Our Colorado Probate Lawyer’s Guide to Guardianships: Keeping Vulnerable People Safe

Our Colorado Probate Lawyer's Legal Guide to Guardianships: Keeping Vulnerable People Safe

Colorado Guardianship Attorneys

What’s a Guardian?
When Does Someone Need a Guardian?
Types of Guardianships in Colorado
How Do I Become a Guardian in Colorado?
What are a Guardian’s Responsibilities?
Important Colorado Guardianship Definitions
How to Avoid Guardianship Issues

Keeping Vulnerable People Safe: Guardianships in Colorado

In a perfect world, all of life’s what-ifs would be accounted for. Parents of young children would have wills that appoint someone to care for their kids in the event something happens to them. Elderly individuals would have well-planned estates that assign a person to make decisions if they become incapacitated.

However, life is unpredictable. Your mom could unexpectedly become too ill to manage her own affairs; or your niece and nephew could lose their parents in a tragic accident.

When events like these occur, and there are no set directives, a guardianship becomes necessary.

Robinson & Henry’s compassionate probate attorneys can help you navigate the complex proceedings that surround guardianships. Call us today at (303) 688-0944 to schedule a consultation.

What’s a Guardian?

A “guardian” is someone the court appoints to ensure a minor child or incapacitated adult receives basic needs, such as food, housing, medical needs, and clothes. The person the guardian cares for is called the “ward.”

Under Colorado law, a guardian oversees the ward’s day-to-day necessities. In our state, a guardian does not manage a ward’s money – in most cases. The court generally delegates that responsibility to someone else called a conservator.

When Does Someone Need a Guardian?

Adults

When an adult is incapacitated, a court may appoint a guardian. Your mind may immediately go to an elderly person suffering with dementia when you hear the phrase “incapacitated adult.” But society’s aging persons aren’t the only adults who can need someone to look after their wellbeing.

Adults who have severe mental or physical disabilities or illnesses can also be appointed a guardian.

Incapacitated Adults and Colorado Law

Colorado law is very specific about what incapacitated means. Simply put, state law says an incapacitated adult is someone whose inability to make well-informed choices greatly limits their capacity to be self-reliant.

“’Incapacitated person’ means an individual other than a minor, 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.” C.R.S. 15-14-102(5)

Determining Incapacity

Normally, you cannot go to the courthouse and receive instant guardianship over an alleged incapacitated adult, and for good reason. A proposed ward will legally lose many rights to make decisions about their lives.

Colorado law requires evidence to support that someone should be deemed incapacitated.

  • Doctor’s report
  • Psychologist’s evaluation
  • Court-ordered assessment

In the court system, the alleged incapacitated adult is called a “respondent.” They’re required to be at court hearings unless the judge otherwise excuses them.

The respondent has the right to:

  • Legal Counsel
  • Present evidence; cross-examine witnesses
  • Contest the proposed guardianship
  • Request consideration of less restrictive measures

Children

When parents die or cannot provide a safe home for their child a judge may appoint a guardian.

Grounds for a Guardianship Request:

  • Death of parent(s)
  • Military service
  • Serious illness
  • Incarceration
  • Neglect
  • Child abuse
  • Substance abuse

When There’s a Will

If one parent dies or becomes incapacitated, the living parent will care for the child even if the decedent’s estate names a guardian.

In Colorado, if both parents pass away, and a will appoints a guardian, children 12 and older have the right to agree to the individual named in the will. If the child refuses the guardian, the court will choose one.

“Until the court has confirmed an appointee under section 15-14-202, a minor who is the subject of an appointment by a parent or guardian and who has attained twelve years of age has the right to consent or refuse to consent to an appointment of a guardian. If the minor consents to the appointment of the guardian, the minor shall file with the court in which the will is probated or the written instrument is filed a written consent to the appointment before it is accepted or within thirty-five days after notice of its acceptance. If the minor does not consent to the appointment of a guardian, then the court shall appoint a guardian pursuant to section 15-14-204.” C.R.S. 15-14-203

Types of Guardianship in Colorado

Guardianships in Colorado are established through a county probate court. A petitioner begins the process by submitting a request in the county where the proposed ward lives.

Colorado has different levels of guardianships:

Emergency Guardianships

As the name of the guardianship suggests, emergency guardianships are ordered when no one has the authority to act on behalf of a minor or an alleged incapacitated adult.

A court can name an emergency guardian without notifying all interested persons if delaying the appointment would harm the respondent.

Incapacitation does not have to be proven in emergency circumstances.

Emergency guardianships are active for 60 days or less.

The short time frame is intended to reduce abuse of emergency guardianships.

Did You Know? There are “professional” guardians who search for people to exploit through a guardianship. Elderly individuals are particularly at risk.

Emergency Guardian Victims: Rudy and Rennie North

Rudy and Rennie North, of Nevada, both in their mid-70s, unknowingly became wards of professional guardian April Parks, in 2013. Parks was awarded an emergency guardianship after she alleged the couple posed a substantial risk of physical and financial harm to themselves. A month later, Parks was awarded a permanent guardianship. The Norths had no legal representation at the hearing.

At times, the couple’s relatives were prevented from seeing them, and the Norths’ medical information was kept from immediate family members. The Norths were moved to different facilities. And over the course of nearly two years, the couple lost their savings, home, and vehicle.

In January 2019, Parks pleaded guilty to a number of felonies, including two counts of Elder Exploitation, involving two separate guardianship cases. In one case, a judge sentenced Parks to up to 40 years in prison; in the other case, she received up to 15 years. The sentences will run concurrently – meaning she will not serve more than 40 years. She was also ordered to pay a half million dollar in restitution.

The Norths’ were awarded $8.5 million in a civil case against Parks.

Temporary Guardianships

A petitioner must prove there is an immediate need and that a temporary guardian is in the minor’s best interest.

A temporary guardianship lasts for six months or less.

Note: There are no provisions in Colorado law that allow temporary guardianships of incapacitated adults. Instead, the court system uses emergency guardianship appointments for temporary needs.

A judge can name a temporary substitute guardian if it’s discovered a guardian is not acting in the best interest of the ward. A temporary substitute guardianship can be effective for six months.

Guardianships

In order to obtain a guardianship, the petitioner must prove by clear and convincing evidence that someone needs a guardian.

In Colorado, the law is written to ensure guardianships are as unrestrictive to the ward as possible, allowing them to retain as much autonomy as feasible.

Courts presume that limited guardianships are effective enough unless it can be proven in court there is a need for the guardian to have unlimited authority.

In general, a guardian is responsible for the adult or minor ward’s overall wellbeing, such as housing, health, and education. The court will set a guardian’s duties, including whether a guardian can give consent for the ward to receive certain medical or other professional treatment.

Limited Power

Colorado law calls for a guardian to have only as much authority as necessary, and it encourages the ward’s inclusion in decision-making as much as possible. C.R.S. 15-14-314

Judges are also required to provide orders that enable the ward to continue to develop self-sufficiency skills.

“The court, whenever feasible, shall grant to a guardian only those powers necessitated by the ward’s limitations and demonstrated needs and make appointive and other orders that will encourage the development of the ward’s maximum self-reliance and independence.” C.R.S. 15-14-311

How much power a guardian is awarded depends on the ward’s limitations and whether the ward is a minor.

Involuntary Commitments

Courts take seriously the limited power of guardians, especially when it comes to involuntary commitments. Our country’s infamous past of involuntarily hospitalizing and sterilizing mentally ill or incapacitated individuals – and, in some cases, lucid people – helped shape current probate court laws, including guardianship rules.

Today, most states regulate the process of sending a ward to any kind of treatment facility. Many states do not allow guardians to involuntarily commit a ward, requiring court oversight for such matters.

In Colorado, a judge must approve a request to admit a ward into a mental/behavioral health or substance abuse treatment center.

“A guardian may not initiate the commitment of a ward to a mental health care institution or facility except in accordance with the state’s procedure for involuntary civil commitment. To obtain hospital or institutional care and treatment for mental illness of a ward, a guardian shall proceed as provided under article 65 of title 27, C.R.S. To obtain care and treatment from an approved service agency as defined in section 27- 10.5-102, C.R.S., for a ward with developmental disabilities, a guardian shall proceed under article 10.5 of title 27, C.R.S. To obtain care and treatment for alcoholism or substance abuse, a guardian shall proceed as provided under article 80 of title 27, C.R.S. No guardian shall have the authority to consent to any such care or treatment against the will of the ward.”

Length of Guardianships

Guardianships for minors last until the child reaches 18 years of age. An incapacitated adult’s guardianship does not end until the death of the ward.

However, there are always caveats to the law.

A guardianship overseeing an adult can be terminated if there is clear and convincing evidence the ward no longer needs it.

  • A ward has a right to petition the court to end the guardianship if there is proof they are no longer incapacitated.

Other instances in which an adult guardianship can be removed:

  • A guardian, ward, or other interested party can petition to dissolve the guardianship if it is in the ward’s best interest.
  • A guardian can resign their duty with the court’s approval. This request may include a potential succeeding guardian.

How Do I Become a Guardian in Colorado?

The state of Colorado allows for anyone 21 years old or older, living in Colorado or another state, to be appointed as a guardian with a few exceptions.

Long-term Care Providers – A long-term care provider may not be a guardian for someone they provide care for unless they are related to them.

Professional Guardians – Guardians who are paid for their professional services may not serve a ward in more than one capacity – unless the court determines a good reason for the dual role.

For example: A professional guardian is prohibited from overseeing a ward’s wellbeing and their finances. In Colorado, a conservator would manage a ward’s finances.

The prospective guardian must undergo a background check, and their credit report must be pulled.

Did You Know? Two or more people can be guardians of one ward. A guardian can live outside of Colorado. Guardianships can be transferred to other counties or states.

The Court Process

  1. File a petition in probate court
  2. Provide a professional evaluation of the proposed ward
  3. The court may order additional assessment
  4. Guardianship Hearing

There are fees associated with a guardianship application, and they can change without notice.

Appointment of a Guardian

Guardians are appointed based on “statutory priority”:

  1. currently acting guardian
  2. individual nominated by the respondent
  3. agent under a medical durable power of attorney
  4. agent under a general durable power of attorney
  5. the respondent’s spouse or person named in a will
  6. the respondent’s adult child
  7. the respondent’s parent or person named in a will
  8. an adult the respondent has lived with for six months before the filing

The court can name a guardian who has a lower priority or no priority when good cause is shown.

Once a court assigns a guardian, he or she must notify the ward and other interested parties within 30 days of the appointment. A guardian must file a personal care plan created for the ward.

Professional Guardians

A professional guardian is someone who gets paid for overseeing a ward. While there are cases of professional guardians seeking out elderly people and other vulnerable individuals to take advantage of, most professional guardians are just that – professionals.

Families often nominate a professional guardian to care for an incapacitated loved one for a number of reasons. It may not be feasible to move the ward or relocate to where the ward lives. In this case, a professional guardian may be necessary.

Another scenario in which a professional guardian could be useful is when there are differences among family members. Siblings, for instance, may disagree about who should care for mom or dad and what the appropriate care should look like.

Professional guardians can also be appointed when there are no living family members.

What are a Guardian’s Responsibilities?

The responsibilities of a guardian are based on the individual needs of the ward. Generally, it’s their basic, daily welfare.

Some of the responsibilities and obligations of a guardian include:

  • Determining where the ward will live
  • Decisions regarding health care
  • Providing food and clothing
  • Handling of finances if the ward has few assets and there has been no conservator granted

A guardian must provide the court an annual report about the ward’s wellbeing.

Important Colorado Guardianship Definitions

Guardian: someone at least 21 years of age who qualifies as a guardian of a minor or incapacitated person

Minor: an un-emancipated individual who is not 18 years of age

Petition: a written request to the court for an order of guardianship

Petitioner: the individual who files a written request for the guardianship

Protective Proceeding: a legal proceeding to initiate a guardianship appointment

Respondent: an individual for whom the appointment of a guardian is sought

Ward: a person for whom a guardian is appointed

How to Avoid Guardianship Issues

One of the easiest ways to avoid guardianship issues for yourself or your loved one is to plan. When you lay out your wishes in advance with legal documents such as a durable power of attorney or a will, you can mitigate future problems and expenses.

Robinson & Henry’s probate and estate planning attorneys are here to help. Whether you’re in the midst of trying to sort out a guardianship issue or you need advice about arranging your future wishes, you can turn to our experienced and compassion lawyers.

Schedule a consultation by calling (303) 688–0944.

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