Guardianship Laws

Adult Guardianship Statute: 

Idaho Code Ann. 15-5-101 to -107; 15-5-301 to -603

Right to Counsel in Statute: Initial Guardianship Proceedings: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Right to Counsel Statututory Citation: 

Idaho Code §§ 15-5-303(b), -307(c).

Right to Counsel Definition in Statute: 

Upon the filing of a petition for guardianship “unless the allegedly incapacitated person has counsel of his own choice, it shall appoint an attorney to represent him in the proceeding, who shall have the powers and duties of a guardian ad litem.” Idaho Code § 15-5-303(b). At the initial guardianship hearing, “the person alleged to be incapacitated….is entitled to be represented by counsel.” Idaho Code § 15-5-303(c). “Before removing a guardian, accepting the resignation of a guardian, or ordering the ward’s incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian, and to the place where the ward resides or is detained, to observe conditions and report in writing to the court." Idaho Code § 15-5-307(c)

Advocacy Role of Counsel Defined in Statute: 
Advocacy Role of Counsel Definition in Statute: 

Appointed attorneys have the powers and duties of a guard ad litem. Responsibilities include, e.g., (a) to conduct an independent factual investigation of the circumstances of the ward; (b) to file with the court a written report stating the results of the investigation and recommendations; (c) "to act as an advocate for the ward for whom appointed at each stage of the proceedings . . . and to be charged with the general representation of the ward." Idaho Code § 15-5-315.

Professional Rules &/or Ethics Opinions: 

Identical to Model Rule 1.14. “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished...the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Idaho Rules of Prof’l Conduct Rule 1.14(a). “A client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting client's own well-being.” Id. at Comment 1. “The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.” Id. at Comment 2. “[T]he lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf.” Id. at Comment 3. “If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.” Id. at Comment 4. No relevant ethics opinions.

Other Important Info: 

In initial guardianship proceedings, the person alleged to be incapacitated “is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon his condition. He is entitled to be represented by counsel, to present evidence and subpoena witnesses and documents, to examine witnesses, including the court-appointed physician, mental health professional, or other person qualified to evaluate the alleged impairment, as well as the court-appointed visitor, and otherwise participate in the hearing. The hearing may be a closed hearing upon the request of the person alleged to be incapacitated or his counsel and a showing of good cause.” Idaho Code § 15-5-303(c). “The guardian ad litem shall have the right and power to file pleadings, motions, memoranda and briefs on behalf of the ward, and to have all of the rights of the ward, whether conferred by statute, rule of court, or otherwise.” Idaho Code § 15-5-316(2). The guardian ad litem must conduct an independent investigation of the case and report its findings to the court. Idaho Code § 15-5-315(1)-(2). Additionally, the guardian ad litem must “act as an advocate for the ward;…participate fully in the proceedings to the degree necessary to adequately represent the ward;…facilitate and negotiate to ensure that the court, the department of health and welfare, if applicable, and the ward’s attorney, if any, each fulfill their obligations to the ward in a timely fashion;…monitor the circumstances of a ward…to assure that the terms of the court’s orders are being fulfilled and remain in the best interests of the ward;…meet any parent or other person having legal or physical custody of the ward, record the concerns of the parent, and report them to the court or, if no such meeting occurs, file an affidavit stating why no such meeting occurred;…maintain all information regarding the case confidential;…determine whether existing powers, trusts, and other measures may adequately give the ward the legal protection otherwise provided by a guardian, or whether such powers, trusts or other measures could be reasonably created and, if so, to recommend that either no guardianship be granted or that only a suitably limited guardianship be granted;…exercise such other and further duties as may be expressly imposed by court order.” Idaho Code § 15-5-315(3)-(9).

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