Guardianship of an Adult

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;

and

(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.

Below is a sample Petition for a Guardianship

__ 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 GUARDIAN FOR ADULT

1. The Petitioner is

__ a person interested in the welfare of the Respondent.

or

__ the Respondent.

This is a Petition for appointment of a:

__ Permanent Guardian. (§15-14-304(1) and (2), C.R.S.)

__ Emergency Guardian (not to exceed 60 days). (§15-14-312, 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: _____________

Home Phone #: __________________________

__ If this appointment is made, the Respondent's residence 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 because the Respondent

__ resides in this county.

__ is present in this county. ( Check this box only if requesting an Emergency Guardian.) (§15-14-108(2), C.R.S.)

__ is admitted to an institution pursuant to an order of a court of competent jurisdiction sitting in this county. (Attach copy of order.)

6. __ An appointment of a guardian for the Respondent has been previously made. (Attach copy of Order.)

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

___________________________

____________________________

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

__________________________

_________________________

9. The Respondent is unable to effectively receive or evaluate information or both, 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. (§15-14-102(5), C.R.S.)

10. The Respondent's identified needs cannot be met by less restrictive means, including use of appropriate and reasonably available technological assistance.

11. Guardianship is necessary due to the following disabilities or impairments: __ Physician's letter attached.

___________________________

__________________________

_________________________

__________________________

_________________________

________________________

12. Petitioner requests the powers and duties to be __ unlimited/unrestricted or __ limited/with restrictions. The requested limitations/restrictions on the Guardian's powers and duties, if any, are as follows:

_______________________

_______________________

_______________________

_______________________

______________________

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

or

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

Name: ______________________

Street Address: ____________________

Mailing Address, if different: _______________________

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

Email Address: ___________ Work Phone #: _______________

14. The nominated Guardian has priority for appointment because he/she is: (§15-14-310, C.R.S.)

__ a Guardian currently acting for the Respondent in Colorado or elsewhere.

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

__ an agent under a medical power of attorney.

__ an agent under a general durable power of attorney.

__ the spouse of the Respondent.

__ the parent of the Respondent.

__ an adult child of the Respondent.

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

__ other:

____________________

____________________

___________________

15. __ The Respondent nominated the following person as Guardian, 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 #: _______________

16. __ It is necessary to appoint an Emergency Guardian for the Respondent because complying with the normal procedures for the appointment of a Guardian will likely result in substantial harm to the Respondent's health, safety, or welfare and no other person appears to have authority and willingness to act in the circumstances. (§15-14-312, C.R.S.) The nature of the emergency is as follows:

_____________________

___________________

__________________

__________________

17. Information about adult children and parents. __ 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 #: _______________

Name: _____________ Relationship: _______________

Street Address: ________________

Mailing Address, if different: ______________

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

Email Address: _______________ Work Phone #: _____________

18. Information about each person currently responsible for 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: _________________

19. __ The following person is the 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: _________

20. The Guardian 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.

21. The Guardian 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.)

22. The Respondent's assets are:

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

__ None

Estimated Value

$

Total

$

23. The Respondent's income is:

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

__ None

Estimated Amount of Income

$

Total

$

The Petitioner requests that an appointment of a Guardian 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