Guardianship
As the Baby Boomers of our society age and begin to experience the effects of seniority, family members may need to familiarize themselves with Colorado guardianship procedure and the requirements to be appointed the guardian over a loved one.
A myriad of health issues may arise with elderly individuals, some of which may unfortunately present problems with otherwise simple, everyday tasks, for instance taking medicine, feeding, dressing, or driving. When this occurs, it may be necessary to appoint a guardian for a senior, in order to best protect them and the community in which they live.
Additionally, many clients that contact our Colorado estate planning attorneys want to discuss the necessity of a guardianship for an elderly mother or father, often overlooking the long term legal planning for guardianships of younger family members who may be disabled or otherwise legally incapacitated. Guardianships are applicable to a variety of situations, involving a variety of ages and health issues, and can be beneficial for families that want to provide the most freedom possible to a disabled or elderly family member, yet still have the authority to provide adequate supervision or restrictions. This article discusses the general procedure to have a guardian appointed under Colorado law.
Upon receipt of a petition to establish guardianship under C.R.S. § 15-14-305, the Court will set a date and time for a hearing on the petition and will appoint a “visitor” for the proposed respondent or “ward.” The Court may further appoint a lawyer for the Respondent if requested by the Respondent, recommended by the visitor, or the court determines that the Respondent is in need of representation. It should be noted that appointment of a guardian ad litem for an incapacitated person does not substitute for counsel, as they represent different interests. Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App. 1998).
Unless excused by the court for good cause, the proposed guardian shall attend the hearing on the Petition and shall make every reasonable effort to secure the Respondent’s attendance at the hearing (C.R.S. § 15-14-308). The Petition and the corresponding Notice of Hearing are to be personally served upon the Respondent (C.R.S. § 15-14-309).
There is no specific prohibition for proposed guardians residing out of state, pursuant to C.R.S. § 15-14-310. However, express authorization from the court is needed before a guardian can move a Respondent to live out of state.
The court may appoint a limited or unlimited guardian for a Respondent only if it finds by clear and convincing evidence that (1) the Respondent is an incapacitated person; and (2) the Respondent’s identified needs cannot be met by less restrictive means, including use of appropriate and reasonably available technological assistance. C.R.S. § 15-14-311. This standard is required due to the possible deprivation of basic liberties. Sabrosky v. Denver Dept. of Soc. Servs., 781 P.2d 106 (Colo. App. 1989). Emergency guardianships are permissible if the court finds that compliance with standard appointment procedure “will likely result in substantial harm to the respondent’s health, safety, or welfare, and that no other person appears to have authority or willingness to act in the circumstances.” C.R.S. § 15-14-312. Further, an emergency guardian may be appointed without notice to the Respondent, but only “if the court finds from testimony that the Respondent will be substantially harmed if the appointment is delayed.” Id. Emergency guardians are granted authority for up to 60 days and may only exercise powers specified in the order of appointment. Id. In emergency appointments, the court will also appoint a lawyer to represent the Respondent until the guardian’s authority expires.
Once appointed, a Colorado guardian “shall make decisions regarding the ward’s support, care, education, health and welare.” C.R.S. § 15-14-314. A guardian shall encourage the Respondent to make their own decisions (to the extent he/she is capable), act on the Respondent’s behalf, and shall act to manage the Respondent’s personal affairs. A guardian shall consider the Respondents’ wishes when making decisions, and shall act with the Respondent’s best interests in mind, exercising “reasonable care, diligence, and prudence.” Id. For further specific duties, please refer to § 15-14-314(2)(a)-(g). Further, the guardian may be authorized to (1) apply for, and receive, money payable to the Respondent, (2) take custody of the Respondent and establish a residence to them (but may only move the Respondent out of state with express authorization from the Court), (3) consent to medical care or treatment, and (4) if appropriate, delegate to the Respondent certain responsibilities for decisions affecting the Respondent’s well-being. C.R.S. § 15-14-315. A guardian may also petition the court for authority to commence or maintain an action for dissolution of marriage or legal separation on behalf of the Respondent. C.R.S. § 15-14-315.5.
The guardian is entitled to receive “reasonable compensation” for services as guardian and to certain reimbursements, but only as approved by order of the Court. The guardian need not use their own personal funds for the Respondent’s expenses. (For additional limitations and immunities, please see C.R.S. § 15-14-316).
Within 60 days after appointment (unless otherwise ordered), Guardians are required to file a report with the court regarding the Respondent’s condition, personal care plan, and account for money and other assets in the Respondent’s possession and control. Reports are then filed annually thereafter. Failure to file said reports constitutes contempt of court. C.R.S. § 15-14-317.
There are several ways a guardianship can terminate under C.R.S. § 15-14-318:
- Automatically upon the death of the Respondent
- Upon court approval of a petition by the Respondent, the guardian, or another interested person. (note: there are special provisions that apply in a termination proceeding initiated by the Respondent). C.R.S. § 15-14-318(3.5)
- Court removal or guardian resignation
