By Bruce Alan Danford, LLM (rev’d 9/26/11)
This article is about a Conservatorship for an adult. In order to understand exactly what a conservatorship is and how one is created we will begin with some definitions.
A Conservator is defined under Colorado Revised Statute (CRS) § 15-14-102(2) as:
(2) “Conservator” means a person at least twenty-one years of age, resident, or non-resident, who is appointed by a court to manage the estate of a protected person. The term includes a limited conservator.
A Protected Person is defined under CRS § 15-14-102(11) as:
(11) “Protected Person” means a minor or other individual for whom a conservator has been appointed or other protective order has been made.
From these two definitions, we can arrive at a working definition for a “Conservatorship” as being the legal state whereby a Court has appointed a person to manage the assets of another. This is a rough definition but it does contain the important aspects of a conservatorship. Where a conservatorship is appropriate or possible is addressed next.
A “Respondent” is the person for whom a Conservatorship is sought. After a Conservator is appointed by a court, the Respondent becomes a Protected Person.
A Conservatorship is appropriate when, by a preponderance of evidence, it is shown the Respondent is:
Unable to manage property and business affairs because he or she is unable to effectively receive an evaluate information or both or communicate decisions, even with the use of appropriate and reasonably available technological assistance due to some disability or impairment (see CRS § 15-14-401(1)(b)(I)).
The individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, health, care, education, health, and welfare of the individual or of individuals who are entitled to the individual’s support and that protection is necessary or desirable to obtain or provide money. (see CRS § 15-14-401(1) (b) (II).
In the case of an adult, a Conservatorship is most often granted in the cases of a person who is not able to care for themselves or their property due to problems of lack of developmental development or an older person suffering from some impairment caused by dementia or Alzheimer’s disease.
The formation of a Conservatorship for an elderly parent suffering from dementia or Alzheimer’s disease is common and frequently sought by the children of the Respondent. A doctor’s letter is usually required by the Court to show the adult is truly impaired.
Who may seek a Conservatorship over an individual is very strictly governed by CRS § 15-14-403(1) and includes only:
(a) The person to be protected;
(b) An individual interested in the estate, affairs, or welfare of the person to be protected, including a parent, guardian, or custodian; or
(c) A person who would be adversely affected by lack of effective management of the property and business affairs of the person to be protected.
The statute therefore would allow a person who is aware of their need for help to request the Court for a Conservator. It also allows an individual who is interested in the person’s welfare, such as a child of the Respondent, to seek a Conservatorship.
The process is not excessively complicated. In very general terms below is a rough outline of the process.
1. A petition is filed with the District Court wherein whose jurisdiction the Respondent resides.
2. A hearing date must be obtained by the Petitioner.
3. The Respondent must be personally served a copy of the Petition.
4. A copy of the Petition must be sent, usually by U.S. mail, to:
A. The spouse of the Respondent or if none to whomever the Respondent has resided with for more than six months in the past year;
B. Any adult children of the Respondent or if the Respondent has neither spouse nor any adult children, any adult closest in relationship to the Respondent who can be found with reasonable effort.
C. Each person responsible for the care and custody of the Respondent including the Respondent’s treating physician.
D. The Respondent’s attorney if any.
E. Any other person the Court may direct.
5. The Court will appoint a Court Visitor to interview the Respondent and the Petitioner for the Court.
6. The Court may appoint an attorney for the Respondent if the Respondent does not have one and requests one or if the Court Visitor informs the Court the Respondent needs an attorney.
7. The Hearing is held during which evidence and witnesses may be presented.
8. Immediately after the Hearing, the Judge will make a determination of whether or not to grant the Petitioner’s Petition.
The above is a much-abbreviated summation of the process. This brief article is not meant to be construed as legal advice and is meant for educational and information purposes only. The information is not legal advice or a particular legal opinion. The information is not intended to create, and receipt does not constitute, a lawyer-client relationship between The Law Firm of Bruce Alan Danford, LLC and you. The law changes very rapidly and, accordingly, we do not guarantee that any information contained hereto is accurate and up to date other than the revised date. Additionally, the law differs from jurisdiction to jurisdiction, and is subject to interpretation of courts located in each county. Legal advice must be tailored to the specific circumstances of each case and the tools and information provided to you may not be an appropriate fit in your case. Nothing that you read or is provided on this web site should be used as a substitute for the advice of competent legal counsel. It is highly recommended that anyone seeking to create a Conservatorship should consult with an attorney experienced in Conservatorships.