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S1328................................................by JUDICIARY AND RULES
GUARDIANSHIP - Amends existing law to revise provisions applicable to the
testamentary appointment of a guardian for a minor.
01/30 Senate intro - 1st rdg - to printing
01/31 Rpt prt - to Jud
02/09 Rpt out - rec d/p - to 2nd rdg
02/10 2nd rdg - to 3rd rdg
02/17 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Gannon, Geddes, Goedde, Hill, Kelly, Keough, Langhorst, Little,
Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson,
Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- Fulcher, Jorgenson
Floor Sponsor - Lodge
Title apvd - to House
02/20 House intro - 1st rdg - to Jud
03/06 Rpt out - rec d/p - to 2nd rdg
03/07 2nd rdg - to 3rd rdg
03/16 3rd rdg - PASSED - 63-0-7
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bell,
Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford, Cannon,
Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Hart, Harwood, Henbest, Henderson,
Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews,
McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini, Pence,
Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sayler, Schaefer,
Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(24), Smylie,
Snodgrass, Stevenson, Trail, Wills, Mr. Speaker
NAYS -- None
Absent and excused -- Bedke, Crow, Garrett, Pasley-Stuart, Sali,
Smith(30), Wood
Floor Sponsor - Shirley
Title apvd - to Senate
03/17 To enrol
03/20 Rpt enrol - Pres signed - Sp signed
03/21 To Governor
03/24 Governor signed
Session Law Chapter 183
Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE SENATE
SENATE BILL NO. 1328
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO GUARDIANSHIPS; AMENDING SECTION 15-5-202, IDAHO CODE, TO REVISE
3 PROVISIONS APPLICABLE TO THE TESTAMENTARY APPOINTMENT OF A GUARDIAN FOR A
4 MINOR.
5 Be It Enacted by the Legislature of the State of Idaho:
6 SECTION 1. That Section 15-5-202, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 15-5-202. TESTAMENTARY APPOINTMENT OF GUARDIAN OF MINOR. The A parent of
9 a minor may appoint by will a guardian of an unmarried minor. Subject by will,
10 subject to the right of the minor under section 15-5-203, Idaho Code., a The
11 termination of parental rights of a parent as to the minor shall also termi-
12 nate the right of that parent to appoint a guardian for the minor. A testamen-
13 tary appointment becomes effective upon the filing of the guardian's accep-
14 tance in the court in which the will is probated, if, before acceptance, both
15 parents are dead. If both parents are dead, an effective appointment by the at
16 the decedent's death, no parent who died later has priority of the minor was
17 alive who had a right to appoint a guardian for the minor. This state recog-
18 nizes a testamentary appointment effected by filing the guardian's acceptance
19 under a will probated in another state which is the testator's domicile. Writ-
20 ten notice of acceptance of the appointment must be given by the guardian to
21 the minor and to the person having his care or to his nearest adult relation
22 immediately upon acceptance of appointment.
STATEMENT OF PURPOSE
RS 15820
Existing section 15-5-202 allows a parent of an unmarried minor
to appoint a guardian for the minor, through the will of the
parent. The will must be probated. Acceptance of the appointment
is made by the guardian filing a notice of acceptance in the
court in which the will is being probated. There is no hearing
of any kind and no guardian ad litem or attorney is appointed to
represent the child. Both parents of the minor must be dead at
the time of acceptance, and "[i]f both parents are dead, an
effective appointment by the parent who died later has priority."
A minor who is age 14 or more may object to the appointment under
section 15-5-203. The testamentary acceptance of appointment
does not preclude a later formal guardianship petition before a
court.
The language of the existing section leaves several situations
unclear. First, what if the parental rights of one parent have
been terminated as to the minor? That parent is still alive, and
the language of the existing section would appear to bar an
appointment by the other parent. Second, if both parents are
dead, what does the phrase "effective appointment by the parent
who died later has priority" mean? The existing language does
not describe, directly or indirectly, what an ineffective
appointment might be. Third, what if a parent who made an
appointment by will dies first, and later the second parent dies
without making an appointment by will? Can a probate for the
first parent be used to make an appointment, under the argument
that the use of the word "priority" means that the failure to
make an appointment leaves a second choice, the appointment by
the predeceased parent? Probates can be commenced up to three
years after death, so all sorts of combinations of dates of
deaths and dates of probate filings could occur, with no clear
answer in the statute.
The rewritten language clarifies all these situations, and makes
some additional minor wording changes. First, the new language
makes it clear that the termination of parental rights also
terminates the right to make an appointment by will for the
minor. Second, an appointment is only effective if, at the time
of death of the appointing parent, no other parent was alive who
had the right to make an appointment by will. This clarifies the
situation where a parent is still alive but has had his or her
parental rights terminated. It also clarifies the situation
where the first to die parent makes an appointment by will, but
the second to die parent does not. In that case, the appointment
in the first will is not effective, since at the death of the
first to die parent, there was a parent alive who had the right
to make an appointment. In that case, standard minor
guardianship procedures would be used. This removes all
questions raised about the order in which the probates of the two
parents are commenced.
The effect of the amendment is to make the section clear and to
remove any potential ambiguities or conflicts in the language of
the section.
FISCAL NOTE
This bill will have no fiscal impact.
Contact
Name: Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Phone: 208-336-9880
Cell: 208-631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1328