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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
NAYS--None
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
H0166|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature First Regular Session - 1999IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 166 BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE 1 AN ACT 2 RELATING TO GUARDIANSHIP; AMENDING SECTION 15-5-303, IDAHO CODE, TO PROVIDE 3 FOR PARTICIPATION OF THE ALLEGED INCAPACITATED PERSON AND TO PROVIDE ADDI- 4 TIONAL EVALUATION; AMENDING SECTION 15-5-308, IDAHO CODE, TO GOVERN QUALI- 5 FICATIONS OF THE VISITOR AND TO SPECIFY CONTENTS OF THE REPORT; AMENDING 6 SECTION 15-5-310, IDAHO CODE, TO GOVERN THE APPOINTMENT AND POWERS OF A 7 TEMPORARY GUARDIAN; AND AMENDING SECTION 15-5-311, IDAHO CODE, TO ESTAB- 8 LISH PREFERENCE TO THE PERSON PREFERRED BY THE INCAPACITATED PERSON FOR 9 APPOINTMENT AS GUARDIAN. 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: 13 15-5-303. PROCEDURE FOR COURT APPOINTMENT OF A GUARDIAN OF AN INCAPACI- 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. 2 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 , tocross-examine 13 witnesses, including the court-appointed physician , mental health pro- 14 fessional, or otherqualifiedpersonand15 qualified to evaluate the alleged impairment, as well as the 16 court-appointed visitor ,. The issue17 and otherwise participate in the hearing. The hearing may be 18determined ata closed hearingifupon the 19 request of the person alleged to be incapacitated or his counsel20so requestsand 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 ,orpsychology, 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 3 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) Ifan incapacitated person has9no 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, mayexercise the power of16a general guardian pending notice and hearing on the petition17 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. 34 35 (c)If an appointed guardian is not effectively per-36forming his duties and the court further finds that the welfare of the inca-37pacitated person requires immediate action, it may, with orAn 38 emergency guardian may be appointed without notice, appoint a39temporary guardian forto the alleged inca- 40 pacitated personhaving the powers specified in the order for a speci-41fied period not to exceed six (6) months. The authority of any permanent42guardian previously appointed by the court is suspended so long as a temporary43guardian has authority. A temporary guardian may be removed at any time. A44temporary guardian shall make any report the court requires. In other respects45the provisions of this code concerning guardians apply to temporary guardians46or 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- 4 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. 15 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 ; 26 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 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
(208)332-1000
STATEMENT OF PURPOSE/ FISCAL NOTE Bill No. H 166