Understanding the difference can help you when creating your Colorado estate plan
If an adult becomes incapacitated as a result of an illness or an injury, or is in another way disabled and unable to make decisions for himself/herself regarding his/her care or estate, then a Colorado probate court will appoint someone to make those decisions for the incapacitated person.
Those decision-makers are called guardians and conservators and they can also come into play in situations involving a minor child.
If both parents of a minor child are deceased, incapacitated or deemed by the court unfit to parent, the court will appoint a guardian and a conservator to care for the child.
While in some cases one person might fill both roles, each has its own specific responsibilities. There are also situations in which the court will appoint only a guardian or only a conservator.
To serve as a guardian or conservator (whether for an adult or for a minor), you must be 21 years of age or older and file a guardianship petition in the district court in the county where the ward (the formal term for the person you will be caring for) resides; if the ward resides in Denver, the petition must be filed with the probate court.
The court’s first choice is to appoint these roles to a close family member, such as a spouse or parent in the case of an incapacitated adult or an aunt, uncle or grandparent in the case of a minor child. Other relatives or close friends are a second choice when no close family member is available or suitable. In the event that no friend or family member is available, the court will typically appoint an experienced, specially trained attorney.
Here’s the difference between guardianship and conservatorship for an adult in Colorado:
A guardian of an incapacitated adult …
- Is responsible for an incapacitated person’s well-being and personal care.
- Makes decisions regarding the incapacitated person’s medical treatment and living arrangements.
- Determines what sort of assistance and supervision the person will receive.
- Can only handle small amounts of money on the protected person’s behalf. Examples include monthly stipends or Social Security benefits. If the guardian needs to handle more than $24,000 annually, the court will appoint a conservator (if it has not done so already).
Colorado courts require a guardian to submit an initial care plan for the incapacitated person within 60 days of appointment and to submit annual reports regarding the ward’s condition and activities.
The appointment of a guardian does not automatically void the ward’s current medical power of attorney unless the court orders otherwise.
A conservator of an incapacitated adult …
- Is responsible for managing an incapacitated person’s property and financial affairs.
- Does things like pay the incapacitated person’s bills, deposit checks or even take care of their home if they’re living in a care facility.
- Continue or participate in the operation of any business of which the incapacitated person has ownership.
A conservator is typically only appointed if the incapacitated person has more income and assets than is required for meeting daily needs.
Colorado courts require a conservator to submit an inventory with a financial plan within 90 days of appointment and to provide an annual report detailing the incapacitated person’s finances. The conservator must get permission from the court before doing things like selling the protected person’s house.
The appointment of a conservator does not automatically void the protected person’s financial power of attorney unless the court orders otherwise.
Here’s the difference between guardianship and conservatorship for a minor child in Colorado:
The roles of guardians and conservators for children under the age of 18 are relatively similar to those roles for incapacitated adults, though the daily duties and responsibilities (listed below) differ slightly. The court usually appoints the same person to be both guardian and conservator for a minor child, though it is not required that be the case.
A guardian of a minor …
- Assumes the same duties and responsibilities as a parent.
- Is responsible for the minor’s care, protection, mental and physical health, living arrangements and education.
- Does things like sign school or physician consent forms.
- Arranges for the minor’s food, clothes, personal care items, housekeeping and transportation.
Many parents appoint a guardian in their will. Generally, if one parent dies or becomes incapacitated, the minor child will be placed in the care of the living parent, even if the deceased or incapacitated parent appointed a different guardian in his/her will.
Children over the age of 12 must consent to the guardian, and if the child doesn’t consent to the guardian appointed in the parents’ will, then the court will choose the guardian.
If both parents die or become incapacitated and neither had a will appointing a guardian for their minor child(ren), then the court will appoint a guardian.
The guardianship of a minor child automatically ends on his/her 19th birthday unless he/she is incapacitated, though it might terminate earlier if he/she gets married, joins the military or becomes self-supporting.
A conservator of a minor:
- Manages a minor child’s financial affairs.
- Has a legal obligation to use and protect the minor child’s money in a way that is fiscally responsible and in the best interest of the child.
- Manages and invests assets appropriately.
Colorado law requires the court to appoint a conservator if a child inherits an amount of money that is greater than $11,000. The conservator holds and manages the property until the minor is 21.
A conservator is also required when a child is listed as a beneficiary of a life insurance policy and if a child inherits any real estate or other titled property, a conservator is required to sell that property. Any proceeds from such a sale are retained for the minor child in the conservatorship until the minor is 21.
Are you a parent of young children? Click here to read our post about estate planning if you have minor children.
How it all factors into your Colorado estate plan
An incapacitated person cannot appoint his/her own guardian or conservator, nor can an incapacitated person appoint a medical or financial power of attorney. However, in the event that the incapacitated person executed a good estate plan before becoming incapacitated, guardianships and conservatorships can generally be avoided.
For many parents of minor children, one of the primary reasons to create a will is to appoint a guardian for their children should they no longer be present or able to do so themselves. And when determining a conservator for a minor child, the court will consider a person named in the will of the last parent to die, along with the wishes of the child if he/she is 12 years of age or older (though the court is not bound by the parents’ or the child’s choice).
Creating a good estate plan while you’re healthy and capable is a good way to ensure that your wishes are known for the future care and protection of yourself and your children should the unthinkable become a reality.
Meet Robinson & Henry’s lead estate planning attorney
Robinson & Henry’s Colorado Springs estate planning attorney, Michael Hanchett, can assist you through the process of creating an estate plan from start to finish. It’s also recommended that you consult with an estate planning and probate attorney like Michael if you would like to file a petition for conservatorship or guardianship of a friend or family member. Start by scheduling a free consultation today; call (303) 688-0944 or click here to make an appointment online.