TITLE 66

STATE CHARITABLE INSTITUTIONS

CHAPTER 4

TREATMENT AND CARE OF THE DEVELOPMENTALLY DISABLED

66-405.  Order in protective proceedings. (1) If it is determined that the respondent does not have a developmental disability but appears in need of protective services, the court may cause the proceeding to be expanded or altered for consideration under the uniform probate code.

(2)  If it is determined that the respondent is able to manage financial resources and meet essential requirements for physical health or safety, the court shall dismiss the petition.

(3)  If it is determined that the respondent has a developmental disability and is unable to manage some financial resources or meet some essential requirements for physical health or safety, the court may appoint a partial guardian and/or partial conservator on behalf of the respondent. An order establishing partial guardianship or partial conservatorship shall define the powers and duties of the partial guardian or partial conservator so as to permit the respondent to meet essential requirements for physical health or safety and to manage financial resources commensurate with his ability to do so, and shall specify all legal restrictions to which he is subject. A respondent for whom a partial guardianship or partial conservatorship has been appointed under this chapter retains all legal and civil rights except those which have by court order been limited or which have been specifically granted to the partial guardian or partial conservator by the court.

(4)  If it is determined that the respondent has a developmental disability and is unable to manage financial resources or meet essential requirements for physical health or safety even with the appointment of a partial guardian or partial conservator, the court may appoint a total guardian and/or total conservator.

(5)  In the event that more than one (1) person seeks to be appointed guardian and/or conservator, the court shall appoint the person or persons most capable of serving on behalf of the respondent; the court shall not customarily or ordinarily appoint the department or any other organization or individual, public or private, that is or is likely to be providing services to the respondent. If an appointment of a guardian is made by will pursuant to section 15-5-301, Idaho Code, such appointment shall be entitled to preference as the guardian under this chapter, if the person so appointed by will is capable of serving on behalf of the respondent and the court finds that it is not in the best interests of the respondent to appoint a different person as guardian.

(6)  Subject to the limitations of the provisions of subsection (7) of this section, guardians or conservators may have any of the duties and powers as provided in sections 15-5-312(1)(a) through (d), 15-5-424 and 15-5-425, Idaho Code, and as specified in the order. A guardian shall be required to report to the court at least annually on the status of the respondent. A conservator shall be required to file with the court an inventory within ninety (90) days of appointment, an accounting at least annually, and a final accounting at the termination of the appointment of the conservator. All required inventories, accountings and reports shall be under oath or affirmation and shall comply with the Idaho supreme court rules. The court may require a conservator to submit to a physical check of the estate in his control, to be made in any manner the court may specify.

(7)   Except as otherwise provided in subsection (8) of this section, a guardian appointed under this chapter shall have no authority to refuse or withhold consent for medically necessary treatment when the effect of withholding such treatment would seriously endanger the life or health and well-being of the respondent. To withhold or attempt to withhold consent for such treatment may be cause for removal of the guardian. Except as otherwise provided in subsection (8) of this section, no health care provider or caregiver shall, based on such guardian’s direction or refusal to consent to care, withhold or withdraw such treatment for a respondent. If the health care provider cannot obtain valid consent for such medically necessary treatment from the guardian, the health care provider or caregiver shall provide the medically necessary treatment as authorized by section 39-4504(1)(i), Idaho Code.

(8)  A guardian appointed under this chapter may consent to withholding or withdrawing treatment other than appropriate nutrition or hydration to a respondent, and a health care provider may withhold or withdraw such treatment in reliance upon such consent, when in the treating LIP’s reasonable medical judgment any of the following circumstances apply:

(a)   The attending LIP and at least one (1) other LIP certifies that the respondent is chronically and irreversibly comatose;

(b)   The treatment would merely prolong dying, would not be effective in ameliorating or correcting all of the respondent’s life-threatening conditions, or would otherwise be futile in terms of the survival of the respondent; or

(c)  The treatment would be virtually futile in terms of the survival of the respondent and would be inhumane under such circumstances.

(9)  Any person who has information that medically necessary treatment of a respondent has been withheld or withdrawn in violation of this section may report such information to adult protective services or to the Idaho protection and advocacy system for people with developmental disabilities, which shall have the authority to investigate the report and in appropriate cases to seek a court order to ensure that medically necessary treatment is provided.

If adult protective services or the protection and advocacy system determines that withholding of medical treatment violates the provisions of this section, they may petition the court for an ex parte order to provide or continue the medical treatment in question. If the court finds, based on affidavits or other evidence, that there is probable cause to believe that the withholding of medical treatment in a particular case violates the provisions of this section, and that the life or health of the patient is endangered thereby, the court shall issue an ex parte order to continue or to provide the treatment until such time as the court can hear evidence from the parties involved. Petitions for court orders under this section shall be expedited by the courts and heard as soon as possible. No bond shall be required of a petitioner under this section.

(10) No partial or total guardian or partial or total conservator appointed under the provisions of this section may without specific approval of the court in a proceeding separate from that in which such guardian or conservator was appointed:

(a)  Consent to medical or surgical treatment the effect of which permanently prohibits the conception of children by the respondent unless the treatment or procedures are necessary to protect the physical health of the respondent and would be prescribed for a person who does not have a developmental disability;

(b)  Consent to experimental surgery, procedures or medications; or

(c)  Delegate the powers granted by the order.

(11)  Nothing in this section shall affect the rights of a competent patient or surrogate decision-maker to withhold or withdraw treatment pursuant to section 39-4514, Idaho Code, unless the patient is a respondent as defined in section 66-402, Idaho Code.

History:

[66-405, added 1982, ch. 59, sec. 7, p. 100; am. 1999, ch. 293, sec. 2, p. 734; am. 2005, ch. 120, sec. 8, p. 394; am. 2007, ch. 196, sec. 19, p. 594; am. 2008, ch. 74, sec. 5, p. 198; am. 2009, ch. 86, sec. 3, p. 238; am. 2012, ch. 302, sec. 15, p. 838; am. 2013, ch. 262, sec. 6, p. 645; am. 2014, ch. 164, sec. 7, p. 465; am. 2017, ch. 273, sec. 6, p. 718.]