Idaho Legal Aid Services provides comprehensive information and resources to assist individuals in navigating the probate process. This includes guidance on managing property and personal affairs, understanding powers of attorney, and planning for end-of-life decisions.
The available materials aim to empower Idaho residents with the knowledge needed to make informed legal choices regarding estate planning and probate matters.
Understanding Probate in Idaho
There are many decisions to be made every day in life, even late in life. This is called lifetime planning. Some of these decisions are financial, while others are personal, and still others are health-related.
Financial decisions might include whether to have a joint bank account, how to pay bills and arrange finances, and how to draft and maintain important legal papers.
Personal decisions might include making funeral plans or burial arrangements, choosing where to live, and fulfilling spiritual or religious preferences.
Health decisions could include consenting to or refusing treatment, deciding on a course of care in the event of terminal illness, and appointing someone to make health care decisions for you if you become incapacitated.
Each of us has the right to make our own choices based on our values and desires, even if others disagree. Courts have almost always followed the express wishes of competent adults. For that reason, it is important to state your desires in writing—about health decisions, financial decisions, and personal decisions—while you are clearly capable of expressing those wishes.
It is also important to plan now for a possible period of your life when physical, medical, or mental conditions may require another person to assist you with activities of daily living. When you begin planning for the future, consider questions such as:
Who should you authorize to access your bank accounts or other financial arrangements if you are not able to take care of them yourself?
Who should you give authority to make health care decisions on your behalf if you are unable to do so?
At what point in your life should you authorize someone to take over your financial and/or health care decision-making?
Ideally, we all should make lifetime plans when we are healthy and do not need someone to make decisions for us. Practically speaking, many people do not begin making lifetime plans at an early age. The objective of advance planning is to maintain control over your life in the event you become impaired and can no longer manage things the way you would like. It is important to have someone ready and available to step into your shoes should the time come.
Shared Bank Accounts: Most financial institutions offer options that allow more than one person to access funds in a bank account. The most common type is a joint bank account, which allows two or more people to deposit and withdraw money. The people named on the account do not need permission from each other to use the account. If one account holder dies, the funds in the account typically belong to the other account holder.
Before choosing this arrangement, you must fully trust the person (or people) you add to the account. There are disadvantages to joint ownership. For example, the joint account holder could withdraw all of the money without your knowledge or permission, and you may not be able to recover it.
Another disadvantage is that joint accounts can negatively affect eligibility for certain public benefits, such as Medicaid or SSI. Programs like Medicaid may treat the entire balance of a joint account as available to the applicant, which can result in a denial because it appears you have more resources than allowed. If a significant amount of money is involved, it is best to consult an attorney before establishing a joint bank account. For more information, see “Transfers of Property and Estate Planning.”
Power of Attorney: A durable power of attorney is a document in which one person (the principal) gives legal authority to another person (the agent, also called the attorney-in-fact) to act on the principal’s behalf. It is a straightforward way to appoint someone to manage some or all of your affairs.
A power of attorney can be very broad or very limited. A limited power of attorney might authorize a specific act, such as signing a deed to transfer a particular piece of property. A broad power of attorney can authorize management of a wide range of financial and personal affairs.
A power of attorney can be created only when you have the mental ability to understand what the document does and you are acting of your own free will. It is usually best to have a durable power of attorney rather than a regular power of attorney. A regular power of attorney typically becomes ineffective if you lose capacity. A durable power of attorney, by contrast, remains effective even if you become incapacitated—often exactly when you need it most.
A power of attorney can take effect immediately upon signing, or it can “spring” into effect later. A common springing durable power of attorney becomes effective when you are determined to be incompetent or incapacitated. In those cases, the document often requires a physician’s letter confirming incapacity, which is then attached to the power of attorney.
No one else can create a power of attorney for you or sign one for you. If you never execute a durable power of attorney and later become incapacitated, this option may be unavailable and other legal steps—such as guardianship and/or conservatorship—may be necessary.
When creating a durable power of attorney, it is crucial to choose someone who is extremely trustworthy and willing to take on the responsibility of managing your affairs. In Idaho, a durable power of attorney may not always need to be notarized, but if it is used in connection with a real estate transaction it generally must be notarized (and recorded). For that reason, it is best to sign a power of attorney in front of a notary.
A carefully drafted durable power of attorney can help ensure bills are paid, affairs are handled, and your general lifestyle is not disrupted more than necessary if you can no longer manage things yourself. However, there is also risk: there is no formal oversight mechanism in Idaho that routinely monitors an agent’s actions. If you do not have someone you fully trust to act as your agent, you should not use this tool.
Some people also include specific clauses in a durable power of attorney, such as a gifting clause (often relevant to Medicaid and spousal impoverishment planning) and language stating the power of attorney is not affected by lapse of time.
Important Points About a Power of Attorney: The person who gives a power of attorney is the principal. The person appointed to act is the attorney-in-fact (or agent).
It is best to sign a durable power of attorney before a notary. If it is not notarized, it cannot be recorded; and if it is not recorded, it cannot be used to deal with real property (see “Transfers of Property”).
Giving someone power of attorney does not take away your right to continue handling your own affairs.
After signing, the original power of attorney should be given to the attorney-in-fact. The attorney-in-fact may provide copies to others, but should keep the original. The principal should also keep a copy.
The attorney-in-fact may use the power of attorney only for the principal’s benefit, not for the attorney-in-fact’s own benefit.
When signing documents for the principal, the attorney-in-fact should sign in a format that clearly shows they are signing on the principal’s behalf. Example: “Mary Smith by John Smith as attorney-in-fact for Mary Smith.”
A power of attorney may be revoked by the principal at any time by giving written notice to the attorney-in-fact. If the power of attorney was recorded, the revocation must also be recorded.
A durable power of attorney remains in effect (unless it states an earlier expiration) until it is revoked or the principal dies. A typical durable clause is: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal.”
The attorney-in-fact is not personally financially responsible for the principal’s debts.
A power of attorney ends when the principal dies.
Durable Power of Attorney (Health Care): A durable power of attorney for health care is similar to a durable power of attorney, but it is limited to health care decisions. It generally becomes effective only when the principal is unable to communicate rationally. The principal must be of sound mind (or in a lucid interval) to sign it.
This document allows you to appoint someone you trust to make health care decisions for you and to provide guidance for those decisions. It can be signed in front of a notary and/or two witnesses. If the document is witnessed, the witness generally cannot be:
the person you designate as your agent or alternate agent;
a health care provider;
an employee of a health care provider;
the operator of a community care facility; or
an employee of an operator of a community care facility.
One major advantage is that it helps ensure your wishes are carried out and reduces stress and conflict for family members and loved ones. It is important to choose an agent who is willing and able to carry out your wishes, and to make sure they understand your values and preferences—ideally in writing.
After signing, a copy should be provided to your health care providers and included in your medical record. This document is often done at the same time as a living will so the agent can implement the wishes you have expressed.
You may revoke your durable power of attorney for health care and/or execute a new one at any time, as long as you are competent.
Living Will: In Idaho, there is a particular type of health care decision that the law requires you to put in writing while you are of sound mind: a living will. This document addresses your wishes about life-prolonging medical care if you have an incurable injury, disease, illness, or condition (certified by two physicians) where artificial life support would only prolong life when death is imminent, or if you have been diagnosed as being in a persistent vegetative state.
In general, a living will allows you to choose among options such as:
receiving all medical treatment, including artificial life support;
refusing artificial life support but continuing to receive food and water; or
refusing life-prolonging measures and allowing nature to take its course.
In all cases, you must be kept comfortable and free from pain. Before completing a living will, the most important questions are whether you want artificial life support, and if not, whether you want food and water provided at that time.
Representative Payee: Some government programs allow benefits payable to one person to be paid to another person called a representative payee. Social Security, Railroad Retirement, and the Veterans Administration all use representative payees. The benefits must be used only for the person entitled to the money.
A representative payee can be appointed if you are unable to manage your benefits. You—or someone on your behalf—must apply to the agency paying the benefits. A power of attorney does not allow someone to endorse or cash federal checks.
You do not need to be legally incapacitated to qualify for a representative payee. If you do not want a payee, or you want a different payee, you can ask the agency to change its decision. The agency must review whether you need a payee, and you have the right to challenge its decision.
Representative payees must regularly account for how funds are used and saved, usually once per year. A representative payee who intentionally misuses funds may be prosecuted. For more information, contact the relevant paying agency directly.
Conservatorship: A conservatorship is a legal proceeding that gives a person (the conservator) power over the finances and estate of an incapacitated or incapable person (the protected person). It is created when someone petitions the court to appoint a conservator.
You can state in a durable power of attorney who you would want as conservator if one is ever needed. Idaho requires that the protected person be served with the petition at least fourteen (14) days before the hearing. The court may appoint a court visitor and a physician to evaluate the person and submit reports, and the court may appoint an attorney to represent the protected person if they do not have their own counsel.
A court may appoint a conservator if it finds that the protected person cannot manage property and affairs effectively and that property will be wasted or dissipated without proper management, or that funds are needed for support, care, and welfare and protection is necessary or desirable.
After appointment, Idaho courts generally require an inventory within ninety (90) days and a yearly accounting thereafter describing how the conservator managed the person’s estate. One advantage of conservatorship is court oversight, including possible penalties for serious misconduct or failure to file required reports. Disadvantages include cost and the time required to put a conservatorship in place.
In many cases, having advance directives in place—durable power of attorney, durable power of attorney for health care, and a living will—can prevent the need for conservatorship, though not always. A conservatorship can be terminated if the protected person regains capacity, and petitions can also be filed to remove and replace a conservator.
Idaho also allows certain protective arrangements and single transactions without appointing a conservator, where the court may authorize a transaction necessary to meet foreseeable needs (for example, establishing a trust or approving certain real property transactions).
Guardianship: A guardianship is a legal proceeding that gives a person (the guardian) authority over personal decision-making for an incapacitated person (the ward). A guardian may be appointed when a person becomes incapacitated or is in danger of serious physical injury or illness and cannot make decisions.
A person interested in someone’s welfare may petition the court for guardianship. The court may appoint a visitor to interview the proposed ward, the petitioner, and the nominated guardian, and to visit the ward’s living situation. A physician is typically appointed to examine the proposed ward as well, and both submit reports to the court.
Idaho law sets out a list of priorities for who may serve as guardian, but the court can consider the ward’s preference if it is in the ward’s best interests and the ward is capable of expressing a preference. The ward must receive notice of the proceeding at least fourteen (14) days before the hearing, and the court will appoint an attorney for the proposed ward. The ward has the right to object, to be present at the hearing, to have legal counsel, to present evidence and testimony, and to examine witnesses, including the court-appointed visitor and physician.
A court may appoint a guardian if it finds the ward cannot make or communicate responsible decisions concerning their person. The court then issues Letters of Guardianship, which is the official document showing the guardian’s authority.
A guardian’s main role is making personal decisions for the ward. If the ward cannot communicate, the guardian should make decisions based on the ward’s best interests or, when possible, what the ward would have chosen. Guardians should involve the ward in decision-making as much as possible.
Idaho courts emphasize the least restrictive alternative, meaning the court should appoint only the level of guardianship that is necessary. For example, if a person only needs help with medical decisions, a limited guardianship might be appropriate.
In urgent situations, Idaho allows an emergency guardianship to be requested ex parte when substantial harm is likely and no one else has authority to act. This request should be supported by medical evidence or other proof of urgency. Emergency guardianship must be limited to only the powers necessary for immediate health and safety, and temporary guardianship expires after sixty (60) days.
When a person needs help with both personal and financial decisions, petitions for guardianship and conservatorship may be filed together. Guardianships can be terminated if the ward regains capacity, and petitions can be filed to remove and replace a guardian. Courts may also allow a successor guardian to be named—commonly when an elderly spouse serves as guardian but wants a backup named due to their own age and health concerns.
For more information, see “The Guardianship and Conservatorship Handbook” prepared by the Tax Probate and Trust Law Section of the Idaho State Bar, or “Serving as Guardian and Conservator” prepared by the Idaho Office on Aging in cooperation with the Idaho Department of Law Enforcement.
Probate is the procedure for transferring title of a deceased person's property to the proper survivors. If the person did not have a will, the laws of intestate succession set out who will inherit.
If there is a valid will, the estate still must be probated, but it is distributed according to the will. Probate also arranges for payment of all debts and taxes.
