2008 Legislation
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SENATE BILL NO. 1327<br /> – Guardian, appointment/duties


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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

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                                       IN THE SENATE

                                    SENATE BILL NO. 1327

                              BY JUDICIARY AND RULES COMMITTEE

  1                                        AN ACT

 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


  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


  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


  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,


  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-


  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 / Fiscal Impact

                       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.

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