2004 Legislation
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SENATE BILL NO. 1247 – Conservators, powers/duties

SENATE BILL NO. 1247

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Bill Status



S1247................................................by JUDICIARY AND RULES
CONSERVATORS - Amends existing law relating to powers and duties of
conservators to clarify control by a conservator of title to the property
of the protected person; to provide that letters of conservatorship are
evidence of control of assets; and to provide that an order terminating
control is evidence of the termination.
                                                                        
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
02/23    3rd rdg - PASSED - 30-0-5
      AYES -- Andreason, Bailey, Bunderson, Burtenshaw, Calabretta,
      Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Ingram,
      Kennedy, Keough, Little, Lodge, Malepeai, Marley, McKenzie,
      McWilliams, Noh, Pearce, Schroeder, Sorensen, Stegner, Stennett,
      Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Brandt, Burkett, Hill, Noble, Richardson
    Floor Sponsor - Darrington
    Title apvd - to House
02/24    House intro - 1st rdg - to Jud

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1247
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO POWERS AND DUTIES  OF  CONSERVATORS;  AMENDING  SECTION  15-5-420,
  3        IDAHO  CODE,  TO CLARIFY CONTROL BY A CONSERVATOR OF TITLE TO THE PROPERTY
  4        OF THE PROTECTED PERSON; AND AMENDING  SECTION 15-5-421,  IDAHO  CODE,  TO
  5        PROVIDE  THAT LETTERS OF CONSERVATORSHIP ARE EVIDENCE OF CONTROL OF ASSETS
  6        AND TO PROVIDE THAT AN ORDER TERMINATING CONTROL IS EVIDENCE OF THE TERMI-
  7        NATION.
                                                                        
  8    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  9        SECTION 1.  That Section 15-5-420, Idaho Code, be, and the same is  hereby
 10    amended to read as follows:
                                                                        
 11        15-5-420.  CONSERVATORS  -- TITLE BY APPOINTMENT. (a) The appointment of a
 12    conservator vests in him the conservator control of title as  trustee  to  all
 13    property  of  the  protected  person,  presently  held or thereafter acquired,
 14    including control of title to any property theretofore held for the  protected
 15    person by custodians or attorneys in fact, or to the part thereof specified in
 16    the order. An order specifying that only a part of the control of the title to
 17    property  of  the  protected person vests in the conservator creates a limited
 18    conservatorship.
 19        (b)  The appointment of a conservator is  not  a  transfer  or  alienation
 20    within  the  meaning  of general provisions of any federal or state statute or
 21    regulation, insurance policy, pension plan, contract, will  or  trust  instru-
 22    ment,  imposing  restrictions  upon or penalties for transfer or alienation by
 23    the protected person of his rights or interest,  but  this  section  does  not
 24    restrict  the  ability  of  persons  to make specific provision by contract or
 25    dispositive instrument relating to a conservator.
                                                                        
 26        SECTION 2.  That Section 15-5-421, Idaho Code, be, and the same is  hereby
 27    amended to read as follows:
                                                                        
 28        15-5-421.  RECORDING  OF CONSERVATOR'S LETTERS. Letters of conservatorship
 29    are evidence of transfer control of all assets, or the part thereof  specified
 30    in  the  letters, of a protected person to by the conservator. An order termi-
 31    nating a conservatorship is evidence of transfer termination of  such  control
 32    by  the  conservator of all assets of the estate subjected to the conservator-
 33    ship. from the conservator to the protected person, or his successors. Letters
 34    of conservatorship and orders terminating conservatorship may be  recorded  in
 35    the  office of the county recorder in any county in which property affected by
 36    such letters or orders is located and, from the time of filing  the  same  for
 37    record,  notice  is imparted to all persons of the contents of such letters or
 38    orders.

Statement of Purpose / Fiscal Impact


                       STATEMENT OF PURPOSE
                             RS 13741

This bill completes an ongoing series of changes to the Uniform Probate
Code on the appointment of temporary or emergency conservators or
guardians.  These changes have attempted to balance the need for quick
ex parte orders the Court, issued without hearings and without reports
from court visitors or guardians ad litem, with the need to protect the
rights of an incapacitated person.  This bill adds a new section 15-5-
407A to cover temporary and emergency appointments of conservators, and
amends section 15-5-312 to clarify the role of a guardian when the
incapacitated person has assets to be managed.

(1)  Temporary and Emergency Conservator Appointments
(a)  The court can appoint a temporary conservator ex parte, without
hearing, only upon a finding, which must be supported by statements made
under oath, that an emergency situation exists.  The emergency
appointment cannot last longer than 90 days, unless extended for good
cause.

(b)  An "emergency situation" is defined to exist when the court has been
given a report by a medical doctor or a licensed psychologist stating
that the person to be protected is unable to take care of the activities
of daily living of the person and the court also finds one of the four
factors set forth in 15-5-407A(b), parts 1-4.

(c)  15-5-407A(c) through (i) limit the duties of a temporary conservator
to preservation and protection of the assets, and to providing funding
for the support, care, and welfare of the person.  The court can expand
or further limit those duties. The temporary conservator is not to remove
any of the assets from the jurisdiction of the court without a specific
order.  The petition for a temporary conservator must be accompanied by
the filing of a petition for appointment of a conservator.  If the
protected person is a minor, a guardian ad litem must be appointed. 
Notice of a temporary appointment must be given to all interested persons
(defined broadly in the probate code) within five days after the
appointment.  Finally, the court must hold a hearing on the
appropriateness of the appointment within five days after request by any
interested person, and must appoint a court visitor and physician.

(2)  Guardians
The bill does two things.  First, it adds HIPAA language to ensure that
an appointed guardian can access the medical information of the ward. 
Second, it clarifies that a guardian is not to exercise any
conservatorship powers.

                          FISCAL NOTE
This bill will have no fiscal impact.

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


statement of purpose/fiscal note                           S 1247   

REVISED      REVISED         REVISED          REVISED          REVISE