Adult Guardianships and Conservatorships: Protection of Constitutional Rights
| Publication year | 1986 |
| Pages | 820 |
1986, May, Pg. 820. Adult Guardianships and Conservatorships: Protection of Constitutional Rights
Colorado's statutory procedures for imposition of a guardianship, conservatorship or protective orders are an adaptation of the Uniform Probate Code.(fn1) After repeal and reenactment in 1973, Article 14 of Title 15, CRS, "Persons Under Disability---Protection" (authorizing guardianship of minors and adults, conservatorships and powers of attorney) was an almost verbatim copy of the Uniform Probate Code. However, amendments to this article enacted by the Colorado General Assembly in 1975 and 1979 have substantially changed the system established to protect the rights of wards and protected persons under the Uniform Probate Code.
These amendments have created confusion regarding the role of the court, the visitor and the petitioner's counsel. Most proceedings brought under Article 14 do not involve occurrences of abuse or exploitation. However, there is a potential risk that adult wards and protected persons may be deprived of liberty without the due process protections required under the original Uniform Probate Code and which were contemplated by the Colorado legislature upon enactment of the present statutes.
In Colorado, guardianship refers to authority over the person and conservatorship refers to authority over property. Protective orders regarding the person or his estate may be issued by the court in the same proceedings as those filed to obtain a guardianship or conservatorship.
The purpose of this article is to discuss the problems which have emerged regarding imposition of adult guardianships, conservatorships and protective orders, and to propose some approaches which would strengthen the due process protections currently provided for potential wards and protected persons.
Upon filing a petition, the court may appoint a guardian if it is satisfied that the person for whom care is sought is incapacitated and that the appointment is necessary or desirable as a means of providing for that person's continuing care and supervision.(fn2) The court may also issue less restrictive protective orders upon making a finding of incapacity. Under CRS § 15-14-101(1), an incapacitated person is defined as follows:
While the definition of an incapacitated person has not changed since 1973, the procedures for finding incapacity have been changed through amendment(1) "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
Under the 1973 version of CRS § 15-14-303(2), once a petition for a finding of incapacity and appointment of a guardian was filed, the court was required to set a date for a hearing and to appoint an appropriate official or attorney to represent the allegedly incapacitated person who had not retained counsel. Once appointed to represent the respondent, the appointee had the powers and duties of a guardian ad litem. This provision insured an advocate for the rights of the allegedly incapacitated person and to (1) send a visitor to interview the person in his place of residence, (2) interview the person seeking appointment as guardian and (3) view any proposed change of residence.
In 1975, CRS § 15-14-303(2) was amended so that appointment of a guardian ad litem was at the court's discretion.(fn3) Thus, the court was required to appoint a physician to examine the allegedly incapacitated person and to send a visitor. The visitor was required to be a person trained in law, nursing or social work and an officer, employee or special appointee of the court with no personal interest in the proceedings.(fn4) The qualifications for the visitor are the same in present law and are taken verbatim from the Uniform Probate Code.
In 1979, CRS § 15-14-303(2) was amended to its present form. The visitor's responsibilities were expanded and the components...
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