Guardianships & Conservatorship Law and Process
A. Guardian: A person or entity appointed by the court to make decisions concerning the person of the ward, such as medical treatment, living arrangements, etc.
B. Ward: The individual for whom a guardian has been appointed.
C. Conservator: A person or entity appointed by the court to make financial decisions and manage the estate of a protected person.
D. Protected Person: The individual for whom a conservator has been appointed or other protective order has been made.
E. Respondent: The individual for whom the appointment of a guardian or conservator or other protective order is sought.
F. Incapacitated Person: Defined by the Colorado statute as a person who is unable to effectively receive or evaluate 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.
II. DISTINCTION BETWEEN GUARDIANSHIP OF THE PERSON AND CONSERVATORSHIP
A. Guardianship: A guardianship of the person relates to making decisions about the ward, such as where he or she is going to live, what kind of medical treatment, care and assistance will be received, how the person will be protected and what kind of supervision will be received.
B. Conservatorship: A conservatorship relates to making financial decisions and managing the estate of a person who is unable to manage his or her property and affairs effectively.
III. THE POWERS OF THE GUARDIAN Except as otherwise limited by the court, with respect to the ward, a guardian has the same powers, rights and duties that a parent has respecting his or her unemancipated minor child:
- To the custody of the person of the ward.
- To establish where the ward will live (including a nursing home).
- To make provisions for the support, care, education, health and welfare of the ward.
- To consent to medical or other care, treatment, or service for the ward.
- To consent to marriage of the ward.
- If reasonable under the circumstances, to delegate to the ward certain responsibilities for decisions affecting the ward’s well being.
- To take reasonable care of the ward’s clothing, furniture, vehicles and other personal effects and to commence protective proceedings if other property of the ward is in need of protection.
- If no conservator has been appointed, the guardian has the power to institute proceedings to compel any person under a duty to support the ward to perform his duty and to receive money and property for the support, care and education of the ward.
IV. THE POWERS OF THE CONSERVATOR Except as otherwise limited by the court, a conservator has the following powers and duties with respect to the protected person:
- Collect, hold and retain assets of the estate.
- Pay bills and other expenses of the protected person.
- Deposit money of the estate in banks and financial institutions.
- Acquire or dispose of assets for the benefit of the protected person.
- Continue or participate in the operation of any business.
- Invest assets of the protected person in a prudent manner.
- Pay taxes, assessments and other expenses of the estate.
- Pay for upkeep and repair of estate assets.
- Make, amend or revoke the protected person’s will (but only with prior court approval).
- Make gifts or release interests (but only with prior court approval).
V. THE LIMITS TO THE ROLES OF THE GUARDIAN AND CONSERVATOR A guardian or conservator is subject to the following limitations and restrictions:
- The court shall consider less restrictive alternative means of providing the necessary protective services for the ward or protected person.
- The court is to consider the wishes of the ward concerning care, counsel, treatment, service and supervision, as well as such person’s views concerning the selection of the guardian or conservator, their duties, the scope and duration of the guardianship or conservatorship and any limitations or restrictions which should be imposed on the powers of the guardian.
- The court may set forth limitations or restrictions of the guardian’s powers or duties, thereby creating a limited guardianship, including the scope and duration of the guardianship and including the extent to which a guardian shall be permitted to give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, etc.
- The guardian is not required to provide from his own funds for the ward and is not liable to third persons for acts of the ward solely by reason of the parental relationship except as provided by law.
- The guardian cannot use the guardianship case to obtain hospital or institutional care and treatment for mental illness of a ward, to obtain care and treatment from an approved service agency for a ward with developmental disabilities, or to obtain care and treatment for alcoholism. Rather, these services must be secured under different sections of the Colorado law. Additionally, the guardian shall not have the authority to consent to any such care or treatment against the will of the ward.
- The guardian of the ward or any person concerned with the care, counsel, treatment or service of the ward may petition the court at any time for instructions with regard to any such care, counsel, treatment or service.
- A conservator is a fiduciary who must not engage in self-dealing with estate assets or make any transaction that appears to be a conflict of interest. Certain actions require prior court approval, including, but not limited to: gifts, the creation or revocation of trusts, the exercise of rights to elect options and change beneficiaries under retirement plans, insurance policies, etc., and revocation or amendment of a will.
VI. STANDARD FOR IMPOSING A GUARDIANSHIP OR CONSERVATORSHIP A. The burden of proof refers to how much evidence must be presented in order to prevail in a case. In a involuntary guardianship or conservatorship case, the petitioner must prove by clear and convincing evidence that a person needs a guardian or conservator. Compare this to a criminal case, in which the burden of proof is beyond a reasonable doubt, and a civil case, in which the burden of proof is by a preponderance of the evidence.
B. When the court finds that a person is incapacitated, it must set forth its findings of fact concerning the nature and degree of incapacity and shall determine the nature and extent of the care, assistance, protection or supervision which is necessary or desirable under all of the circumstances, including consideration of less restrictive alternatives.
VII. THE COURT PROCESS A. A guardianship and conservatorship case is started by the filing of a Petition for the Appointment of a Guardian and a Petition for Appointment of a Conservator by the petitioner in the district court (probate court if in Denver) where the ward resides or is present.
B. Once a petition is filed, the court sets a date for a hearing on the appointment of a guardian and/or conservator.
C. If the respondent has no guardian or conservator and an emergency exists, the court itself may exercise the powers of a guardian or conservator or may appoint an emergency guardian or conservator without notice and a hearing. The allegation of an emergency and the need for an emergency appointment is set forth in the petition.
D. Once a petition is filed, unless the alleged incapacitated person has an attorney of his or her own choice, the court appoints a court visitor by entering an Order Appointing Visitor, who, among other duties, must interview the respondent, interview the person seeking to become guardian or conservator, visit or obtain information about where the respondent lives, interview any physician or other person who has provided care, counsel, treatment or service to the respondent in the recent past, and provide the court with a written report on the form provided, called a Visitor’s Report. The court visitor acts as “the eyes and ears of the court.”
E. A physician’s letter, setting forth the respondent’s medical circumstances and the need for a guardianship and/or conservatorship, is usually required before the court will appoint a guardian or conservator.
F. A Notice of Hearing form and a copy of the petition must be personally served on the respondent. The respondent cannot waive notice. Notice of the hearing must also be provided to the respondent’s spouse, parents and adult children, any person who is serving as the person’s guardian or conservator or who has care and custody of the respondent, the respondent’s treating physician, to any institution in which the respondent resides, to any legal representative of the respondent, and to any other person who may be directed by the court.
G. A Return of Service, indicating that the alleged incapacitated person has been personally served with notice and the petition, and a Certificate of Mailing, indicating that the other appropriate individuals have received notice, must be filed with the court prior to the hearing.
H. Once the hearing has been held and the court has determined that the appointment of a guardian and conservator is appropriate, an Order Appointing Guardian and Conservator is signed by the judge and the probate registrar issues Letters of Guardianship and Conservatorship. The Letters of Guardianship and Conservatorship serve as proof of the guardian’s and conservator’s legal authority. If there are any limitations or restrictions, they are noted on the Order and the Letters.
I. The guardian and conservator must sign a document called an Acceptance of Appointment, indicating that he or she is willing to assume the duties and obligations of a guardian or conservator and submitting personally to the jurisdiction of the court in any proceeding relating to the guardianship or conservatorship that may be instituted by any interested person.
J. If the guardian or conservator lives outside the state of Colorado, he or she must sign an Irrevocable Power of Attorney Designating Clerk of Court as Agent for Service of Process, in which the clerk of the court is designated to accept service of all notices and process issued by a court or tribunal in the state of Colorado in relation to any suit, matter, cause, hearing, or thing affecting or pertaining to the guardianship or conservatorship case.
K. The guardian is required to file a Guardian’s Report within 60 days of appointment and in each subsequent year, which details the ward’s mental, physical and social condition, living arrangements, the medical, educational and vocational services provided and the adequacy of care, a summary of visits and the actions taken by the guardian on behalf of the ward.
L. The conservator is required to prepare a financial plan and inventory of the protected person’s assets and file them with the court within 90 days of appointment. In addition, the conservator is required to file with the court an updated conservator’s report and accounting on an annual basis, detailing each deposit into the conservatorship estate and each expense out. The conservator’s report must reflect the goods and services provided to the protected person, state any recommended changes in the financial plan and state recommendations as to the continued need for and scope of the conservatorship.
VIII. THE RESPONDENT’S RIGHTS A. Unless excused by the court, the alleged incapacitated person is required to be present at any court proceeding. He or she is entitled to see or hear all evidence that is presented, to be represented by counsel, to present evidence, to cross-examine witnesses, including the court visitor, and to a trial by jury.
B. The court may appoint a physician to examine the person alleged to be incapacitated, who shall submit a written report to the court.
C. The court shall appoint an attorney for the alleged incapacitated person if the individual does not have one and requests an attorney or expresses a desire to object to the appointment of a guardian or conservator.
D. If the court believes that the rights and interests of the respondent cannot otherwise be adequately protected or represented, the court shall appoint an attorney to represent the person.
E. The court may appoint a guardian ad litem for the ward, who is a special fiduciary with the responsibility to represent and protect the interests of the person in the guardianship proceeding.
F. The respondent is entitled to have the court consider less restrictive alternatives of providing the necessary protective services.
G. The respondent is entitled to have the court consider his or her wishes concerning care, counsel, treatment, service and supervision.
H. The respondent is entitled to have the court consider his or her views concerning the selection of the guardian or conservator, their duties, the scope and duration of the guardianship or conservatorship and any limitations or restrictions which should be imposed on the powers of the guardian or conservator.
I. Once a guardianship or conservatorship has been established, the respondent has the right to petition the court to terminate the guardianship or conservatorship on the grounds that he or she is no longer incapacitated. The respondent may also ask for the removal of a guardian or conservator and the appointment of a successor.
NOTE: THIS DOCUMENT IS A SUMMARY AND IS FOR INFORMATIONAL PURPOSES ONLY. BECAUSE THE RESULTS MAY VARY BASED ON YOUR PARTICULAR FACTS AND CIRCUMSTANCES, CONTACT AN EXPERIENCED ELDER AND DISABILITY LAW ATTORNEY PRIOR TO ACTING ON ANY SUCH INFORMATION.