Enactment of UGCOPA weakens appointment of cousnel for children

In 2026, Idaho enacted the SB 1240, the Uniform Guardianship, Conservatorship, and Other Protective Arrangements (UGCOPA) Act (effective Jan. 1, 2027), making several changes to appointment provisions related to children in guardianship and conservatorship cases.

Guardianship

Establishment

Prior law required the court to appoint counsel if the court determined that the minor “possesse[d] sufficient maturity to direct the attorney”.  In the event that the court were to find a child not sufficiently mature to direct counsel, the court was required to appoint a guardian ad litem.  In either case though, the court was permitted to decline appointment of counsel or a GAL if it made a finding in writing that “such appointment [was] not necessary to serve the best interests of the minor or if the Idaho department of health and welfare ha[d] legal custody of the child.” Idaho Code § 15-5-207(7).

The amended law also provides for discretionary appointment in certain situations.  The court may appoint counsel if:

(a) Requested by the minor and the minor is twelve (12) years of age or older;
(b) Recommended by the guardian ad litem; or
(c) The court determines the minor needs representation.

15-5-204(1); but see Idaho Code § 15-5-208, which is silent about appointment of counsel for children in emergency guardianship proceedings.  The law under the UGCOPA Act specifies that the child’s attorney must represent the child’s wishes “to the extent [that the wishes are] reasonable ascertainable.” 15-5-204(2).  If the court does choose to appoint an attorney in addition to the guardian ad litem, “one person may not fill both of those roles.” In re Doe, 425 P.3d 285, 288 (Idaho 2018).

We classify the appointment provision as both discretionary and qualified, because certain things must be true to “trigger” the discretionary appointment provision.

Removal, termination and modification

Under prior law, appointment of counsel for children in guardianship resignation, removal, modification or termination matters was discretionary. Idaho Code § 15-5-212(3).  Current law is silent about appointment of counsel in removal and termination matters. See Idaho Code § 15-5-211.

Conservatorship

Establishment

Prior law required the court to appoint an attorney ad litem (best interests attorney) for a child if “the court determine[d] that the interests of the minor [were or might be] inadequately represented”. Idaho Code § 15-5-407(a).  The amended law provides that the court may appoint counsel for unrepresented minor respondents, regardless of ability to pay, Idaho Code § 15-5-406(1), and specifies that the attorney is client-directed as opposed to best interests, required to represent the respondent’s wishes to the extent reasonable ascertainable. Id. at (2).  Appointment of counsel in emergency conservatorship matters is discretionary also. § 15-5-413.

Despite the language being changed from “shall” to “may”, we consider both the past and current right to counsel for children in conservatorship establishment matters to be discretionary.

Removal, termination and modification

Prior code was silent about appointment in modification matters, but permitted appointment of an attorney ad litem in termination cases where the protected person sought the termination. Idaho Code § 15-5-43.  Current law is silent about appointment in removal and modification cases. See § 15-5-413.