guardian the right to have the temporary guardian's  name  added  to  any
27    assets of the proposed ward pending a hearing on the guardianship .
28        (b)    The  court  shall appoint a guardian ad litem to represent the
29    proposed ward in all cases involving a petition for adjudication  of  incapac-
30    ity.  The alleged incapacitated person may substitute his own attorney for the
31    guardian ad litem appointed by the court. Any attorney representing an alleged
32    incapacitated person may not serve as guardian of  the  proposed  ward  or  as
33    counsel for the petitioner for guardianship.
35          (c)     If an appointed guardian is not effectively per-
36    forming his duties and the court further finds that the welfare of  the  inca-
37    pacitated  person  requires  immediate action, it may, with or   An
38    emergency guardian may be appointed  without  notice  ,  appoint  a
39    temporary  guardian  for   to  the  alleged  inca-
40    pacitated person  having the powers specified in the order for  a  speci-
41    fied  period  not  to  exceed  six  (6) months. The authority of any permanent
42    guardian previously appointed by the court is suspended so long as a temporary
43    guardian has authority. A temporary guardian may be removed  at  any  time.  A
44    temporary guardian shall make any report the court requires. In other respects
45    the  provisions of this code concerning guardians apply to temporary guardians
46      or his attorney only if the court finds from affidavit  or  other
47    sworn  testimony  that the proposed ward will be substantially harmed before a
48    hearing on the appointment can be held. If the  court  appoints  an  emergency
49    guardian  without notice to the proposed ward, the proposed ward must be given
50    notice of the appointment within forty-eight (48) hours after the appointment.
51    The court shall hold a hearing  on  the  appropriateness  of  the  appointment
52    within five (5) days after the appointment if requested by an interested party
53    at which time the court shall appoint a visitor to meet with the alleged inca-


 1    pacitated  person and make a written report to the court. The court shall also
 2    appoint a physician to examine the proposed  ward  giving  preference  to  the
 3    appointment of the proposed ward's treating physician if the proposed ward has
 4    a current treating physician .

 5        SECTION  4.  That Section 15-5-311, Idaho Code, be, and the same is hereby
 6    amended to read as follows:

 7        15-5-311.  WHO MAY BE GUARDIAN -- PRIORITIES. (a) Any competent person  or
 8    a suitable institution may be appointed guardian of an incapacitated person.
 9        (b)    The  person  preferred  by  the  incapacitated person shall be
10    appointed guardian unless good cause be shown why appointment of  such  person
11    is contrary to the best interests of the incapacitated person. If the incapac-
12    itated  person  is  unable  to  express a preference, any previous expression,
13    including a durable power of attorney for health care, may  be  considered  by
14    the court.
16          (c)    Persons  who  are  not  disqualified have priority for
17    appointment as guardian in the following order:
18        (1)  the spouse of the incapacitated person;
19        (2)  an adult child of the incapacitated person;
20        (3)  a parent of the incapacitated person, including a person nominated by
21        will or other writing signed by a deceased parent;
22        (4)  any relative of the incapacitated person with whom he has resided for
23        more than six (6) months prior to the filing of the petition;
24        (5)  a person nominated by the person who is caring for him or paying ben-
25        efits to him ;
27         (6)  the person preferred by the  incapacitated  person.  The  court
28        shall  always  consider the wishes expressed by an incapacitated person as
29        to who shall be appointed guardian .

Statement of Purpose / Fiscal Impact

                           STATEMENT OF PURPOSE        RS 08667C2

The intent of this legislation is to provide greater protection of
rights for alleged incapacitated persons in appointment of guardianships
in their behalf.

                               FISCAL NOTE
There will be no fiscal impact change above the procedure in
place under current statute. 

CONTACT:   Representative Frank Bruneel
                                      STATEMENT OF PURPOSE/ FISCAL NOTE Bill No.  H 166