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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 - 2004IN 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