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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 - 2004
IN 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, 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
3
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
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