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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.
Speaker
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
]]]] 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
2 RELATING TO THE IDAHO PROBATE CODE; AMENDING SECTION 15-1-201, IDAHO CODE, TO
3 REVISE A DEFINITION; AMENDING SECTION 15-5-309, IDAHO CODE, TO REVISE PRO-
4 VISIONS RELATING TO NOTICES IN GUARDIANSHIP PROCEEDINGS AND TO MAKE TECH-
5 NICAL CORRECTIONS; AMENDING SECTION 15-5-405, IDAHO CODE, TO REVISE NOTICE
6 PROVISIONS; AND AMENDING SECTION 15-5-406, IDAHO CODE, TO REMOVE LANGUAGE
7 PROVIDING THAT CERTAIN ENTITIES ARE INTERESTED PERSONS IN PROTECTIVE PRO-
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
2
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
3
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,
4
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;
5
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:
6
1 15-5-406. PROTECTIVE PROCEEDINGS -- REQUEST FOR NOTICE -- INTERESTED PER-
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
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.
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 1060