2005 Idaho Code - 66-322 — APPOINTMENT OF GUARDIAN FOR INDIVIDUALS LACKING CAPACITY TO MAKE INFORMED DECISIONS ABOUT TREATMENT -- JUDICIAL PROCEDURE

                                  TITLE  66
                        STATE CHARITABLE INSTITUTIONS
                                  CHAPTER 3
                       HOSPITALIZATION OF MENTALLY ILL
    66-322.  APPOINTMENT OF GUARDIAN FOR INDIVIDUALS LACKING CAPACITY TO MAKE
INFORMED DECISIONS ABOUT TREATMENT -- JUDICIAL PROCEDURE. (a) Proceedings for
the appointment of a guardian of a mentally ill person may be commenced by the
filing of a written petition with a court of competent jurisdiction by a
friend, relative, spouse or guardian of the proposed patient, by a licensed
physician, licensed clinical psychologist, prosecuting attorney, or other
public official of a municipality, county or of the state of Idaho, or by the
director of any facility in which such patient may be.
    (b)  The petition shall state the name and last known address of the
proposed patient; the name and address of either the spouse, next of kin or
friend of the proposed patient; whether a guardian of the proposed patient has
been previously appointed under the laws of this or any other state and, if
so, the name and address of the guardian and the circumstances of such
appointment; and a precise statement showing that the proposed patient is
mentally ill, that treatment is available for such illness, and that the
proposed patient lacks capacity to make informed decisions about treatment.
    (c)  Any such petition shall be accompanied by a certificate of a licensed
physician or licensed clinical psychologist stating that the physician or
psychologist has personally examined the proposed patient within the last
fourteen (14) days and is of the opinion: (i) that the proposed patient is
mentally ill, (ii) that in the absence of treatment the immediate prognosis is
for major distress of the proposed patient which will result in serious mental
or physical deterioration of the proposed patient, (iii) that treatment is
available which is likely to avoid serious mental or physical deterioration of
the proposed patient, and (iv) that the proposed patient lacks capacity to
make informed decisions about treatment; or by a written statement by the
physician or psychologist that the proposed patient has refused to submit to
an examination.
    (d)  Upon receipt of a petition, the court shall within forty-eight (48)
hours appoint another licensed physician or licensed clinical psychologist to
make a personal examination of the proposed patient, or if the proposed
patient has not been examined, the court shall appoint two (2) licensed
physicians or licensed clinical psychologists to make individual personal
examinations of the proposed patient and may order the proposed patient to
submit to an immediate examination. Within seventy-two (72) hours, the
physician or psychologist shall file with the court certificates described in
subparagraph (c) above, if necessary.
    (e)  Upon receipt of such petition and certificates, the court shall
appoint a time and place for hearing not more than seven (7) days from receipt
of such certificates and thereupon give written notice to the proposed
patient. The notice shall include a copy of the petition and certificates and
notice of the proposed patient's right to be represented by an attorney, or if
indigent, to be represented by a court-appointed attorney. Notice of the time
and place of the hearing shall also be given to the petitioner.
    (f)  An 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.
    (g)  The hearing shall be held at a facility, at the home of the proposed
patient, or at any other suitable place not likely to have a harmful effect on
the proposed patient's physical or mental health.
    (h)  The proposed patient and the petitioner shall be afforded an
opportunity to appear at the hearing, to testify, and to present and
cross-examine witnesses. At the hearing, any existing provision of law
prohibiting the disclosure of confidential communications between the
examining physician or psychologist and the proposed patient shall not apply
and the physicians or psychologists who examined the proposed patient shall be
competent witnesses to testify as to the proposed patient's condition. The
proposed patient shall be required to be present at the hearing, and be free
from drugs likely to impair the proposed patient's ability to communicate with
counsel or understand the proceedings, unless the right to be present or free
from drugs is knowingly and voluntarily waived by the patient or unless the
presence of the patient at the hearing would unduly disrupt the judicial
proceedings. A record of the proceedings shall be made as for other civil
hearings. The hearing shall be conducted in as informal a manner as may be
consistent with orderly procedure and the rules of evidence.
    (i)  The court shall appoint a person other than the treating professional
to act in the proposed patient's best interest with authority to consent to
treatment, if, upon completion of the hearing and consideration of the record,
the court finds by clear and convincing evidence that:
    (1)  The proposed patient has a severe and reliably diagnosable mental
    illness;
    (2)  Without treatment, the immediate prognosis is for major distress
    resulting in serious mental or physical deterioration of the proposed
    patient;
    (3)  Treatment is available for such illness;
    (4)  The proposed patient lacks capacity to make informed decisions about
    treatment; and
    (5)  The relative risks and benefits of treatment or nontreatment are such
    that a reasonable person would consent to treatment.
    The court shall consider appointing persons to give consent in the
following priority: the proposed patient's spouse, next of kin, friend or if
the proposed patient's spouse, next of kin or friend are unable or unwilling,
another appropriate person not associated with the facility where the person
is being, or shall be treated.
    (j)  The appointed person shall have authority to consent to treatment,
including treatment at a facility. Upon approval of the court, the appointed
person may pay the costs of treatment from the patient's money and tangible
property deliverable to or received by the patient during the period of the
appointed person's authority, and may apply for any benefits to which the
patient is entitled. In the exercise of his powers, the appointed person is to
act as a fiduciary and shall observe the standards of care applicable to
trustees as described by section 15-7-302, Idaho Code. The appointment shall
continue for a period of seven (7) weeks or until the court determines that
the patient no longer lacks capacity to make informed decisions about
treatment, whichever is shorter.
    (k)  Upon petition of the appointed person, authority to consent may be
continued for an additional seven (7) week period, if the court again enters
the findings required by subparagraph (i) above. The petition for continued
authority shall be accompanied by the certificate of the treating professional
meeting the requirements of subparagraph (c) above. The petition for continued
authority and physician's certificate shall be served upon the patient and the
patient's attorney. If the proposed patient objects to the continued
authority, the court shall conduct a hearing, following notice of the time and
place of such hearing to the petitioner, the proposed patient and the proposed
patient's attorney.
    (l)  Proceedings for appointment of a person with authority to consent
under this section may be consolidated with proceedings for the involuntary
care of the proposed patient under section 66-329, Idaho Code, provided,
however, that appointment of a person with authority to consent under this
section shall terminate the proceedings for the involuntary care under section
66-329, Idaho Code.
    (m)  No more than two (2) petitions with authority to consent shall be
granted under subsection (i) of this section within any twelve (12) month
period, provided that other proceedings under this chapter or the Uniform
Probate Code shall be permitted.
    (n)  The person with authority to consent appointed pursuant to this
section shall not be personally responsible for the cost of care or treatment
rendered the mentally ill individual, simply by reason of the authority
granted by this section.