TITLE 15

UNIFORM PROBATE CODE

CHAPTER 5

PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY [EFFECTIVE UNTIL JANUARY 1, 2027] UNIFORM GUARDIANSHIP, CONSERVATORSHIP, AND OTHER PROTECTIVE ARRANGEMENTS ACT [EFFECTIVE JANUARY 1, 2027]

PART 3

GUARDIANS OF INCAPACITATED PERSONS [EFFECTIVE UNTIL JANUARY 1, 2027] GUARDIANSHIP OF ADULT [EFFECTIVE JANUARY 1, 2027]

15-5-311.  Who may be guardian — Priorities. [effective until January 1, 2027] (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 chapter 25[27], title 56, 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 chapter 25[27], title 56, 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.

15-5-311.  notice of order of appointment — rights. [effective January 1, 2027] (1) A guardian appointed under section 15-5-309, Idaho Code, shall give the adult subject to guardianship and all other persons given notice under section 15-5-303, Idaho Code, a copy of the order of appointment, together with notice of the right to request termination or modification. The order and notice shall be given not later than fourteen (14) days after the appointment.

(2)  Not later than thirty (30) days after appointment of a guardian under section 15-5-309, Idaho Code, the court shall give to the adult subject to guardianship, to the guardian, and to any other person entitled to notice under section 15-5-310(5), Idaho Code, or under a subsequent order, a statement of the rights of the adult subject to guardianship and the procedures to seek relief if the adult is denied those rights. The statement shall be communicated in the manner set forth in section 15-5-113(3), Idaho Code. The statement shall notify the adult subject to guardianship of the right to:

(a)  Seek termination or modification of the guardianship or removal of the guardian and choose an attorney to represent the adult subject to guardianship in these matters;

(b)  Be involved in decisions affecting the adult subject to guardianship, including decisions about the adult subject to guardianship’s care, dwelling, activities, or social interactions, to the extent reasonably feasible;

(c)  Be involved in health care decision-making to the extent reasonably feasible and be supported in understanding the risks and benefits of health care options to the extent reasonably feasible;

(d)  Be notified at least fourteen (14) days before a change in the adult subject to guardianship’s primary dwelling or permanent move to a nursing home, mental health facility, or other facility that places restrictions on the adult subject to guardianship’s ability to leave or have visitors unless the change or move is proposed in the guardian’s plan under section 15-5-316, Idaho Code, or authorized by the court by specific order;

(e)  Object to a change or move described in paragraph (d) of this subsection and the process for objecting;

(f)  Communicate, visit, or interact with others, including receiving visitors and making or receiving telephone calls, personal mail, or electronic communications, including through social media, unless:

(i)   The guardian has been authorized by the court by specific order to restrict communications, visits, or interactions;

(ii)  A protective order or protective arrangement instead of guardianship is in effect that limits contact between the adult subject to guardianship and a person; or

(iii) The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult subject to guardianship, and the restriction is:

1.  For a period of not more than seven (7) business days if the person has a family or preexisting social relationship with the adult subject to guardianship; or

2.  For a period of not more than sixty (60) days if the person does not have a family or preexisting social relationship with the adult subject to guardianship;

(g)  Receive a copy of the guardian’s plan under section 15-5-316, Idaho Code, and the guardian’s report under section 15-5-317, Idaho Code; and

(h)  Object to the guardian’s plan or report.

History:

[15-5-311, added 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; am. 2026, ch. 220, sec. 5, p. 921; repealed and added 2026, ch. 79, sec. 5, p. 354.]