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S1245................................................by JUDICIARY AND RULES CONSERVATORS - Amends and adds to existing law to authorize appointment of temporary and emergency conservators; to govern conditions of an appointment and duties of a temporary conservator; to provide procedures governing appointment of a conservator; to provide additional powers and duties of a guardian by giving access to medical records and authorizing the guardian to seek appointment of a conservator. 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 - Sorensen 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 - 65-2-3 AYES -- Andersen, Barraclough, Bauer, Bayer, Bedke, Bell, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, 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 -- Barrett, Clark Absent and excused -- Harwood, Jones, Shepherd Floor Sponsor - Ring 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 53 Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE SENATE SENATE BILL NO. 1245 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO CONSERVATORS; AMENDING PART 4, CHAPTER 5, TITLE 15, IDAHO CODE, BY 3 THE ADDITION OF A NEW SECTION 15-5-407A, IDAHO CODE, TO AUTHORIZE APPOINT- 4 MENT OF TEMPORARY AND EMERGENCY CONSERVATORS, AND TO GOVERN CONDITIONS OF 5 AN APPOINTMENT, DUTIES OF A TEMPORARY CONSERVATOR AND PROCEDURES GOVERNING 6 THE APPOINTMENT; AND AMENDING SECTION 15-5-312, IDAHO CODE, TO FURTHER 7 GOVERN POWERS AND DUTIES OF A GUARDIAN. 8 Be It Enacted by the Legislature of the State of Idaho: 9 SECTION 1. That Part 4, Chapter 5, Title 15, Idaho Code, be, and the same 10 is hereby amended by the addition thereto of a NEW SECTION, to be known and 11 designated as Section 15-5-407A, Idaho Code, and to read as follows: 12 15-5-407A. TEMPORARY AND EMERGENCY APPOINTMENTS. (a) The court may 13 appoint upon an ex parte petition, without hearing, a person to act as tempo- 14 rary conservator, pending the final hearing, upon a finding supported by 15 statement made under oath that an emergency situation exists. The emergency 16 appointment shall remain in effect no longer than ninety (90) days, unless 17 extended for good cause upon application of the temporary conservator. 18 (b) A report from a medical doctor or a licensed psychologist to the 19 effect that the person to be protected is unable to take care of his own 20 activities of daily living, together with any one (1) of the following, shall 21 be considered an emergency situation: 22 (1) A finding that the person to be protected is unable to reasonably 23 manage said person's finances and as a result the person's assets will be 24 wasted or dissipated unless proper management is provided without delay; 25 or 26 (2) A finding that the person to be protected has been taken advantage of 27 and that the situation is likely to continue unless a temporary appoint- 28 ment is made without delay; or 29 (3) A finding that funds are needed for support, care and welfare of the 30 person to be protected and a temporary appointment is necessary to secure 31 such funding; or 32 (4) A finding that other conditions exist that in the court's determina- 33 tion necessitate the appointment of a temporary conservator. 34 (c) The duty of a temporary conservator shall be to preserve and protect 35 the assets of the estate and to provide the funding necessary for the support, 36 care and welfare of the person to be protected. The conservator shall have all 37 the powers enumerated in section 15-5-424, Idaho Code, to be exercised, how- 38 ever, only within said limited context. The court may expand the duties of the 39 temporary conservator upon application and a finding that a proposed action is 40 necessary prior to the hearing. 41 (d) A temporary conservator shall not remove any of the assets of the 42 estate from the jurisdiction of the court without a specific order to that 43 effect. 2 1 (e) The petition for appointment of a temporary conservator must be 2 accompanied by a petition for appointment of a conservator pursuant to section 3 15-5-404, Idaho Code. 4 (f) If the person to be protected is a minor, the court shall appoint a 5 guardian ad litem for said minor at the same time the temporary appointment of 6 a conservator is made. 7 (g) Upon application by an interested party and a hearing, the court may 8 limit the powers and duties of the temporary conservator. 9 (h) Notice of the appointment of a temporary conservator shall be given 10 to all interested persons by the petitioner within five (5) days after the 11 date of such appointment. 12 (i) The court shall hold a hearing on the appropriateness of the tempo- 13 rary appointment within five (5) days if requested by an interested party. In 14 such event, if a visitor and physician have not already been appointed, the 15 court shall appoint a visitor to meet with the alleged incapacitated person 16 and to make a written report to the court, and shall appoint a physician to 17 examine the proposed ward and submit a written report to the court, giving 18 preference to the appointment of the proposed ward's treating physician if the 19 proposed ward has a current treating physician. 20 SECTION 2. That Section 15-5-312, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 15-5-312. GENERAL POWERS AND DUTIES OF GUARDIAN. (a) A guardian of an 23 incapacitated person has the powers and responsibilities of a parent who has 24 not been deprived of custody of his unemancipated minor child except that a 25 guardian is not legally obligated to provide from his own funds for the ward 26 and is not liable to third persons for acts of the ward, and except as herein- 27 after limited. In particular, and without qualifying the foregoing, a guardian 28 has the following powers and duties, except as modified by order of the court 29 when the guardianship is limited: 30 (1) To the extent that it is consistent with the terms of any order by a 31 court of competent jurisdiction relating to detention or commitment of the 32 ward, he is entitled to custody of the person of his ward and may estab- 33 lish the ward's place of abode within or without this state. 34 (2) If entitled to custody of his ward he shall make provision for the 35 care, comfort and maintenance of his ward, and, whenever appropriate, 36 arrange for his training and education. Without regard to custodial rights 37 of the ward's person, he shall take reasonable care of his ward's cloth- 38 ing, furniture, vehicles and other personal effects and commence protec- 39 tive proceedings if other property of his ward is in need of protection. 40 (3) A guardian may give any consents or approvals that may be necessary 41 to enable the ward to receive medical or other professional care, counsel, 42 treatment or service. A guardian shall be automatically entitled to any 43 information governed by the health insurance portability and accountabil- 44 ity act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 164, and 45 the appointment of such guardian shall be deemed to grant such release 46 authority. 47 (4) If no conservator for the estate of the ward has been appointed,he48may:49(A) institute proceedings to compel any person under a duty to sup-50port the ward or to pay sums for the welfare of the ward to perform51his duty;52(B) receive money and tangible property deliverable to the ward and53apply the money and property for support, care and education of the3 1ward; but, he may not use funds from his ward's estate for room and2board which he, his spouse, parent, or child have furnished the ward3unless a charge for the service is approved by order of the court4made upon notice to at least one (1) of the next of kin of the incom-5petent ward, if notice is possible. He must exercise care to conserve6any excess for the ward's needsthe guardian may institute proceed- 7 ings to appoint a conservator. In no circumstances shall the guardian 8 exercise any of the powers of a conservator. 9 (5) A guardian shall be required to report as provided in section 10 15-5-419, Idaho Code. 11 (6) If a conservator has been appointed, all of the ward's estate 12 received by the guardian in excess of those funds expended to meet current 13 expenses for support, care, and education of the ward must be paid to the 14 conservator for management as provided in this code, and the guardian must 15 account to the conservator for funds expended. 16 (b) Any guardian of one for whom a conservator also has been appointed 17 shall control the custody and care of the ward, and is entitled to receive 18 reasonable sums for his services and for room and board furnished to the ward 19 as agreed upon between him and the conservator, provided the amounts agreed 20 upon are reasonable under the circumstances. The guardian may request the con- 21 servator to expend the ward's estate by payment to third persons or institu- 22 tions for the ward's care and maintenance. 23 (c) A guardian may delegate certain of his responsibilities for decisions 24 affecting the ward's well-being to the ward when reasonable under all of the 25 circumstances.
STATEMENT OF PURPOSE RS 13739C1 The existing language of Idaho Code 15-5-420 and 15-5-421 can be read to state that the appointment of a conservator causes the legal title to real estate to transfer from the protected person to the conservator. This causes great problems legally, especially when the conservator encumbers the property through loans. Lending institutions in such cases may hold that the conservator, which is often a corporation, is the true title holder and therefore will refuse to make the loan. This theory of transfer of title is also not in compliance with the property tax reduction statutes (50-50 homeowners and circuit breaker reductions) of Idaho. Therefore, this bill amends the statute to make clear that only the control of the asset is transferred to the conservator. FISCAL NOTE This bill will have no fiscal impact. CONTACT: Name: Robert L. Aldridge Phone: (208) 336-9880 STATEMENT OF PURPOSE/FISCAL NOTE S 1245 REVISED REVISED REVISED REVISED