TITLE 15

UNIFORM PROBATE CODE

CHAPTER 5

PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY

PART 3.

GUARDIANS OF INCAPACITATED PERSONS

15-5-311.  Who may be guardian — Priorities. (1) Any competent person, except as set forth hereafter, or a suitable institution may be appointed guardian of an incapacitated person.

(2)  The person preferred by the incapacitated person shall be appointed guardian unless good cause be shown why appointment of such person is contrary to the best interests of the incapacitated person. If the incapacitated person is unable to express a preference, any previous expression, including a durable power of attorney for health care, may be considered by the court.

(3)  Persons who are not disqualified have priority for appointment as guardian in the following order:

(a)  The person preferred by the incapacitated person. The court shall always consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;

(b)  The person(s) nominated as health care agent in a durable power of attorney for health care by the incapacitated person, in the order of priority set forth in such power;

(c)  The spouse of the incapacitated person;

(d)  An adult child of the incapacitated person;

(e)  A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(f)  Any relative of the incapacitated person with whom he has resided for more than six (6) months prior to the filing of the petition;

(g)  A person nominated by the person who is caring for him or paying benefits to him.

(4)  No convicted felon, or person whose residence is the incapacitated person’s proposed residence or will be frequented by the incapacitated person and is frequented by a convicted felon, shall be appointed as a guardian of an incapacitated person unless the court finds by clear and convincing evidence that such appointment is in the best interests of the incapacitated person.

(5)  No individual shall be appointed as guardian of an incapacitated person unless all of the following first occurs:

(a)  The proposed guardian has submitted to and paid for a criminal history and background check conducted pursuant to section 56-1004A(2) and (3), Idaho Code;

(b)  Pursuant to an order of the court so requiring, any individual who resides in the incapacitated person’s proposed residence has submitted, at the proposed guardian’s expense, to a criminal history and background check conducted pursuant to section 56-1004A(2) and (3), Idaho Code;

(c)  The findings of such criminal history and background checks have been made available to the visitor and guardian ad litem by the department of health and welfare; and

(d)  The proposed guardian provided a report of his or her civil judgments and bankruptcies to the visitor, the guardian ad litem and all others entitled to notice of the guardianship proceeding pursuant to section 15-5-309, Idaho Code.

(6)  The provisions of paragraphs (a) and (d) of subsection (5) of this section shall not apply to an institution nor to a legal or commercial entity.

(7)  Each proposed guardian and each appointed guardian shall immediately report any change in his or her criminal history and any material change in the information required by subsection (5) of this section to the visitor, guardian ad litem, all others entitled to notice of the guardianship proceeding pursuant to section 15-5-309, Idaho Code, and to the court.

History:

[15-5-311, as added by 1971, ch. 111, sec. 1, p. 233; am. 1999, ch. 128, sec. 4, p. 373; am. 2000, ch. 179, sec. 1, p. 448; am. 2004, ch. 52, sec. 1, p. 242; am. 2008, ch. 74, sec. 2, p. 196; am. 2013, ch. 262, sec. 2, p. 641.]