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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 sixty ninety
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 the
13 effect that the person to be protected is unable to take care of his own
14 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