Right to Counsel

Guardianship Establishment

Idaho Code § 15-5-207(7) states in regards to establishment of a guardianship for a minor:

The court shall appoint an attorney to represent the minor if the court determines that the minor possesses sufficient maturity to direct the attorney. If the court finds that the minor is not mature enough to direct an attorney, the court shall appoint a guardian ad litem for the minor. The court may decline to appoint an attorney or guardian ad litem if it finds in writing that such appointment is not necessary to serve the best interests of the minor or if the Idaho department of health and welfare has legal custody of the child.

The Supreme Court of Idaho has provided clarification about both determinations of the minor's maturity and dual roles.  In In re Doe, the Supreme Court of Idaho concluded that a trial court erred by appointing an attorney to serve as both an attorney and GAL. 425 P.3d 285 (Idaho 2018).  The court pointed out that the statute had been amended in 2005 to remove the reference of the appointment of an attorney to serve as guardian ad litem, as the legislature had recognized the difference between the two roles.  It concluded, “[T]he court has three options: it can appoint an attorney, it can appoint a guardian ad litem, or both.  However, if the court chooses to appoint an attorney and a guardian ad litem, one person may not fill both of those roles.” Doe, 425 P.3d at 288.  The court also held that the trial court had erred by failing to hold a hearing to determine whether the child was mature enough to have an attorney appointed, and stated:

In cases where older children are involved, we take guidance from the Legislature's recent amendment to Idaho Code section 16-1614 which mandates an attorney be appointed for children ‘twelve (12) years of age or older.’ See I.C. § 16-1614. While this is a different statute with different circumstances at play, the procedural fairness provided in that statutory scheme is relevant in all proceedings involving children, including petitions to determine guardianship.

Id. at 289.

Guardianship Removal, Modification or Termination

Regarding guardianship resignation, removal, modification or termination proceedings, appointment is discretionary per § 15-5-212(3):  If a court determines “that the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen (14) or more years of age.” 

Conservatorship Establishment 

Finally, Idaho Code § 15-5-407(a) mirrors this language for conservatorship proceedings: “If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it must appoint an attorney to represent the minor, giving consideration to the choice of the minor if fourteen (14) years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem.” 

When appointing a temporary conservator, the minor is entitiled to a guardian ad litem. Idaho Code § 15-5-407A ("If the person to be protected is a minor, the court shall appoint a guardian ad litem for said minor at the same time the temporary appointment of a conservator is made.").

Conservatorship Removal, Modification, or Termination

Idaho Code § 15-5-430 provides: 

The protected person, his personal representative, the conservator, or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedure as in an original proceeding for a protective order.

(emphasis added).  Accordingly, a minor in a conservatorship termination matter is presumably entitled to the same rights as apply in establishment proceedings, namely, an attorney ad litem if "the court determines that the interests of the minor are or may be inadequately represented." See Idaho Code § 15-5-407(a).