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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
]]]] 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
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