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S1327................................................by JUDICIARY AND RULES
GUARDIANS - Amends existing law relating to protection of persons under
disability to revise the information to be included in the visitor's
report; to provide the visitor with certain discretionary authority; to
revise the priority for appointment as guardian for persons who are not
disqualified; to provide for restrictions against certain persons being
appointed as guardian; to revise guardian powers and duties; and to provide
the guardian ad litem certain discretionary authority.
01/22 Senate intro - 1st rdg - to printing
01/23 Rpt prt - to Jud
02/05 Rpt out - rec d/p - to 2nd rdg
02/06 2nd rdg - to 3rd rdg
02/08 3rd rdg - PASSED - 33-0-2
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Fulcher, Gannon, Geddes, Goedde,
Hammond, Heinrich, Hill, Kelly, Keough, Langhorst, Little, Lodge,
Malepeai(Sagness), McGee, McKague, McKenzie, Pearce, Richardson,
Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- Davis, Jorgenson
Floor Sponsor - Richardson
Title apvd - to House
02/11 House intro - 1st rdg - to Jud
02/26 Rpt out - rec d/p - to 2nd rdg
02/27 2nd rdg - to 3rd rdg
03/03 3rd rdg - PASSED - 65-0-5
AYES -- Anderson, Andrus, Barrett, Bedke, Bell, Bilbao, Black, Block,
Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon, Chavez,
Chew, Clark, Collins, Crane, Durst, Eskridge, Hagedorn, Hart,
Harwood, Henderson, Jaquet, Killen, King, Kren, Labrador, Lake,
LeFavour, Loertscher, Marriott, Mathews, McGeachin, Mortimer, Moyle,
Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ringo,
Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(02),
Shepherd(08), Shirley, Shively, Smith(24), Smith(30), Snodgrass,
Thayn, Thomas, Trail, Vander Woude, Wills, Wood(27), Wood(35)
NAYS -- None
Absent and excused -- Bayer, Henbest, Luker, Stevenson, Mr. Speaker
Floor Sponsor - Ruchti
Title apvd - to Senate
03/04 To enrol
03/05 Rpt enrol - Pres signed
03/06 Sp signed
03/07 To Governor
03/11 Governor signed
Session Law Chapter 74
Effective: 07/01/08
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1327 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO PROTECTION OF PERSONS UNDER DISABILITY; AMENDING SECTION 15-5-308, 3 IDAHO CODE, TO REVISE THE INFORMATION TO BE INCLUDED IN THE VISITOR'S 4 REPORT AND TO PROVIDE THE VISITOR WITH CERTAIN DISCRETIONARY AUTHORITY; 5 AMENDING SECTION 15-5-311, IDAHO CODE, TO REVISE THE PRIORITY FOR APPOINT- 6 MENT AS GUARDIAN FOR PERSONS WHO ARE NOT DISQUALIFIED, TO PROVIDE FOR 7 RESTRICTIONS AGAINST CERTAIN PERSONS BEING APPOINTED AS GUARDIAN AND TO 8 MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 15-5-312, IDAHO CODE, TO 9 REVISE GUARDIAN POWERS AND DUTIES AND TO MAKE TECHNICAL CORRECTIONS; 10 AMENDING SECTION 15-5-316, IDAHO CODE, TO PROVIDE THE GUARDIAN AD LITEM 11 CERTAIN DISCRETIONARY AUTHORITY; AND AMENDING SECTION 66-405, IDAHO CODE, 12 TO PROVIDE A CORRECT CODE REFERENCE. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Section 15-5-308, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 15-5-308. VISITOR IN GUARDIANSHIP PROCEEDING. (1) A visitor is, with 17 respect to guardianship proceedings, a person who is trained in law, nursing, 18 psychology, social work, or counseling or has other qualifications that make 19 him suitable to perform the function and is an officer, employee or special 20 appointee of the court with no personal interest in the proceedings. The 21 visitor's report is to include the following information: a description of the 22 nature, cause and degree of incapacity, and the basis upon which this judgment 23 is made; a description of the needs of the person alleged to be incapacitated 24 for care and treatment and the probable residential requirements; a statement 25 as to whether a convicted felon resides in or frequents the incapacitated 26 person's proposed residence; an evaluation of the appropriateness of the 27 guardian or conservator whose appointment is sought and a description of the 28 steps the proposed guardian or conservator has taken or intends to take to 29 meet the needs of the incapacitated person; a description of the abilities of 30 the alleged incapacitated person and a recommendation as to whether a full or 31 limited guardianship or conservatorship should be ordered and, if limited, the 32 visitor's recommendation of the specific areas of authority the limited 33 guardianship or conservator should have and the limitations to be placed on 34 the incapacitated person; any expression of approval or disapproval made by 35 the alleged incapacitated person concerning the proposed guardianship or con- 36 servatorship; an analysis of the financial status and assets of the alleged 37 incapacitated person; identification of people with significant interest in 38 the welfare of the alleged incapacitated person who should be informed of the 39 proceedings; a description of the qualifications and relationship of the pro- 40 posed guardian or conservator; an explanation of how the alleged incapacitated 41 person responded to the advice of the proceedings and the right to be present 42 at the hearing on the petition; in the case of conservatorship, a recommenda- 43 tion for or against a bond requirement for the proposed conservator, taking 2 1 into account the financial statement of the person whose appointment is 2 sought. 3 (2) Any person appointed as a visitor shall be personally immune from any 4 liability for acts, omissions or errors in the same manner as if such person 5 were a volunteer or director under the provisions of section 6-1605, Idaho 6 Code. 7 (3) The visitor may not also be appointed as guardian ad litem for the 8 person alleged to be incapacitated nor may the guardian ad litem for the per- 9 son alleged to be incapacitated be appointed as visitor, nor may the visitor 10 and the guardian ad litem for the person alleged to be incapacitated be mem- 11 bers or employees of the same entity including, but not limited to, being mem- 12 bers or employees of the same law firm. 13 (4) The visitor shall have the discretionary authority to conduct a crim- 14 inal background check on a proposed guardian, conservator or a person who 15 resides in or frequents the incapacitated person's proposed residence. 16 SECTION 2. That Section 15-5-311, Idaho Code, be, and the same is hereby 17 amended to read as follows: 18 15-5-311. WHO MAY BE GUARDIAN -- PRIORITIES. (a1) Any competent person, 19 except as set forth hereafter, or a suitable institution may be appointed 20 guardian of an incapacitated person. 21 (b2) The person preferred by the incapacitated person shall be appointed 22 guardian unless good cause be shown why appointment of such person is contrary 23 to the best interests of the incapacitated person. If the incapacitated person 24 is unable to express a preference, any previous expression, including a dura- 25 ble power of attorney for health care, may be considered by the court. 26 (c3) Persons who are not disqualified have priority for appointment as 27 guardian in the following order: 28 (1a) The person preferred by the incapacitated person. The court shall 29 always consider the wishes expressed by an incapacitated person as to who 30 shall be appointed guardian; 31 (b) The person(s) nominated as health care agent in a durable power of 32 attorney for health care by the incapacitated person, in the order of pri- 33 ority set forth in such power; 34 (2c) The spouse of the incapacitated person; 35 (3d) An adult child of the incapacitated person; 36 (4e) A parent of the incapacitated person, including a person nominated 37 by will or other writing signed by a deceased parent; 38 (5f) Any relative of the incapacitated person with whom he has resided 39 for more than six (6) months prior to the filing of the petition; 40 (6g) A person nominated by the person who is caring for him or paying 41 benefits to him. 42 (d4) No convicted felon, or person whose residence is the incapacitated 43 person's proposed residence or will be frequented by the incapacitated person 44 and is frequented by a convicted felon, shall be appointed as a guardian of an 45 incapacitated person unless the court finds by clear and convincing evidence 46 that such appointment is in the best interests of the incapacitated person. 47 SECTION 3. That Section 15-5-312, Idaho Code, be, and the same is hereby 48 amended to read as follows: 49 15-5-312. GENERAL POWERS AND DUTIES OF GUARDIAN. (a1) A guardian of an 50 incapacitated person has the powers and responsibilities of a parent who has 51 not been deprived of custody of his unemancipated minor child except that a 3 1 guardian is not legally obligated to provide from his own funds for the ward 2 and is not liable to third persons for acts of the ward, and except as herein- 3 after limited. In particular, and without qualifying the foregoing, a guardian 4 has the following powers and duties, except as modified by order of the court 5 when the guardianship is limited: 6 (1a) To the extent that it is consistent with the terms of any order by 7 a court of competent jurisdiction relating to detention or commitment of 8 the ward, he is entitled to custody of the person of his ward and may 9 establish the ward's place of abode within or without this state. The 10 guardian shall take reasonable measures to ensure that a convicted felon 11 does not reside with, care for or visit the ward without court approval. 12 (2b) If entitled to custody of his ward he shall make provision for the 13 care, comfort and maintenance of his ward, and, whenever appropriate, 14 arrange for his training and education. Without regard to custodial rights 15 of the ward's person, he shall take reasonable care of his ward's cloth- 16 ing, furniture, vehicles and other personal effects and commence protec- 17 tive proceedings if other property of his ward is in need of protection. 18 (3c) A guardian may give any consents or approvals that may be necessary 19 to enable the ward to receive medical or other professional care, counsel, 20 treatment or service. A guardian shall be automatically entitled to any 21 information governed by the health insurance portability and accountabil- 22 ity act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 CFR 160 through 164, and 23 the appointment of such guardian shall be deemed to grant such release 24 authority. 25 (4d) If no conservator for the estate of the ward has been appointed, the 26 guardian may institute proceedings to appoint a conservator. In no circum- 27 stances shall the guardian exercise any of the powers of a conservator. 28 (5e) A guardian shall be required to report as provided in section 29 15-5-419, Idaho Code. 30 (6f) If a conservator has been appointed, all of the ward's estate 31 received by the guardian in excess of those funds expended to meet current 32 expenses for support, care, and education of the ward must be paid to the 33 conservator for management as provided in this code, and the guardian must 34 account to the conservator for funds expended. 35 (b2) Any guardian of one for whom a conservator also has been appointed 36 shall control the custody and care of the ward, and is entitled to receive 37 reasonable sums for his services and for room and board furnished to the ward 38 as agreed upon between him and the conservator, provided the amounts agreed 39 upon are reasonable under the circumstances. The guardian may request the con- 40 servator to expend the ward's estate by payment to third persons or institu- 41 tions for the ward's care and maintenance. 42 (c3) A guardian may delegate certain of his responsibilities for deci- 43 sions affecting the ward's well-being to the ward when reasonable under all of 44 the circumstances. 45 SECTION 4. That Section 15-5-316, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 15-5-316. GUARDIAN AD LITEM -- RIGHTS AND POWERS. (1) The guardian ad 48 litem has the rights and powers set forth in this section, which shall con- 49 tinue until the resignation of the guardian ad litem or until the court 50 removes the guardian ad litem or no longer has jurisdiction, whichever occurs 51 first. 52 (2) The guardian ad litem shall have the right and power to file plead- 53 ings, motions, memoranda and briefs on behalf of the ward, and to have all of 4 1 the rights of the ward, whether conferred by statute, rule of court, or other- 2 wise. 3 (3) All parties to any proceeding under this chapter shall promptly 4 notify the guardian ad litem, and the guardian's attorney, if any, of all 5 hearings, staff hearings or meetings, investigations, depositions, and signif- 6 icant changes of circumstances of the ward. 7 (4) Except to the extent prohibited or regulated by federal law, upon 8 presentation of a copy of the order appointing the guardian ad litem, any per- 9 son or agency including, without limitation, any hospital, school organiza- 10 tion, department of health and welfare, doctor, nurse or other health care 11 provider, psychologist, psychiatrist, police department, or mental health 12 clinic, shall permit the guardian ad litem to inspect and copy pertinent 13 records relating to the ward necessary for the proceeding for which the guard- 14 ian ad litem has been appointed. 15 (5) The guardian ad litem shall have the discretionary authority to con- 16 duct a criminal background check on a proposed guardian, conservator or person 17 who resides in or frequents the ward's proposed residence. 18 SECTION 5. That Section 66-405, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 66-405. ORDER IN PROTECTIVE PROCEEDINGS. (1) If it is determined that the 21 respondent is not developmentally disabled but appears in need of protective 22 services, the court may cause the proceeding to be expanded or altered for 23 consideration under the uniform probate code. 24 (2) If it is determined that the respondent is able to manage financial 25 resources and meet essential requirements for physical health or safety, the 26 court shall dismiss the petition. 27 (3) If it is determined that the respondent is developmentally disabled 28 and is unable to manage some financial resources or meet some essential 29 requirements for physical health or safety, the court may appoint a partial 30 guardian and/or partial conservator on behalf of the respondent. An order 31 establishing partial guardianship or partial conservatorship shall define the 32 powers and duties of the partial guardian or partial conservator so as to per- 33 mit the respondent to meet essential requirements for physical health or 34 safety and to manage financial resources commensurate with his ability to do 35 so, and shall specify all legal restrictions to which he is subject. A person 36 for whom a partial guardianship or partial conservatorship has been appointed 37 under this chapter retains all legal and civil rights except those which have 38 by court order been limited or which have been specifically granted to the 39 partial guardian or partial conservator by the court. 40 (4) If it is determined that the respondent is developmentally disabled 41 and is unable to manage financial resources or meet essential requirements for 42 physical health or safety even with the appointment of a partial guardian or 43 partial conservator, the court may appoint a total guardian and/or total con- 44 servator. 45 (5) In the event that more than one (1) person seeks to be appointed 46 guardian and/or conservator, the court shall appoint the person or persons 47 most capable of serving on behalf of the respondent; the court shall not cus- 48 tomarily or ordinarily appoint the department or any other organization or 49 individual, public or private, that is or is likely to be providing services 50 to the respondent. 51 (6) Subject to the limitations of the provisions of subsection (7) of 52 this section, guardians or conservators may have any of the duties and powers 53 as provided in sections 15-5-312(a1)(1a) through (4d), 15-5-424 and 15-5-425, 5 1 Idaho Code, and as specified in the order. Any order appointing a partial or 2 total guardian or partial or total conservator under the provisions of this 3 section must require a report to the court at least annually. In addition to 4 such other requirements imposed by law or order, the report shall include: 5 (a) A description of the respondent's current mental, physical and social 6 condition; 7 (b) The respondent's present address and living arrangement; 8 (c) A description of any significant changes in the capacity of the 9 respondent to meet essential requirements for physical health or safety or 10 to manage financial resources; 11 (d) A description of services being provided the respondent; 12 (e) A description of significant actions taken by the guardian or conser- 13 vator during the reporting period; 14 (f) Any significant problems relating to the guardianship or conservator- 15 ship; 16 (g) A complete financial statement of the financial resources under the 17 control or supervision of the guardian or conservator; and 18 (h) A description of the need for continued guardianship or conservator- 19 ship services. 20 (7) No guardian appointed under this chapter shall have the authority to 21 refuse or withhold consent for medically necessary treatment when the effect 22 of withholding such treatment would seriously endanger the life or health and 23 well-being of the person with a developmental disability. To withhold or 24 attempt to withhold such treatment shall constitute neglect of the person and 25 be cause for removal of the guardian. No physician or caregiver shall withhold 26 or withdraw such treatment for a respondent whose condition is not terminal or 27 whose death is not imminent. If the physician or caregiver cannot obtain valid 28 consent for medically necessary treatment from the guardian, he shall provide 29 the medically necessary treatment as authorized by section 39-4504(1)(g), 30 Idaho Code. 31 (8) A guardian appointed under this chapter may consent to withholding or 32 withdrawal of artificial life-sustaining procedures, only if the respondent: 33 (a) Has an incurable injury, disease, illness or condition, certified by 34 the respondent's attending physician and at least one (1) other physician 35 to be terminal such that the application of artificial life-sustaining 36 procedures would not result in the possibility of saving or significantly 37 prolonging the life of the respondent, and would only serve to prolong the 38 moment of the respondent's death for a period of hours, days or weeks, and 39 where both physicians certify that death is imminent, whether or not the 40 life-sustaining procedures are used; or 41 (b) Has been diagnosed by the respondent's attending physician and at 42 least one (1) other physician as being in a persistent vegetative state 43 which is irreversible and from which the respondent will never regain con- 44 sciousness. 45 (9) Any person, who has information that medically necessary treatment of 46 a respondent has been withheld or withdrawn, may report such information to 47 adult protective services or to the Idaho protection and advocacy system for 48 people with developmental disabilities, who shall have the authority to inves- 49 tigate the report and in appropriate cases to seek a court order to ensure 50 that medically necessary treatment is provided. 51 If adult protective services or the protection and advocacy system deter- 52 mines that withholding of medical treatment violates the provisions of this 53 section, they may petition the court for an ex parte order to provide or con- 54 tinue the medical treatment in question. If the court finds, based on affida- 55 vits or other evidence, that there is probable cause to believe that the with- 6 1 holding of medical treatment in a particular case violates the provisions of 2 this section, and that the life or health of the patient is endangered 3 thereby, the court shall issue an ex parte order to continue or to provide the 4 treatment until such time as the court can hear evidence from the parties 5 involved. Petitions for court orders under this section shall be expedited by 6 the courts and heard as soon as possible. No bond shall be required of a peti- 7 tioner under this section. 8 (10) No partial or total guardian or partial or total conservator 9 appointed under the provisions of this section may without specific approval 10 of the court in a proceeding separate from that in which such guardian or con- 11 servator was appointed: 12 (a) Consent to medical or surgical treatment the effect of which perma- 13 nently prohibits the conception of children by the respondent unless the 14 treatment or procedures are necessary to protect the physical health of 15 the respondent and would be prescribed for a person who is not developmen- 16 tally disabled; 17 (b) Consent to experimental surgery, procedures or medications; or 18 (c) Delegate the powers granted by the order.
STATEMENT OF PURPOSE
RS: 17507
Idaho law currently provides that a convicted felon should not be
appointed guardian of an incapacitated person unless the court
finds that such appointment is in the best interest of the
incapacitated person. However, a convicted felon could reside at
the residence of the proposed guardian, or frequent that residence,
and thereby endanger the incapacitated person. This bill provides
that the court visitor and guardian ad litem, as part of their
investigation and written reports to the court, determines whether
a convicted felon does in fact reside at or frequent the residence.
Both are also given the authority to conduct a criminal background
check of the proposed guardian or any person who resides at or
frequents the proposed residence of the incapacitated person. The
guardian, after appointment, is required to take reasonable
measures to insure that a convicted felon does not reside at,
frequent, or visit, the ward's residence without court order.
Finally, in Section Two, the bill clarifies that the ability of the
incapacitated person to nominate a guardian includes the naming of
a person as health care agent in a durable power of attorney for
health care. By so naming a person as health care agent, the
incapacitated person has stated that such person is qualified to,
and has been picked by, the incapacitated person to make health
care decisions for the incapacitated person, which is the major
function of a guardian. The existing first priority, the person
nominated by the incapacitated person, has already been believed to
include the person nominated in a health care power, but this bill
makes that interpretation clear.
FISCAL NOTE
This bill will have no fiscal impact.
CONTACT:
Robert L. Aldridge, Trust & Estate Professionals of Idaho, Inc.
Telephone: office: (208) 336-9880 Cell: (208) 631-2481
STATEMENT OF PURPOSE/FISCAL NOTE S 1327