Frequently asked questions about Guardianship and Conservatorship
What is guardianship?
A guardian is a person appointed by the court to help someone else who is unable to make important life decisions. Guardians are tasked with helping the person make decisions about where and how they live, what care they receive, and who is involved in their care, but are not given authority over financial decisions.
How many types of guardianship are there in Idaho?
In Idaho there are four types of court appointed guardianships.
1. Temporary Guardianship, also known as emergency guardianship, can be granted by the court when needed to protect health, safety, or welfare of a person until a guardianship petition can be heard by the court. The Idaho statutes that explain this type of guardianship can be found in Idaho Code § 15-5-207(5) and Idaho Code § 15-5-310, and Idaho Code § 66-404A.
2. Minor Guardianships are granted when a person under the age of 18 does not have a parent who is able to care for them. This is frequently due to the death of the parents, but may also be granted when the parents are incarcerated or in some other way unable to care for their child. The Idaho statute that explains this type of guardianship can be found in Idaho Code § 15-5-201 et seq.
3. Developmental Disability Guardianship may be granted for adults who have a chronic disability before the age of 22.
There are specific criteria that must be met for a person to qualify for guardianship in this area, specifically:
- The chronic disability must be attributed to an impairment, such as intellectual disability, cerebral palsy, epilepsy, autism, or other condition found to be closely related to or similar to one of these impairments that requires similar treatment or services, or is attributable to dyslexia resulting from such impairments; and
- Results in substantial functional limitations in 3 or more of the following areas of major life activity:
- receptive and expressive language,
- capacity for independent living, or
- economic self-sufficiency; and
- Reflects the need for a combination and sequence of special, interdisciplinary or generic care, treatment or other services that are of lifelong or extended duration and individually planned and coordinated.
4. Guardianship for Incapacity is granted for adults who are considered impaired to the extent they lack sufficient understanding or capacity to make or communicate responsible decisions. The Idaho statutes that defines incapacity can be found in Idaho Code § 15-5-101. The Idaho statutes that explains this type of guardianship can be found in Idaho Code § 15-5-301 et seq.
What is conservatorship?
A conservator is a person appointed by the court to help someone who is unable to make financial decisions. Conservatorship is different than guardianship because it only gives the conservator the authority to manage assets, not make decisions about how the person lives, what care they receive, and who is involved in their care.
It is important to know that a conservator for a minor has the same duties and powers as a guardian.
Conservatorship can be granted at the same time as guardianship, or can be done as a separate process. Not all people who need a guardian also need a conservator. This is especially true if the person has no income beyond government benefits.
The Idaho statutes that explain conservatorship for incapacitated individuals can be found in Idaho Code § 15-5-401 et seq. The Idaho statute specific to individuals with developmental disabilities can be found at Idaho Code § 66-404. The specific statutes setting out the conservators duties and powers can be found in Idaho Code § 15-5-424 and Idaho Code § 15-5-425.
How do I get guardianship or conservatorship in Idaho?
To be named a guardian and/or a conservator, a person must go through a court process to obtain an order from a judge. Appropriate documentations are submitted to the court to demonstrate a need, and in some cases, a court appointed committee must interview the person being considered for guardianship/conservatorship as well as the proposed guardian/conservator. This process can take several months.
Temporary guardianship can be completed in less time than other types of guardianship, but is completed as part of the regular guardianship court process, so requires much of the same documentation to be submitted.
What are my responsibilities if I am a guardian?
In general, a guardian has the same powers and responsibilities as a parent, except they are not legally obligated to provide for the person with their own funds, and they are not liable for the actions of that person.
Guardians are allowed to set up living arrangements in or out of the state of Idaho.
Guardians and conservators are required to file annual reports with the court. (See more information below.)
You can read more about the duties of a guardian in Idaho Code § 15-5-312.
What court reports are required from the guardian and/or conservator?
- Proposed Care Plan (We usually file this report for our clients before the guardianship hearing.)
- Annual Status Report (for an Adult or Minor) (Required annually, within 30 days after the anniversary of being appointed as guardian.)
- Inventory and Financial Plan (Also called the 90 Day Inventory, this document is required within 90 days after being appointed as a conservator.)
- Annual Accounting (You can use either the regular or small estate form as appropriate.) (Required annually, within 30 days after the anniversary of being appointed as conservator.)
If you need a copy of the forms you are required to fill out, you can find them on the Court Assistance Office of the State of Idaho Judicial Branch website. You can find a more detailed description of each form on the Guardianships & Conservatorships website.
If you need help filling out the required forms, each Judicial District has a Guardianship and Conservatorship Monitoring Coordinator that can help.