2004 Legislation
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SENATE BILL NO. 1245 – Conservators, temp/emergency, appt


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Bill Status

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

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                       IN THE SENATE
                                    SENATE BILL NO. 1245
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  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.
  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, he
 48        may:
 49             (A)  institute proceedings to compel any person under a duty to  sup-
 50             port  the  ward or to pay sums for the welfare of the ward to perform
 51             his duty;
 52             (B)  receive money and tangible property deliverable to the ward  and
 53             apply  the  money and property for support, care and education of the
  1             ward; but, he may not use funds from his ward's estate for  room  and
  2             board  which he, his spouse, parent, or child have furnished the ward
  3             unless a charge for the service is approved by  order  of  the  court
  4             made upon notice to at least one (1) of the next of kin of the incom-
  5             petent ward, if notice is possible. He must exercise care to conserve
  6             any  excess  for the ward's needs the 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 / Fiscal Impact

                       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.


Name:  Robert L. Aldridge
Phone: (208) 336-9880 

STATEMENT OF PURPOSE/FISCAL NOTE                      S 1245   

REVISED        REVISED           REVISED          REVISED