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H0082................................by JUDICIARY, RULES AND ADMINISTRATION GUARDIANSHIPS - Amends existing law relating to guardianships to provide that the authority of an emergency guardian shall not exceed ninety days unless extended for good cause upon application of the temporary guardian; and to remove language requiring a report from a medical doctor or a licensed psychologist. 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 - 70-0-0 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, Mr. Speaker NAYS -- None Absent and excused -- None Floor Sponsor - McGeachin 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 - Richardson 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 52 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. 82 BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE 1 AN ACT 2 RELATING TO GUARDIANSHIPS; AMENDING SECTION 15-5-310, IDAHO CODE, TO PROVIDE 3 THAT THE AUTHORITY OF AN EMERGENCY GUARDIAN SHALL NOT EXCEED NINETY DAYS 4 UNLESS EXTENDED FOR GOOD CAUSE UPON APPLICATION OF THE TEMPORARY GUARDIAN; 5 AND AMENDING SECTION 15-5-407A, IDAHO CODE, TO REMOVE LANGUAGE REQUIRING A 6 REPORT FROM A MEDICAL DOCTOR OR A LICENSED PSYCHOLOGIST. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Section 15-5-310, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 15-5-310. TEMPORARY GUARDIANS. (a) If the court finds that a guardian is 11 not properly performing the duties of guardian or an emergency exists such 12 that the likely result will be substantial harm to an alleged incapacitated 13 person's health, safety, or welfare, and that no other person appears to have 14 authority and willingness to act in the circumstances, the court, on petition 15 by a person interested in the alleged incapacitated person's welfare, may 16 appoint an emergency guardian whose authority may not exceed sixtyninety 17 ( 690) days, unless extended for good cause upon application of the temporary 18 guardian. The emergency guardianship must be limited to only those powers 19 absolutely necessary, or the least restrictive to the proposed ward, for the 20 immediate health and safety of the proposed ward until such time as a full 21 hearing may be held in the matter and the emergency guardian may exercise only 22 those powers specified in the order. Emergency letters of guardianship shall 23 allow the temporary guardian only such access to the proposed ward's assets as 24 is necessary to provide and pay for the proposed ward's necessities of life, 25 including short and long-term health care, but shall expressly deny a tempo- 26 rary guardian the right to have the temporary guardian's name added to any 27 assets of the proposed ward pending a hearing on the guardianship. 28 (b) The court shall appoint a guardian ad litem to represent the proposed 29 ward in all cases involving a petition for adjudication of incapacity. The 30 alleged incapacitated person may substitute his own attorney for the guardian 31 ad litem appointed by the court. Any attorney representing an alleged incapac- 32 itated person may not serve as guardian of the proposed ward or as counsel for 33 the petitioner for guardianship. 34 (c) An emergency guardian may be appointed without notice to the alleged 35 incapacitated person or his attorney only if the court finds from affidavit or 36 other sworn testimony that the proposed ward will be substantially harmed 37 before a hearing on the appointment can be held. If the court appoints an 38 emergency guardian without notice to the proposed ward, the proposed ward must 39 be given notice of the appointment within forty-eight (48) hours after the 40 appointment. The court shall hold a hearing on the appropriateness of the 41 appointment within five (5) days after the appointment if requested by an 42 interested party at which time the court shall appoint a visitor to meet with 43 the alleged incapacitated person and make a written report to the court. The 2 1 court shall also appoint a physician to examine the proposed ward giving pref- 2 erence to the appointment of the proposed ward's treating physician if the 3 proposed ward has a current treating physician. 4 SECTION 2. That Section 15-5-407A, Idaho Code, be, and the same is hereby 5 amended to read as follows: 6 15-5-407A. TEMPORARY AND EMERGENCY APPOINTMENTS. (a) The court may 7 appoint upon an ex parte petition, without hearing, a person to act as tempo- 8 rary conservator, pending the final hearing, upon a finding supported by 9 statement made under oath that an emergency situation exists. The emergency 10 appointment shall remain in effect no longer than ninety (90) days, unless 11 extended for good cause upon application of the temporary conservator. 12 (b) A report from a medical doctor or a licensed psychologist to the13 effect that the person to be protected is unable to take care of his own14 activities of daily living, together with aAny one (1) of the following ,shall 15 be considered an emergency situation: 16 (1) A finding that the person to be protected is unable to reasonably 17 manage said person's finances and as a result the person's assets will be 18 wasted or dissipated unless proper management is provided without delay; 19 or 20 (2) A finding that the person to be protected has been taken advantage of 21 and that the situation is likely to continue unless a temporary appoint- 22 ment is made without delay; or 23 (3) A finding that funds are needed for support, care and welfare of the 24 person to be protected and a temporary appointment is necessary to secure 25 such funding; or 26 (4) A finding that other conditions exist that in the court's determina- 27 tion necessitate the appointment of a temporary conservator. 28 (c) The duty of a temporary conservator shall be to preserve and protect 29 the assets of the estate and to provide the funding necessary for the support, 30 care and welfare of the person to be protected. The conservator shall have all 31 the powers enumerated in section 15-5-424, Idaho Code, to be exercised, how- 32 ever, only within said limited context. The court may expand the duties of the 33 temporary conservator upon application and a finding that a proposed action is 34 necessary prior to the hearing. 35 (d) A temporary conservator shall not remove any of the assets of the 36 estate from the jurisdiction of the court without a specific order to that 37 effect. 38 (e) The petition for appointment of a temporary conservator must be 39 accompanied by a petition for appointment of a conservator pursuant to section 40 15-5-404, Idaho Code. 41 (f) If the person to be protected is a minor, the court shall appoint a 42 guardian ad litem for said minor at the same time the temporary appointment of 43 a conservator is made. 44 (g) Upon application by an interested party and a hearing, the court may 45 limit the powers and duties of the temporary conservator. 46 (h) Notice of the appointment of a temporary conservator shall be given 47 to all interested persons by the petitioner within five (5) days after the 48 date of such appointment. 49 (i) The court shall hold a hearing on the appropriateness of the tempo- 50 rary appointment within five (5) days if requested by an interested party. In 51 such event, if a visitor and physician have not already been appointed, the 52 court shall appoint a visitor to meet with the alleged incapacitated person 53 and to make a written report to the court, and shall appoint a physician to 3 1 examine the proposed ward and submit a written report to the court, giving 2 preference to the appointment of the proposed ward's treating physician if the 3 proposed ward has a current treating physician.
STATEMENT OF PURPOSE RS 14768 This bill makes two changes in the methods of appointing a temporary guardian or temporary conservator. First, in the guardianship appointment, 15-5-310, the time period of appointment is changed to match the existing conservatorship time period of 90 days, with the ability to extend for good cause. Second, in the conservatorship appointment, 15-5-407A, the requirement of a medical report by a doctor or licensed psychologist is deleted. Health & Welfare Adult Protection, the Commission on Aging, and private practitioners have all found that in a great many cases the person needing protection refuses both to leave the home to meet with a doctor or psychologist or to allow a doctor or psychologist into the home. This creates a roadblock to obtaining protection in emergency situations. The petitioner still must show by a statement under oath that an emergency exists, and the Court must make an actual finding that an emergency exists, as defined in the existing statute. This bill will allow emergency appointments when needed while still giving protection to the person. The concept, but not the language of this bill has been approved by the Conservatorship/Guardianship Interim Committee. FISCAL IMPACT This bill will have no fiscal impact. Contact Name: Robert L. Aldridge Phone: Office: (208) 336-9880 Cell: (208) 631-2481 STATEMENT OF PURPOSE/FISCAL NOTE H 82