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H0079................................by JUDICIARY, RULES AND ADMINISTRATION
GUARDIAN AD LITEM - Adds to existing law relating to guardianships and
conservatorships to set forth the duties, rights and powers of a guardian
ad litem.
02/01 House intro - 1st rdg - to printing
02/02 Rpt prt - to Jud
02/16 Rpt out - rec d/p - to 2nd rdg
02/17 2nd rdg - to 3rd rdg
02/18 3rd rdg - PASSED - 69-0-1
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon,
Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest,
Henderson, Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher, Martinez,
Mathews, McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen,
Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche,
Rydalch, Sali, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley,
Skippen, Smith(30), Smith(24), Smylie(Telleria), Snodgrass,
Stevenson, Trail, Wills, Wood
NAYS -- None
Absent and excused -- Mr. Speaker
Floor Sponsor - Smith(24)
Title apvd - to Senate
02/21 Senate intro - 1st rdg - to Jud
03/03 Rpt out - rec d/p - to 2nd rdg
03/04 2nd rdg - to 3rd rdg
03/07 3rd rdg - PASSED - 34-0-1
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst,
Little, Lodge, Malepeai, Marley, McGee, McKenzie, Noble, Pearce,
Richardson, Schroeder, Stegner, Stennett, Sweet, Werk
NAYS -- None
Absent and excused -- Williams
Floor Sponsor - Lodge
Title apvd - to House
03/08 To enrol
03/09 Rpt enrol - Sp signed
03/10 Pres signed
03/11 To Governor
03/15 Governor signed
Session Law Chapter 49
Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 79
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO GUARDIANS AD LITEM; AMENDING PART 3, CHAPTER 5, TITLE 15, IDAHO
3 CODE, BY THE ADDITION OF A NEW SECTION 15-5-315, IDAHO CODE, TO SET FORTH
4 THE DUTIES OF A GUARDIAN AD LITEM IN A GUARDIANSHIP CASE; AMENDING PART 3,
5 CHAPTER 5, TITLE 15, IDAHO CODE, BY THE ADDITION OF A NEW SECTION
6 15-5-316, IDAHO CODE, TO SET FORTH THE RIGHTS AND POWERS OF A GUARDIAN AD
7 LITEM IN A GUARDIANSHIP CASE; AMENDING PART 4, CHAPTER 5, TITLE 15, IDAHO
8 CODE, BY THE ADDITION OF A NEW SECTION 15-5-434, IDAHO CODE, TO SET FORTH
9 THE DUTIES OF A GUARDIAN AD LITEM IN A CONSERVATORSHIP CASE; AND AMENDING
10 PART 4, CHAPTER 5, TITLE 15, IDAHO CODE, BY THE ADDITION OF A NEW SECTION
11 15-5-435, IDAHO CODE, TO SET FORTH THE RIGHTS AND POWERS OF A GUARDIAN AD
12 LITEM IN A CONSERVATORSHIP CASE.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Part 3, Chapter 5, Title 15, Idaho Code, be, and the same
15 is hereby amended by the addition thereto of a NEW SECTION, to be known and
16 designated as Section 15-5-315, Idaho Code, and to read as follows:
17 15-5-315. GUARDIAN AD LITEM -- DUTIES. Subject to the direction of the
18 court, the guardian ad litem shall have the following duties, which shall con-
19 tinue until the resignation of the guardian ad litem or until the court
20 removes the guardian ad litem or no longer has jurisdiction, whichever occurs
21 first:
22 (1) To conduct an independent factual investigation of the circumstances
23 of the ward including, without limitation, the circumstances described in the
24 petition;
25 (2) To file with the court a written report stating the results of the
26 investigation, the guardian ad litem's recommendations, and such other infor-
27 mation as the court may require. The guardian ad litem's written report shall
28 be delivered to the court, with copies to all parties to the case, at least
29 five (5) days before the date set for the adjudicatory hearing;
30 (3) To act as an advocate for the ward for whom appointed at each stage
31 of the proceedings under this chapter and to be charged with the general rep-
32 resentation of the ward. To that end, the guardian ad litem shall participate
33 fully in the proceedings to the degree necessary to adequately represent the
34 ward, and shall be entitled to confer with the ward and the ward's immediate
35 family including, but not limited to, spouse, parents, siblings, children and
36 next of kin;
37 (4) To facilitate and negotiate to ensure that the court, the department
38 of health and welfare, if applicable, and the ward's attorney, if any, each
39 fulfill their obligations to the ward in a timely fashion;
40 (5) To monitor the circumstances of a ward, if the ward is found to be
41 within the purview of this chapter, to assure compliance with the law, and to
42 assure that the terms of the court's orders are being fulfilled and remain in
43 the best interest of the ward;
2
1 (6) To meet any parent or other person having legal or physical custody
2 of the ward, record the concerns of the parent, and report them to the court
3 or, if no such meeting occurs, file an affidavit stating why no meeting
4 occurred;
5 (7) To maintain all information regarding the case confidential and to
6 not disclose such information except to the court or to other parties to the
7 case;
8 (8) To determine whether existing powers, trusts, and other measures may
9 adequately give the ward the legal protection otherwise provided by a guard-
10 ian, or whether such powers, trusts or other measures could be reasonably cre-
11 ated and, if so, to recommend that either no guardianship be granted or that
12 only a suitably limited guardianship be granted; and
13 (9) To exercise such other and further duties as may be expressly imposed
14 by court order.
15 SECTION 2. That Part 3, Chapter 5, Title 15, Idaho Code, be, and the same
16 is hereby amended by the addition thereto of a NEW SECTION, to be known and
17 designated as Section 15-5-316, Idaho Code, and to read as follows:
18 15-5-316. GUARDIAN AD LITEM -- RIGHTS AND POWERS. (1) The guardian ad
19 litem has the rights and powers set forth in this section, which shall con-
20 tinue until the resignation of the guardian ad litem or until the court
21 removes the guardian ad litem or no longer has jurisdiction, whichever occurs
22 first.
23 (2) The guardian ad litem shall have the right and power to file plead-
24 ings, motions, memoranda and briefs on behalf of the ward, and to have all of
25 the rights of the ward, whether conferred by statute, rule of court, or other-
26 wise.
27 (3) All parties to any proceeding under this chapter shall promptly
28 notify the guardian ad litem, and the guardian's attorney, if any, of all
29 hearings, staff hearings or meetings, investigations, depositions, and signif-
30 icant changes of circumstances of the ward.
31 (4) Except to the extent prohibited or regulated by federal law, upon
32 presentation of a copy of the order appointing the guardian ad litem, any per-
33 son or agency including, without limitation, any hospital, school organiza-
34 tion, department of health and welfare, doctor, nurse or other health care
35 provider, psychologist, psychiatrist, police department, or mental health
36 clinic, shall permit the guardian ad litem to inspect and copy pertinent
37 records relating to the ward necessary for the proceeding for which the guard-
38 ian ad litem has been appointed.
39 SECTION 3. That Part 4, Chapter 5, Title 15, Idaho Code, be, and the same
40 is hereby amended by the addition thereto of a NEW SECTION, to be known and
41 designated as Section 15-5-434, Idaho Code, and to read as follows:
42 15-5-434. GUARDIAN AD LITEM -- DUTIES. Subject to the direction of the
43 court, the guardian ad litem shall have the following duties, which shall con-
44 tinue until the resignation of the guardian ad litem or until the court
45 removes the guardian ad litem or no longer has jurisdiction, whichever occurs
46 first:
47 (1) To conduct an independent factual investigation of the circumstances
48 of the protected person including, without limitation, the circumstances
49 described in the petition;
50 (2) To file with the court a written report stating the results of the
51 investigation, the guardian ad litem's recommendations, and such other infor-
3
1 mation as the court may require. The guardian ad litem's written report shall
2 be delivered to the court, with copies to all parties to the case, at least
3 five (5) days before the date set for the adjudicatory hearing;
4 (3) To act as an advocate for the protected person for whom appointed at
5 each stage of the proceedings under this chapter and to be charged with the
6 general representation of the protected person. To that end, the guardian ad
7 litem shall participate fully in the proceedings to the degree necessary to
8 adequately represent the protected person, and shall be entitled to confer
9 with the protected person and the protected person's immediate family includ-
10 ing, but not limited to, spouse, parents, siblings, children and next of kin;
11 (4) To facilitate and negotiate to ensure that the court, the department
12 of health and welfare, if applicable, and the protected person's attorney, if
13 any, each fulfill their obligations to the protected person in a timely fash-
14 ion;
15 (5) To monitor the circumstances of a protected person, if the protected
16 person is found to be within the purview of this chapter, to assure compliance
17 with the law, and to assure that the terms of the court's orders are being
18 fulfilled and remain in the best interest of the protected person;
19 (6) To meet any parent or other person having legal or physical custody
20 of the protected person, record the concerns of the parent, and report them to
21 the court or, if no such meeting occurs, file an affidavit stating why no
22 meeting occurred;
23 (7) To maintain all information regarding the case confidential and to
24 not disclose such information except to the court or to other parties to the
25 case;
26 (8) To determine whether existing powers, trusts, and other measures may
27 adequately give the protected person the legal protection otherwise provided
28 by a conservator, or whether such powers, trusts or other measures could be
29 reasonably created and, if so, to recommend that either no conservatorship be
30 granted or that only a suitably limited conservatorship be granted; and
31 (9) To exercise such other and further duties as may be expressly imposed
32 by court order.
33 SECTION 4. That Part 4, Chapter 5, Title 15, Idaho Code, be, and the same
34 is hereby amended by the addition thereto of a NEW SECTION, to be known and
35 designated as Section 15-5-435, Idaho Code, and to read as follows:
36 15-5-435. GUARDIAN AD LITEM -- RIGHTS AND POWERS. (1) The guardian ad
37 litem has the rights and powers set forth in this section, which shall con-
38 tinue until the resignation of the guardian ad litem or until the court
39 removes the guardian ad litem or no longer has jurisdiction, whichever occurs
40 first.
41 (2) The guardian ad litem shall have the right and power to file plead-
42 ings, motions, memoranda and briefs on behalf of the protected person, and to
43 have all of the rights of the protected person, whether conferred by statute,
44 rule of court, or otherwise.
45 (3) All parties to any proceeding under this chapter shall promptly
46 notify the guardian ad litem, and the conservator's attorney, if any, of all
47 hearings, staff hearings or meetings, investigations, depositions, and signif-
48 icant changes of circumstances of the protected person.
49 (4) Except to the extent prohibited or regulated by federal law, upon
50 presentation of a copy of the order appointing the guardian ad litem, any per-
51 son or agency including, without limitation, any hospital, school organiza-
52 tion, department of health and welfare, doctor, nurse or other health care
53 provider, psychologist, psychiatrist, police department, or mental health
4
1 clinic, shall permit the guardian ad litem to inspect and copy pertinent
2 records relating to the protected person necessary for the proceeding for
3 which the guardian ad litem has been appointed.
STATEMENT OF PURPOSE
RS 14717
Normally, when a guardianship or conservatorship proceeding has
been commenced, a guardian ad litem is appointed for the person
who is alleged to be incapacitated. However, the duties and the
powers of the guardian ad litem are not spelled out in any detail
in the existing Idaho Probate Code. This bill adds a specific
listing of such duties and powers to the conservatorship portion
of the Idaho Probate Code (15-5-434 and 435, Idaho Code) and to
the guardianship portion of the Idaho Probate Code (15-5-314
and 315). The only differences in wording between the
conservatorship and guardianship portions of the bill is that in
conservatorship proceedings, the involved person is referred to
as a "protected person", while in guardianship proceedings, the
term is "ward". This bill was approved for concept, but not
language, by the Guardianship/Conservatorship Interim Committee.
15-5-434: This section spells out the duties of the guardian ad
litem in a conservatorship proceeding, which are those duties
routinely exercised, or which should be routinely exercised, by a
guardian ad litem to adequately perform the duties of such
office.
15-5-435: This section spells out the rights and powers of a
guardian ad litem in a conservatorship proceeding, which are the
rights and powers necessary to adequately perform the duties of
such office.
15-5-314: This section is identical to 15-5-434, except that it
applies to guardianships.
15-5-315: This section is identical to 15-5-435, except that it
applies to guardianships.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT:
Name: Robert L. Aldridge
Telephone: Office: (208) 336-9882 cell: (208)631-2481
STATEMENT OF PURPOSE/FISCAL NOTE H 79