Conservatorship of an Adult

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)).

And

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.

Below is a sample Petition for a Conservatorship.

__ District Court __ Denver Probate Court

____________ County, Colorado Court Address:

____________

In the Interest of:

Respondent

COURT USE ONLY

Attorney or Party Without Attorney (name and address):

Phone Number: E-mail:

FAX Number: Atty. Reg. #:

Case Number:

Division Courtroom

VERIFIED PETITION FOR APPOINTMENT OF CONSERVATOR FOR ADULT

1. The Petitioner is

__ a person who would be adversely affected by lack of effective management of the Respondent's property and business.

__ a person who is interested in the estate, financial affairs, or welfare of the Respondent.

__ the Respondent.

This is a Petition for appointment of a:

__ Permanent Conservator.

__ Special Conservator. While a petition to establish a conservatorship is pending, there is a need to preserve and apply the property of the Respondent as may be required for the support of the Respondent or individuals who are in fact dependent upon the Respondent. (§15-14-406(7), C.R.S.)

__ Special Conservator. There is a need for a protective arrangement or other single transaction. A permanent conservatorship is not requested. (§15-14-412(3), C.R.S.)

2. Information about the Petitioner:

Name: _______________ Relationship to Respondent: ______________

Street Address: ________________

Mailing address, if different: __________________

City: _________________ State: _____ Zip Code: ___________ Home Phone #: ________________

Email Address: ________________ Work Phone #: _________________

3. Information about the Respondent:

Name: _________________ Age: ____ Date of Birth: ______________

Street Address: _______________

Mailing address, if different: __________________

City: _________________ State: _____ Zip Code: _________ County of Residence: _____________

__ If this appointment is made, the Respondent's dwelling will change to:

_____________

4. Information about the Respondent's spouse or adult who has resided with the Respondent for more than six months in the last year :

Name: ______________ Relationship to Respondent: ____________

Street Address: _____________

Mailing address, if different: ________________

City: _________________ State: _____ Zip Code: ___________ Home Phone #: ________________

Email Address: ______________ Work Phone #: _____________

5. Venue for this proceeding is proper in this county because the Respondent

__ resides in this county.

__ does not reside in this state, but has property in this county.

6. __ A Power of Attorney exists for financial or medical matters. ( Attach a copy to the Petition.) The agent's name and mailing address is:

7. __ A valid designated beneficiary agreement exists. ( Attach a copy of the agreement to the Petition.) The designated beneficiary's name and mailing address is:

____________________

___________________

8. __ A Conservator is required because the Respondent is unable to manage property and business affairs because he/she is unable to effectively receive and evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance due to the following disabilities or impairments: __ Physician's letter attached.

___________________

In addition:

__ the Respondent has property which will be wasted or dissipated unless proper management is provided.

and/or

__ the Respondent, or persons entitled to the Respondent's support, require money for support, care, education, health, and welfare, and protection is necessary or desirable to obtain or provide money.

9. __ A Conservator is required because the Respondent is missing, detained, or unable to return to the United States. The nature of the Respondent's disappearance or detention and any efforts to locate the Respondent are as follows:

__________________

10. The Petitioner requests the Conservator's powers and duties be __ unlimited/unrestricted or __ limited/with restrictions. The property to be placed under the Conservator's control and the requested limitations/restrictions on the Conservator's powers and duties, if any, are as follows:

________________

11. __ Petitioner is, 21 years of age or older, nominates himself/herself and requests to be appointed as Conservator or Special Conservator.

or

__ Petitioner nominates the following person, who is 21 years of age or older, to be appointed as Conservator or Special Conservator.

Name: _______________ Relationship to Respondent: _______________

Street Address: __________________

Mailing address, if different: _________________

City: _________________ State: _____ Zip Code: ___________ Home Phone #: ________________

Email Address: _____________ Work Phone #: ____________

12. The nominated Conservator has priority for appointment because he/she is: (§15-14-413,C.R.S.)

__ a Conservator, Guardian or other fiduciary appointed or recognized by a court in another jurisdiction where the protected person resides.

__ nominated in writing by Respondent, including nomination in a durable power of attorney or designated beneficiary agreement.

__ an agent appointed by the Respondent to manage the Respondent's property under a durable power of attorney.

__ the spouse of the Respondent.

__ an adult child of the Respondent.

__ a parent of the Respondent.

__ an adult with whom Respondent has resided for more than six months immediately before the filing of this Petition.

13. __ The Respondent nominated the following person as Conservator, but the Petitioner does not seek that person's appointment for the following reason:

___________________

___________________

Name: _______________Relationship to Respondent: ____________

Street Address: ___________________

Mailing address, if different: ___________________

City: _________________ State: _____ Zip Code: ___________ Home Phone #: ________________

Email Address: ____________ Work Phone #: ____________

14. The Conservator may receive compensation.

__ The hourly rates to be charged, any amounts to be charged pursuant to a published fee schedule, including the rates and basis for charging fees for any extraordinary services, and any other bases upon which a fee charged to the estate will be calculated, are as stated below or in an attachment to this Petition. *

_______________

__ The basis of compensation has not yet been determined.

15. The Conservator may compensate his, her, or its counsel.

__ The hourly rates to be charged, any amounts to be charged pursuant to a published fee schedule, including the rates and basis for charging fees for any extraordinary services, and any other bases upon which a fee charged to the estate will be calculated, are as stated below or in an attachment to this Petition. *

_________________

__ The basis of compensation has not yet been determined.

* There is a continuing obligation to disclose any material changes to the basis for charging fees. (§ 15-10-602 C.R.S.)

16. Sections a and b below identify assets and the source and amount of anticipated income or receipts (public benefits, income, real property, proceeds from insurance policy, proceeds from pension, etc.), together with an estimate of the value.

a. The Respondent's assets are:

Description of Assets (e.g. bank accounts, insurance, pensions, property)

__ None.

Estimated Value

$

Total

$

b. The Respondent's income is:

Description of Income (e.g. social security, pension and insurance)

__ None.

Estimated Amount of Income

$

Total

$

17. __ The following person is currently acting as a __ Guardian and/or __ Conservator in Colorado or elsewhere:

Name: ______________ Relationship to Respondent: _______________

Street Address: _________________

Mailing address, if different: _________________

City: _________________ State: _____ Zip Code: ___________ Home Phone #: ________________

Email Address: ____________ Work Phone #: _____________

18. Information about adult children and parents. q None (If none, list an adult relative that can be found with reasonable efforts, such as a brother, sister, aunt, uncle, etc.):

Name: _____________ Relationship: __ Adult Child or __ Parent

Street Address: ___________________

Mailing Address, if different: _______________

City: _______________ State: ________ Zip Code: __________ Home Phone #: _______________

Email Address: _____________ Work Phone #: _______________

Name: ______________ Relationship: __ Adult Child or __ Parent

Street Address: ________________

Mailing Address, if different: _______________

City: _______________ State: ________ Zip Code: __________ Home Phone #: _______________

Email Address: ________________Work Phone #: _______________

19. __ The following person had the primary care and custody of Respondent during the 60 days prior to the filing of this Petition:

Name: ______________ Relationship: ___________

Street Address: _______________________

Mailing Address, if different: ___________________

City: _______________ State: ________ Zip Code: __________ Home Phone #: _______________

Email Address: ___________________ Work Phone #: _______________

Dates of Care: __________________

20. Information about each person currently responsible for the primary care and custody of the Respondent, including the Respondent's treating physician: __ None

Name of Treating Physician: _____________ Phone #: _______________

Street Address: __________________

Mailing Address, if different: ______________

City: _______________ State: ________ Zip Code: _________ Email Address: _________________

Name of Caregiver: _____________ Phone #: _______________

Street Address: _________________

Mailing Address, if different: _______________

City: _______________ State: ________ Zip Code: _________ Email Address: _________________

21. __ The following person is a Legal Representative for the Respondent not otherwise designated above. (Representative payee, trustee, custodian of a trust, etc. §15-14-102(6), C.R.S.)

Name: _________________Type of Legal Representative: _______________

Phone #: ________________ Email Address: __________________

Mailing Address: ______________________

City: _______________ State: ________ Zip Code: _________

The Petitioner requests that appointment of a Conservator be made after notice and hearing.

__ In addition, the Petitioner requests the following:

VERIFICATION AND ACKNOWLEDGMENT

I (Petitioner) verify that the facts set forth in this document are true as far as I know or am informed. I understand that penalties for perjury follow deliberate falsification of the facts stated herein. (§15-10-310, C.R.S.)

________________

Signature of Petitioner Date

The foregoing instrument was acknowledged before me in the County of ________________, State of Colorado, this ____day of ____________, 20___, by the Petitioner.

My Commission Expires: ________________

________________

Notary Public/Deputy Clerk

___________________

Signature of Attorney Date