Guardianship Overview and Selection
Generally, there are two types of guardianship: (1) Guardianship of Incapacitated Persons, generally established under Idaho Code §§ 15-5-301 - 15-5-316 and (2) Guardianship of a Minor, generally established under Idaho Code 15-5-201 - 15-5-213. In addition, Idaho §§ 15-5-401 - 15-5-435 provides for the protection of property of persons under disability and for minors.
With regard to a guardianship for incapacitated persons, a guardian is generally appointed for an impaired person; someone who has suffered, is suffering, or is likely to suffer, substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, health care, or safety, or an inability to manage his or her property or financial affairs.
In such cases the individual under the guardian’s care is known as a ward. The guardian is now authorized in a legal sense when making life choices for the ward under their care. Guardianship is considered a last resort and should only be used when absolutely needed.
The selection of a guardian is of utmost importance. It is preferable that guardians have a close connection to their ward. Under Idaho Code § 15-5-311, those preferred by the court are those “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.”
The guardian is chosen with explicit intent to represent the best interest of their ward. When selecting a guardian they are reviewed, based on several criteria: their general honesty, personal history, physical capacity and anything relevant to the case are taken under consideration. Of special note is that a potential guardian may not be disqualified solely on basis of finances or lack of educational certifications.
Powers and Duties of a Guardian
Guardians in general have two types of classification. Guardianship of the person means they will have power over where the ward lives and their continuing health care treatments. Estat” often called conservators, make and handle the finances and property of their ward. It is not uncommon for someone to hold a guardianship and conservatorship simultaneously. This is due to the need to have all decisions taken over for the incapacitated ward.
The powers of a guardian are precisely defined and only based on necessity. The powers are mainly focused on actions that the ward cannot do on their own. In terms of powers and duties a guardian may perform the following: they oversee and maintain the care for their ward; they make sure that in the process of care that the educational and medical services are of a high enough standard; they report to the court status of the ward’s finical state including monetary and property. These are just some of the duties a guardian may perform.
Guardians are also responsible for periodic updates to be submitted to the court concerning health. These updates detail the ward’s current health and living conditions. They describe current day-to-day living concerns of their ward. Any documented mental and physical health changes based upon official medical examination and documentation is reported. They also list services and treatments currently being administered. The court will use all the above listed information to review and change the ward’s status and the duties of the guardian as needed.
Guardian Removal or Replacement
Guardians can be removed if they are deemed no longer necessary. If a ward recovers to the point where aid is no longer needed the guardian can be removed. Guardians are also removed if their care is considered inadequate. If a court deems a guardian negligent this may be grounds for removal. Negligence covers several different areas. This can include theft or other monetary malfeasance. This includes both money and property use for the guardian’s personal gain. Direct ignoring of a court’s orders is also considered negligent. Upon court removal of a guardian a replacement needs to be appointed.
All cases turn on specific facts, as such, it is highly advisable that you consult with an experienced guardianship attorney if you have questions about establishing a guardianship or conservatorship for an incapacitated person, minor, or disabled individual.
Forms
Frequently Asked Questions
Prospective Guardian & Conservator Online Training Module
The online training module was developed by the Idaho Supreme Court Guardianship/Conservatorship Committee with the intent to educate prospective Guardians and Conservators about their roles and responsibilities. This course is ordered for all petitioners seeking appointment as a Guardian and/or Conservator through the Idaho Court system. It is also available to those who are not seeking a certificate and simply wish to access and take the course for informational purposes
Guardianship Course
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