By Bruce Alan Danford, LLM (rev’d 9/26/11)
This article is about a Guardianship for an adult. In order to understand exactly what a guardianship is and how one is created we will begin with some definitions.
A Guardian is defined under Colorado Revised Statute (CRS) § 15-14-102(4) as:
(4) “Guardian” means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by the court. The term includes a limited, emergency, and temporary substitute guardian but not a guardian ad litem.
An Incapacitated Person is defined under CRS § 15-14-102(5) as:
(5) “Incapacitated Person” means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.
A “ward” means an individual for whom a guardian has been appointed. CRS 15-14-102 (15).
The focus of this discussion is only upon the guardianship of an adult who is an incapacitated person as defined above. The duties of a guardian are found in CRS § 15-14-314 as:
(1) Except as otherwise limited by the court, a guardian shall make decisions regarding the ward’s support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the ward’s limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian, at all times, shall act in the ward’s best interest and exercise reasonable care, diligence, and prudence.
(2) A guardian shall:
(a) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health;
(b) Take reasonable care of the ward’s personal effects and bring protective proceedings if necessary to protect the property of the ward;
(c) Expend money of the ward that has been received by the guardian for the ward’s current needs for support, care, education, health, and welfare;
(d) Conserve any excess money of the ward for the ward’s future needs, but if a conservator has been appointed for the estate of the ward, the guardian shall pay the money to the conservator, at least quarterly, to be conserved for the ward’s future needs;
(e) Immediately notify the court if the ward’s condition has changed so that the ward is capable of exercising rights previously removed;
(f) Inform the court of any change in the ward’s custodial dwelling or address; and
(g) Immediately notify the court in writing of the ward’s death.
From these two definitions and the list of duties, we can arrive at a working definition for a “Guardianship” as being the legal state whereby a Court or a parent has appointed a person to manage the physical care of another. This is a rough definition but it does contain the important aspects of a guardianship. Please note our working definition contains the phrase “manage the physical care.” The reason I point this out is it is not necessary for the guardian to perform the care themselves. In fact in many cases it would be highly inappropriate to do so. An example could be an elderly parent with many physical disabilities requiring professional medical care or an elderly parent suffering from dementia or Alzheimer’s disease requiring 24 hour awake supervision as they go on their 2:00 am stroll.
A “Respondent” is the person for whom a guardianship is sought. After a guardian is appointed by a court, the Respondent becomes a Protected Person.
A guardianship is appropriate when, by clear and convincing evidence, it is shown the Respondent is:
CRS § 15-14-311
(1)(a)(I) The respondent is an incapacitated person;
(II) The respondent’s identified needs cannot be met by less restrictive means, including use of appropriate and reasonably available technological assistance;
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 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 Guardianship should consult with an attorney experienced in Guardianships.