Enacted UGCOPA Act clarifies guardianship counsel is client-directed, but weakens protections in conservatorships

Generally

There is a right to counsel in various types of guardianship situations.  Under prior law, the attorney would often serve in a guardian ad litem role, representing the client’s best interests.  However, in 2026, the Idaho legislature enacted SB 1240, the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (effective Jan. 1, 2027), which specifies that counsel for adults is client-directed and made various other changes as well.  The change did weaken appointment for conservatorship cases though.

Guardianship

Establishment

Under Idaho Code Ann. § 15-5-305(1), the court shall appoint counsel for unrepresented adult respondents in guardianship matters regardless of ability to pay.  Prior law specified that the appointed attorney served in a ad litem (best interest) role, but the law as amended in 2026 specifies that representation is client-directed.  The provision goes on to specify that appointed counsel must “[m]ake reasonable efforts to ascertain the respondent’s wishes” and “[a]dvocate for the respondent’s wishes to the extent reasonably ascertainable”. Id. at (2).  The right to counsel attaches upon the filing of a petition for appointment of an emergency guardian as well. Idaho Code Ann. § 15-5-312(3).

Idaho’s Uniform Probate Code section titled “Protection of Persons Under Disability and Their Property – Guardians of Incapacitated Persons,” once a petition for a hearing on incapacity is filed and a date for hearing is set, and “unless the allegedly incapacitated person has counsel of his own choice, [the court] shall appoint an attorney to represent him in the proceeding, who shall have the powers and duties of a guardian ad litem.” Idaho Code Ann. § 15-5-303(b).  Respondents in guardianship proceedings filed based upon the person’s developmental disability also have the right to counsel. See Idaho Code Ann. § 66-404(3) (requiring appointment of counsel upon filing of petition for guardianship of developmentally disabled person).

Removal, Termination and Modification

The prior statute was unclear about whether a right to counsel attached for removal and termination matters, specifying only that “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…” See Idaho Code Ann. § 15-5-307(c).  It was unclear whether the “following the same procedures” language applied only to the visitor’s observations or to the whole process, including appointment of counsel.

Current law provides a qualified right to counsel in removal, termination, and modification matters, specifying that where the protected person seeks the removal, termination, or modification, the court shall appoint counsel for them if they are unrepresented. See Idaho Code Ann. § 15-5-318(4) (as to removal and appointment of successor) and § 15-5-319(7) (as to termination and modification).

Conservatorship

Establishment

Under prior law, appointment of an attorney ad litem for adults in conservatorship establishment matters was discretionary, see Idaho Code Ann. § 15-5-407(b), unless the conservatorship was sought due to developmental disability, in which case the court was required to appoint counsel. See Idaho Code Ann. § 66-404(3).  Current law changes the representation model to client-directed (as opposed to best interest) but makes appointment discretionary for all unrepresented adult respondents subject to a conservatorship petition, whether plenary, Idaho Code Ann. § 15-5-406(1)-(2), or on a temporary, emergency basis, Idaho Code Ann. § 15-5-413(3).

Removal, Termination and Modification

Prior law provided for discretionary appointment in conservatorship termination matters, Idaho Code Ann. § 15-5-430, but was silent about appointment in matters related to removal or modification. See § 15-5-416.  The code covering conservatorships sought due to developmental disability also omitted any language related to appointment of counsel in removal, termination, or modification matters. See Idaho Code Ann. § 66-401 et seq.

Current law is completely silent as to whether counsel may be appointed in this cases. See § 15-5-415 (referring to post-appointment petitions, which may request things such as removal or modification).

Medical Treatment Context

For persons who allegedly lack the capacity to make informed decisions about treatment due to their mental health, the Idaho Code provides a right to counsel to indigent respondents that attaches upon the filing of a petition for the appointment of a guardian who will handle treatment decisions. Idaho Code Ann. § 66-322(e).  The statute also establishes that “[a]n opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither the proposed patient nor others provide counsel, the court shall appoint counsel in accordance with chapter 8, title 19, Idaho Code.” Idaho Code Ann. § 66-322(f).