2007 Legislation
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SENATE BILL NO. 1060 – Guardianship proceedings, notices


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Bill Status

S1060................................................by JUDICIARY AND RULES
GUARDIANSHIP - Amends existing law relating to the Idaho Probate Code to
revise a definition; to revise provisions relating to notices in
guardianship proceedings; to revise other notice provisions; and to remove
language providing that certain entities are interested persons in
protective proceedings.
01/29    Senate intro - 1st rdg - to printing
01/30    Rpt prt - to Jud
02/06    Rpt out - rec d/p - to 2nd rdg
02/07    2nd rdg - to 3rd rdg
02/08    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
      Cameron, Corder, Darrington, Fulcher, Gannon, Geddes, Goedde,
      Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
      Lodge, Malepeai, McGee, McKague, McKenzie, Pearce, Richardson,
      Schroeder, Siddoway, Stegner, Stennett, Werk
      NAYS -- None
      Absent and excused -- Coiner, Davis
    Floor Sponsor - Richardson
    Title apvd - to House
02/09    House intro - 1st rdg - to Jud
02/28    Rpt out - rec d/p - to 2nd rdg
03/01    2nd rdg - to 3rd rdg
03/06    3rd rdg - PASSED - 67-0-3
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
      Block, Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew,
      Clark, Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart,
      Harwood, Henbest, Henderson, Jaquet, Killen, King, Kren, Lake,
      LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer,
      Moyle, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould,
      Ring, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
      Stevenson, Thayn, Trail, Vander Woude, Wood(27), Wood(35), Mr.
      NAYS -- None
      Absent and excused -- Labrador, Ringo, Wills
    Floor Sponsor - Luker
    Title apvd - to Senate
03/07    To enrol
03/08    Rpt enrol - Pres signed - Sp signed
03/09    To Governor
03/14    Governor signed
         Session Law Chapter 71
         Effective: 07/01/07

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                       IN THE SENATE
                                    SENATE BILL NO. 1060
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  8        CEEDINGS.
  9    Be It Enacted by the Legislature of the State of Idaho:
 10        SECTION 1.  That Section 15-1-201, Idaho Code, be, and the same is  hereby
 11    amended to read as follows:
 12        15-1-201.  GENERAL  DEFINITIONS.  Subject  to  additional definitions con-
 13    tained in the subsequent chapters which are applicable to specific chapters or
 14    parts, and unless the context otherwise requires, in this code:
 15        (1)  "Application" means a written request to the registrar for  an  order
 16    of informal probate or appointment under part 3 of chapter 3 of this code.
 17        (2)  "Augmented  estate"  means  the estate described in section 15-2-202,
 18    Idaho Code.
 19        (3)  "Beneficiary," as it relates to trust beneficiaries, includes a  per-
 20    son  who  has  any  present or future interest, vested or contingent, and also
 21    includes the owner of an interest by assignment or other transfer  and  as  it
 22    relates  to  a  charitable  trust, includes any person entitled to enforce the
 23    trust.
 24        (4)  "Child" includes any individual entitled to take  as  a  child  under
 25    this  code  by  intestate  succession  from  the  parent whose relationship is
 26    involved and excludes any person who is only a stepchild, a  foster  child,  a
 27    grandchild or any more remote descendant.
 28        (5)  "Claims,"  in  respect to estates of decedents and protected persons,
 29    includes liabilities of the decedent or protected person  whether  arising  in
 30    contract,  in  tort or otherwise, and liabilities of the estate which arise at
 31    or after the death of the decedent or after the appointment of a  conservator,
 32    including  funeral  expenses and expenses of administration. The term does not
 33    include estate or inheritance taxes, other tax obligations arising from activ-
 34    ities or transactions of the estate, demands or disputes regarding title of  a
 35    decedent  or protected person to specific assets alleged to be included in the
 36    estate.
 37        (6)  "Court" means the court or  branch  having  jurisdiction  in  matters
 38    relating  to the affairs of decedents, minors, incapacitated and disabled per-
 39    sons. This court in this state is known as the district court.
 40        (7)  "Conservator" means a person who is appointed by a  court  to  manage
 41    the  estate  of  a  protected  person  and  includes  limited  conservators as
 42    described by section 15-5-420, Idaho Code.
 43        (8)  "Determination of heirship of community  property"  shall  mean  that
  1    determination required by the provisions of section 15-3-303, Idaho Code, upon
  2    an application for informal probate not accompanied by presentation of a will.
  3        (9)  "Determination of heirship" shall mean that determination of heirship
  4    required by section 15-3-409, Idaho Code, upon a finding of intestacy.
  5        (10) "Devise,"  when  used  as a noun, means a testamentary disposition of
  6    real or personal property and when used as a verb, means to dispose of real or
  7    personal property by will.
  8        (11) "Devisee" means any person designated in a will to receive a devise.
  9    In the case of a devise to an existing trust or trustee, or to  a  trustee  or
 10    trust  described  by will, the trust or trustee is the devisee and the benefi-
 11    ciaries are not devisees.
 12        (12) "Disability," with respect to an  individual,  means  any  mental  or
 13    physical  impairment  which  substantially  limits  one (1) or more major life
 14    activities of the individual including, but not limited to, self-care,  manual
 15    tasks,  walking,  seeing, hearing, speaking, learning, or working, or a record
 16    of such an impairment, or being regarded as having such  an  impairment.  Dis-
 17    ability   shall   not   include   transvestism,   transsexualism,  pedophilia,
 18    exhibitionism, voyeurism, other sexual behavior disorders,  or  substance  use
 19    disorders,  compulsive  gambling, kleptomania, or pyromania. Sexual preference
 20    or orientation is not considered  an  impairment  or  disability.  Whether  an
 21    impairment  substantially  limits  a  major  life activity shall be determined
 22    without consideration of the effect of corrective or mitigating measures  used
 23    to reduce the effects of the impairment.
 24        (13) "Distributee"  means  any person who has received property of a dece-
 25    dent from his personal representative other than as a creditor or purchaser. A
 26    testamentary trustee is a distributee only to the extent of distributed assets
 27    or increment thereto remaining in his hands. A beneficiary of  a  testamentary
 28    trust  to  whom  the trustee has distributed property received from a personal
 29    representative is a distributee of the personal representative. For  the  pur-
 30    pose  of  this  provision  "testamentary  trustee"  includes a trustee to whom
 31    assets are transferred by will, to the extent of the devised assets.
 32        (14) "Emancipated minor" shall mean any male or female who has  been  mar-
 33    ried.
 34        (15) "Estate"  means  all  property  of  the decedent, including community
 35    property of the  surviving  spouse  subject  to  administration,  property  of
 36    trusts,  and  property  of  any other person whose affairs are subject to this
 37    code as it exists from time to time during administration.
 38        (16) "Exempt property" means that property of a decedent's estate which is
 39    described in section 15-2-403, Idaho Code.
 40        (17) "Fiduciary" includes personal representative,  guardian,  conservator
 41    and trustee.
 42        (18) "Foreign  personal representative" means a personal representative of
 43    another jurisdiction.
 44        (19) "Formal proceedings" means those conducted before a judge with notice
 45    to interested persons.
 46        (20) "Guardian" means a person who has qualified as a guardian of a  minor
 47    or  incapacitated  person  pursuant  to  testamentary or court appointment and
 48    includes limited guardians as described by section 15-5-304, Idaho  Code,  but
 49    excludes one who is merely a guardian ad litem.
 50        (21) "Heirs"  means those persons, including the surviving spouse, who are
 51    entitled under the statutes of intestate succession to the property of a dece-
 52    dent.
 53        (22) "Incapacitated person" is as defined in section 15-5-101, Idaho Code.
 54        (23) "Informal proceedings" means those conducted without notice to inter-
 55    ested persons by an officer of the court acting as a registrar for probate  of
  1    a will or appointment of a personal representative.
  2        (24) "Interested  person"  includes  heirs,  devisees,  children, spouses,
  3    creditors, beneficiaries and any others having a property right  in  or  claim
  4    against  a  trust estate or the estate of a decedent, ward or protected person
  5    which may be affected by the proceeding. It also includes persons having  pri-
  6    ority for appointment as personal representative, and other fiduciaries repre-
  7    senting  interested  persons.  The meaning as it relates to particular persons
  8    may vary from time to time and must be determined according to the  particular
  9    purposes  of,    and  matter involved in, any proceeding. In a guardianship or
 10    conservatorship proceeding, it also includes any governmental agency paying or
 11    planning to pay monetary benefits to the ward or protected person and any pub-
 12    lic or charitable agency that regularly concerns itself with methods for  pre-
 13    venting  unnecessary  or overly intrusive court intervention in the affairs of
 14    persons for whom protective orders may be sought and that seeks to participate
 15    in the proceedings.
 16        (25) "Issue" of a person means all his lineal descendants of  all  genera-
 17    tions,  with  the  relationship  of  parent and child at each generation being
 18    determined by the definitions of child and parent contained in this code.
 19        (26) "Lease" includes an oil, gas, or other mineral lease.
 20        (27) "Letters" includes letters  testamentary,  letters  of  guardianship,
 21    letters of administration, and letters of conservatorship.
 22        (28) "Minor"  means  a  male  under eighteen (18) years of age or a female
 23    under eighteen (18) years of age.
 24        (29) "Mortgage" means any conveyance, agreement or  arrangement  in  which
 25    property is used as security.
 26        (30) "Nonresident  decedent" means a decedent who was domiciled in another
 27    jurisdiction at the time of his death.
 28        (31) "Organization" includes a  corporation,  government  or  governmental
 29    subdivision  or agency, business trust, estate, trust, partnership or associa-
 30    tion, two (2) or more persons having a joint or common interest, or any  other
 31    legal entity.
 32        (32) "Parent"  includes any person entitled to take, or who would be enti-
 33    tled to take if the child died without a will, as a parent under this code  by
 34    intestate  succession  from  the  child  whose relationship is in question and
 35    excludes any person who is only a stepparent, foster parent, or grandparent.
 36        (33) "Person" means an individual, a corporation, business trust,  estate,
 37    trust,  partnership,  limited  liability  company, association, joint venture,
 38    public corporation, government, governmental subdivision, agency,  or  instru-
 39    mentality, or any other legal or commercial entity.
 40        (34) "Personal representative" includes executor, administrator, successor
 41    personal  representative,  special administrator, and persons who perform sub-
 42    stantially the same function under the law governing  their  status.  "General
 43    personal representative" excludes special administrator.
 44        (35) "Petition"  means  a  written request to the court for an order after
 45    notice.
 46        (36) "Proceeding" includes action at law and suit in equity.
 47        (37) "Property" includes both real and personal property or  any  interest
 48    therein and means anything that may be the subject of ownership.
 49        (38) "Protected person" is as defined in section 15-5-101, Idaho Code.
 50        (39) "Protective  proceeding"  is  as  defined  in section 15-5-101, Idaho
 51    Code.
 52        (40) "Quasi-community  property"  is  the  property  defined  by   section
 53    15-2-201, Idaho Code.
 54        (41) "Registrar" refers to magistrates or judges of the district court who
 55    shall  perform  the  functions  of  registrar as provided in section 15-1-307,
  1    Idaho Code.
  2        (42) "Security" includes any note, stock, treasury stock, bond, debenture,
  3    evidence of indebtedness, certificate of interest or participation in an  oil,
  4    gas  or  mining  title  or lease or in payments out of production under such a
  5    title or lease, collateral trust certificate, transferable share, voting trust
  6    certificate or, in general, any interest or instrument  commonly  known  as  a
  7    security,  or  any  certificate of interest or participation, any temporary or
  8    interim certificate, receipt or certificate of deposit for, or any warrant  or
  9    right to subscribe to or purchase, any of the foregoing.
 10        (43) "Settlement,"  in reference to a decedent's estate, includes the full
 11    process of administration, distribution and closing.
 12        (44) "Special administrator" means a personal representative as  described
 13    by sections 15-3-614 through 15-3-618, Idaho Code.
 14        (45) "State"  includes  any  state  of  the United States, the District of
 15    Columbia, the Commonwealth of Puerto Rico, and  any  territory  or  possession
 16    subject to the legislative authority of the United States.
 17        (46) "Successor  personal representative" means a personal representative,
 18    other than a special administrator, who is appointed to succeed  a  previously
 19    appointed personal representative.
 20        (47) "Successors" means those persons, other than creditors, who are enti-
 21    tled to property of a decedent under his will or this code.
 22        (48) "Supervised  administration"  refers  to the proceedings described in
 23    part 5, chapter 3, of this code.
 24        (49) "Testacy proceeding" means a proceeding to establish a will or deter-
 25    mine intestacy.
 26        (50) "Trust" includes any express trust, private or charitable, with addi-
 27    tions thereto, wherever and however created. It also includes a trust  created
 28    or  determined  by  judgment or decree under which the trust is to be adminis-
 29    tered in the manner of an express trust. "Trust" excludes  other  constructive
 30    trusts, and it excludes resulting trusts, conservatorships, personal represen-
 31    tatives,  trust  accounts  as  defined  in  chapter  6 of this code, custodial
 32    arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
 33    viding for certificates to be issued to  beneficiaries,  common  trust  funds,
 34    voting  trusts,  security arrangements, liquidation trusts, and trusts for the
 35    primary purpose of paying debts, dividends, interest, salaries,  wages,  prof-
 36    its,  pensions,  or  employee  benefits of any kind, and any arrangement under
 37    which a person is nominee or escrowee for another.
 38        (51) "Trustee" includes an original,  additional,  or  successor  trustee,
 39    whether or not appointed or confirmed by court.
 40        (52) "Ward" is as defined in section 15-5-101, Idaho Code.
 41        (53) "Will" is a testamentary instrument and includes codicil and any tes-
 42    tamentary  instrument  which merely appoints an executor or revokes or revises
 43    another will.
 44        (54) "Separate property" is as defined in section 32-903, Idaho Code.
 45        (55) "Community property" is as defined in section 32-906, Idaho Code.
 46        SECTION 2.  That Section 15-5-309, Idaho Code, be, and the same is  hereby
 47    amended to read as follows:
 48        15-5-309.  NOTICES  IN  GUARDIANSHIP PROCEEDINGS. (a1) In a proceeding for
 49    the appointment or removal of a guardian of an incapacitated  person  and,  if
 50    notice  is  required  in a proceeding for appointment of a temporary guardian,
 51    notice of hearing shall be given to each of the following:
 52        (1a)  tThe ward or the person alleged to be incapacitated and his  spouse,
 53        or, if none, his adult children or if none, his parents;
  1        (2b)  aAny  person  who is serving as his guardian, conservator or who has
  2        his care and custody;
  3        (3c)  iIn case no other person is notified under  subsection  (a1)(1a)  of
  4        this  section, at least one (1) of his closest adult relatives, if any can
  5        be found; and
  6        (4d)  aAny person who has filed a request for notice under this section.
  7        (b2)  Notice shall be served personally on the alleged incapacitated  per-
  8    son. Notices to other persons as required by this section shall be served per-
  9    sonally  if  the  person  to be notified can be found within the state. In all
 10    other cases, required notices shall be given as provided in  section  15-1-401
 11    of  this  code.  Waiver of notice by the person alleged to be incapacitated is
 12    not effective unless he attends the hearing or his waiver of  notice  is  con-
 13    firmed  in  an interview with the visitor. Representation of the alleged inca-
 14    pacitated person by a guardian ad litem is not necessary.
 15        (c3)  Any person desiring notice of any order or filing  in  a  proceeding
 16    involving  an alleged incapacitated person in whom he is interested may file a
 17    request for notice with the court stating his name, the name of the  incapaci-
 18    tated  person,  the nature of the requesting person's interest, and address or
 19    that of his attorney. Upon payment of any fee required  by  statute  or  court
 20    rule,  the  clerk  shall mail a copy of the request to the guardian if one has
 21    been appointed or to the petitioner if there is  no  guardian.  A  request  is
 22    effective  only  as  to  matters  occurring after its filing. Any governmental
 23    agency paying or planning to pay benefits to the alleged incapacitated person,
 24    or any public or charitable agency that regularly concerns itself with methods
 25    for preventing unnecessary and  overly-intrusive  court  intervention  in  the
 26    affairs of persons for whom guardians may be sought and that seeks to partici-
 27    pate in the proceedings, as an interested person in a guardianship proceeding.
 28        SECTION  3.  That Section 15-5-405, Idaho Code, be, and the same is hereby
 29    amended to read as follows:
 30        15-5-405.  NOTICE. (a1) On a petition for appointment of a conservator  or
 31    other  protective  order,  the  person  to  be protected and his non-estranged
 32    spouse or, if none, his parents, must be served personally with notice of  the
 33    proceedings at least fourteen (14) days before the date of hearing if they can
 34    be found within the state, or, if they cannot be found within the state, they,
 35    and  any  other guardian or conservator and any government agency paying bene-
 36    fits to the person sought to be protected (if the person seeking the  appoint-
 37    ment has knowledge of the existence of these benefits) must be given notice in
 38    accordance with section 15-1-401, Idaho of this cCode. Waiver by the person to
 39    be protected is not effective unless the proceedings are limited to payment of
 40    veterans  administration  benefits, he attends the hearing or, unless minority
 41    is the reason for the proceeding, waiver is confirmed in an interview with the
 42    visitor.
 43        (b2)  Notice of a petition for appointment of a conservator or other  ini-
 44    tial protective order and of any subsequent hearing, must be given to any per-
 45    son  who  has  filed a request for notice under section 15-5-406, of this Part
 46    Idaho Code, and to interested persons and  other  persons  as  the  court  may
 47    direct.  Except  as  otherwise  provided  in  subsection (a1) of this section,
 48    notice shall be given in accordance  with  section  15-1-401,  Idaho  of  this
 49    cCode.
 50        SECTION  4.  That Section 15-5-406, Idaho Code, be, and the same is hereby
 51    amended to read as follows:
  2    SON. Any person desiring notice of any order or filing in  a  protective  pro-
  3    ceeding described in this part involving a person in whom he is interested may
  4    file  a  request  for  notice with the court stating his name, the name of the
  5    alleged disabled person, the nature of the requesting person's  interest,  and
  6    his address or that of his attorney. Upon payment of any fee required by stat-
  7    ute or court rule, the clerk shall mail a copy of the request to the conserva-
  8    tor  if  one has been appointed, or to the petitioner if there is no conserva-
  9    tor. A request is effective only as to matters occurring after its filing. Any
 10    governmental agency paying or planning to pay benefits to the alleged disabled
 11    person, and any public or charitable agency  that  regularly  concerns  itself
 12    with methods for preventing unnecessary or overly-intrusive court intervention
 13    in  the  affairs  of persons for whom protective orders may be sought and that
 14    seeks to participate in the proceedings, is an interested person in a  protec-
 15    tive proceeding under this part.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                            RS: 16718

In a prior session, language about certain governmental and
public or charitable agencies who are entitled to notice in
conservatorship and guardianship proceedings, which then existed
in three code sections, set forth above in Sections Two, Three,
and Four of the bill, was integrated into the general definitions
portion of the Probate Code, as set forth in Section One of the
bill.  However, that language was not then deleted from the other
code sections, out of caution, until it was certain that the said
language was not cross-referenced elsewhere.  The language can
now be safely deleted, since it needs to exist only in the
general definitions section of the Probate Code, as set forth in
Section One of the bill, and is not cross-referenced elsewhere.

Additionally, as set forth in Section One of the bill, when the
language was consolidated into the general definitions section,
an additional word, "monetary" was inserted.  This bill strikes
that word, since use of that word incorrectly limits the type of
benefits that entitle a governmental agency to notice.

                          FISCAL NOTE

     This bill will have no fiscal impact.

Name:     Robert L. Aldridge, Trust & Estate Professionals of
          Idaho, Inc.
office:   (208) 336-9880  Cell: (208) 631-2481

STATEMENT OF PURPOSE/FISCAL NOTE                        S 1060