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S1322................................................by JUDICIARY AND RULES
CONSERVATORS - GUARDIANS - Amends existing law to authorize guardians or
conservators to dispose of a deceased person's remains in certain
circumstances; to provide for a continuance of a guardianship in certain
circumstances; and to provide for conservator distributive duties and
powers in certain circumstances.
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 - Burkett
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 - 65-0-5
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer, Bell,
Bilbao, Black, Block, Boe, Bolz, Brackett, Bradford, Cannon,
Chadderdon, Clark, Deal, Denney, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson,
Jaquet, 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(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Mr.
Speaker
NAYS -- None
Absent and excused -- Bedke, Collins, Crow, Smith(30), Wood
Floor Sponsor - LeFavour
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 181
Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE SENATE
SENATE BILL NO. 1322
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO GUARDIANS AND CONSERVATORS; AMENDING SECTION 54-1142, IDAHO CODE,
3 TO AUTHORIZE GUARDIANS OR CONSERVATORS TO DISPOSE OF A DECEASED PERSON'S
4 REMAINS IN CERTAIN CIRCUMSTANCES; AMENDING SECTION 15-5-306, IDAHO CODE,
5 TO PROVIDE FOR THE CONTINUANCE OF A GUARDIANSHIP IN CERTAIN CIRCUMSTANCES
6 AND TO MAKE A TECHNICAL CORRECTION; AND AMENDING SECTION 15-5-425, IDAHO
7 CODE, TO PROVIDE FOR CONSERVATOR DISTRIBUTIVE DUTIES AND POWERS IN CERTAIN
8 CIRCUMSTANCES AND TO MAKE TECHNICAL CORRECTIONS.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 54-1142, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 54-1142. AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the
13 decedent has not made a prearranged funeral plan as set forth in section
14 54-1139, Idaho Code, the right to control the disposition of the remains of a
15 deceased person vests in, and devolves upon the following in the order named:
16 (a) The person designated in a written document executed by the decedent
17 and acknowledged in the same manner as required for instruments conveying
18 real property, and subject to such limitations, restrictions, or direc-
19 tions, as may be set forth in such document;
20 (b) The person designated as agent under a durable power of attorney for
21 health care executed by the decedent, unless such durable power of attor-
22 ney for health care contains express and clear language denying such
23 right;
24 (c) The person designated in a durable power of attorney executed by the
25 decedent, if such power of attorney contains express and clear language
26 granting such right to the agent named in such power of attorney;
27 (d) The competent surviving spouse of the decedent;
28 (e) A majority of the competent surviving adult children of the decedent,
29 provided that less than one-half (1/2) of the competent surviving adult
30 children shall be vested with the right to control the disposition of the
31 remains of the decedent if they have used reasonable efforts to notify all
32 other competent surviving adult children of their instructions to dispose
33 of the decedent's remains and are not aware of any opposition to those
34 instructions on the part of more than one-half (1/2) of all competent sur-
35 viving adult children;
36 (f) The competent surviving parents or parent of the decedent, provided
37 that if one (1) of the competent surviving parents is absent, the remain-
38 ing competent surviving parent shall be vested with the right to control
39 the disposition of the remains of the decedent after reasonable efforts
40 have been made and are unsuccessful in locating the absent competent sur-
41 viving parent;
42 (g) The person appointed by a court of competent jurisdiction as the per-
43 sonal representative or administrator of the estate of the decedent;
2
1 (h) The person nominated as the personal representative of the estate of
2 the decedent in the will of the decedent;
3 (i) The competent adult person or persons entitled to inherit from the
4 decedent under the intestate succession laws of the state of Idaho,
5 respectively in the next degree of kinship, provided that if there is more
6 than one (1) competent surviving adult person of the same degree of kin-
7 ship, the majority of those persons, and provided further that less than
8 the majority of competent surviving adult persons of the same degree of
9 kinship shall be vested with the right to control the disposition of the
10 remains of the decedent if those persons have used reasonable efforts to
11 notify all other competent surviving adult persons of the same degree of
12 kinship of their instructions to dispose of the decedent's remains and are
13 not aware of any opposition to those instructions on the part of one-half
14 (1/2) or more of all competent surviving adult persons of the same degree
15 of kinship;
16 (j) If the persons listed above fail to exercise their right to dispose
17 of the remains of the deceased person within forty (40) days of the death
18 of the deceased person, the person acting as guardian of the ward at the
19 time of the ward's death, or if no guardian was then acting, the person
20 acting as conservator of the protected person at the time of the protected
21 person's death, has the authority to dispose of the deceased person's
22 remains, including cremation of the remains.
23 (2) If any person to whom the right of control has vested pursuant to the
24 foregoing has been charged with first or second degree murder or voluntary
25 manslaughter in connection with the decedent's death, and those charges are
26 known to the funeral director or cemetery authority, the right of control is
27 relinquished and passed on to the next qualifying person as listed above as if
28 the charged person did not exist; provided however, that if the charges
29 against such person are dropped, or if such person is acquitted of the
30 charges, the right of control is returned to the person.
31 (3) For purposes of this section:
32 (a) "Adult" means an individual who is eighteen (18) years of age or
33 older;
34 (b) "Child" means a natural or adopted child of the decedent;
35 (c) "Competent" means the individual has not been declared incompetent by
36 a court of law, or who has been declared competent by a court of law after
37 a prior declaration of incompetence;
38 (d) "Durable power of attorney" means a power of attorney described in
39 section 15-5-501, Idaho Code, or any similar document properly executed
40 under the laws of another jurisdiction; and
41 (e) "Durable power of attorney for health care" means the document
42 described in chapter 45, title 39, Idaho Code, or any similar document
43 properly executed under the laws of another jurisdiction;
44 (f) "Will" means any testamentary device which is valid under the Idaho
45 probate code, including, but not limited to, sections 15-2-503, 15-2-504
46 and 15-2-506, Idaho Code, whether or not originally executed in, or under
47 the laws of, the state of Idaho.
48 (4) (a) A cemetery authority or licensed funeral director or a licensed
49 hospital or its authorized personnel may permit or assist in, and a physi-
50 cian may perform, an autopsy of any remains of a decedent in its custody:
51 (i) If the decedent, prior to his death, authorizes an autopsy in
52 his will or in another written instrument, including, but not limited
53 to, a durable power of attorney for health care; or
54 (ii) Upon the receipt of a written authorization signed by,
55 telegrammed from, or received by facsimile transmission from, a per-
3
1 son representing himself to be the person who is entitled under this
2 section to control the disposition of the remains of the decedent, or
3 to be a coroner or any other duly authorized public officer; or
4 (iii) Upon the receipt of an oral authorization obtained by tele-
5 phone, and recorded on tape or other recording device, from a person
6 representing himself to be the person who is entitled under this sec-
7 tion to control the disposition of the remains of the decedent, or to
8 be a coroner or any other duly authorized public officer.
9 (b) A cemetery authority or a licensed funeral director of a licensed
10 hospital or its authorized personnel is not liable for permitting or
11 assisting, and a physician is not liable for performing, an autopsy pursu-
12 ant to the authorization provided in paragraph (a) of this subsection
13 unless he has actual notice that such representation is untrue at the time
14 the autopsy is performed. If such authorization is contained in a will,
15 the autopsy may be performed regardless of the validity of the will in
16 other respects and regardless of whether the will may not be offered for,
17 or admitted to, probate until a later date.
18 (c) This subsection shall not authorize the obtaining of an oral authori-
19 zation by telephone, recorded on tape or other recording device, for the
20 autopsy of a deceased person if it is made known to the physician who is
21 to perform the autopsy that the deceased person was, at the time of his
22 death, a member of a religion or group which opposes autopsies.
23 SECTION 2. That Section 15-5-306, Idaho Code, be, and the same is hereby
24 amended to read as follows:
25 15-5-306. TERMINATION OF GUARDIANSHIP FOR INCAPACITATED PERSON. (1) Sub-
26 ject to subsection (2) of this section, tThe authority and responsibility of a
27 guardian for an incapacitated person terminates upon the death of the guardian
28 or ward, the determination of incapacity of the guardian, or upon removal or
29 resignation as provided in section 15-5-307 of this Ppart. Testamentary
30 appointment under an informally probated will terminates if the will is later
31 denied probate in a formal proceeding. Termination does not affect his liabil-
32 ity for prior acts nor his obligation to account for funds and assets of his
33 ward.
34 (2) If the conditions set forth in section 54-1142(1)(j) exist, then the
35 guardianship shall continue as set forth in that section.
36 SECTION 3. That Section 15-5-425, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 15-5-425. DISTRIBUTIVE DUTIES AND POWERS OF CONSERVATOR. (a) A conserva-
39 tor may expend or distribute income or principal of the estate without court
40 authorization or confirmation for the support, education, care or benefit of
41 the protected person and his dependents in accordance with the following prin-
42 ciples:
43 (1) The conservator is to consider recommendations relating to the appro-
44 priate standard of support, education and benefit for the protected person
45 made by a parent or guardian, if any. He may not be surcharged for sums
46 paid to persons or organizations actually furnishing support, education or
47 care to the protected person pursuant to the recommendations of a parent
48 or guardian of the protected person, unless he knows that the parent or
49 guardian is deriving personal financial benefit therefrom, including
50 relief from any personal duty of support, or unless the recommendations
51 are clearly not in the best interests of the protected person.
4
1 (2) The conservator is to expend or distribute sums reasonably necessary
2 for the support, education, care or benefit of the protected person with
3 due regard to (A) the size of the estate, the probable duration of the
4 conservatorship and the likelihood that the protected person, at some
5 future time, may be fully able to manage his affairs and the estate which
6 has been conserved for him; (B) the accustomed standard of living of the
7 protected person and members of his household; (C) other funds or sources
8 used for the support of the protected person.
9 (3) The conservator may expend funds of the estate for the support of
10 persons legally dependent on the protected person and others who are mem-
11 bers of the protected person's household who are unable to support them-
12 selves, and who are in need of support.
13 (4) Funds expended under this subsection may be paid by the conservator
14 to any person, including the protected person to reimburse for expendi-
15 tures which the conservator might have made, or in advance for services to
16 be rendered to the protected person when it is reasonable to expect that
17 they will be performed and where advance payments are customary or reason-
18 ably necessary under the circumstances.
19 (5) A conservator, in discharging the responsibilities conferred by court
20 order and this part, shall implement the principles described in section
21 15-5-408(a) of this code.
22 (b) If the estate is ample to provide for the purposes implicit in the
23 distributions authorized by the preceding subsections, a conservator for a
24 protected person other than a minor has power to make gifts to charity and
25 other objects as the protected person might have been expected to make, in
26 amounts which do not exceed in total for any year twenty per cent percent
27 (20%) of the income from the estate.
28 (c) When a minor who has not been adjudged disabled under subsection (b)
29 of section 15-5-401 of this part attains his majority, his conservator, after
30 meeting all prior claims and expenses of administration, shall pay over and
31 distribute all funds and properties to the former protected person as soon as
32 possible.
33 (d) When the conservator is satisfied that a protected person's disabil-
34 ity (other than minority) has ceased, the conservator, after meeting all prior
35 claims and expenses of administration, shall pay over and distribute all funds
36 and properties to the former protected person as soon as possible.
37 (e) If a protected person dies, the conservator shall deliver to the
38 court for safekeeping any will of the deceased protected person which may have
39 come into his possession, inform the executor or a beneficiary named therein
40 that he has done so, and retain the estate for delivery to a duly appointed
41 personal representative of the decedent or other persons entitled thereto. If
42 after forty (40) days from the death of the protected person no other person
43 has been appointed personal representative and no application or petition for
44 appointment is before the court, the conservator may apply to exercise the
45 powers and duties of a personal representative so that he may proceed to
46 administer and distribute the decedent's estate without additional or further
47 appointment. Upon application for an order granting the powers of a personal
48 representative to a conservator, after notice to any person demanding notice
49 under section 15-3-204 of this code and to any person nominated executor in
50 any will of which the applicant is aware, the court may order the conferral of
51 the power upon determining that there is no objection, and indorse the letters
52 of the conservator to note that the formerly protected person is deceased and
53 that the conservator has acquired all of the powers and duties of a personal
54 representative. The making and entry of an order under this section shall have
55 the effect of an order of appointment of a personal representative as provided
5
1 in section 15-3-308 and parts 6 through 10 of chapter 3 except that the estate
2 in the name of the conservator, after administration, may be distributed to
3 the decedent's successors without prior re-transfer to the conservator as per-
4 sonal representative.
5 (f) During the period between the death of a protected person and the
6 appointment of a personal representative for the protected person's estate, or
7 the conferral of the powers of a personal representative upon the conservator
8 as provided in this section, the person acting as conservator at the time of
9 the deceased protected person's death shall have the duties and powers of a
10 temporary conservator as set forth in section 15-5-407A, Idaho Code, and the
11 powers set forth in section 54-1142(1)(j), Idaho Code.
STATEMENT OF PURPOSE
RS: 15745
In prior years, the priority list for funeral-burial decisions has
been amended and expanded. However, there are still certain
circumstances under which no person or entity acts to make such
decisions. In Section One, this bill allows the guardian acting at
the death of the decedent, or if none, the conservator acting at
the death of the decedent, to make funeral-burial decisions and
arrangements. Sections Two and Three extend the guardianship or
conservatorship past the date of death of the decedent under those
circumstances so that the guardian or conservator has legal
authority to act.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT:
Name: Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Telephone: office: (208) 336-9880 Cell: (208) 631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1322