Defects, Due Process, and Protective Proceedings

• Publication year: 1998
• Pages: 39

27 Colo.Law. 39 Colorado Lawyer 1998.

1998, April, Pg. 39. Defects, Due Process, and Protective Proceedings

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39

Vol. 27, No. 3, Pg. 39

The Colorado Lawyer
April 1998
Vol. 27, No. 4 [Page 39]

Specialty Law Columns
Estate and Trust Forum
Defects, Due Process, and Protective Proceedings
by Susan G. Haines, John J. Campbell

The purpose of guardianship and protective proceedings is to protect and assist those individuals who lack the capacity to care for themselves or manage their property.1 However, from the perspective of the person to be protected, the appointment of a guardian or conservator can be both harsh and humiliating

Under the Fourteenth Amendment,2 the states may not deprive any person of liberty or property without due process of law Because guardianship and protective proceedings will usually restrict an individual's liberty or access to property the protection sought must be applied through due process of law. Unfortunately, the application of due process to these proceedings can be nonexistent, insufficient or ignored.3

Adequate Due Process Protection

Civil Commitment Versus Protective Proceedings

Civil commitment proceedings result in a massive curtailment of fundamental liberties; therefore, defendants in such proceedings are entitled to representation by counsel, freedom from compulsory self-incrimination, meaningful advance notice, a full evidentiary hearing with exclusion of hearsay evidence, and proof beyond a reasonable doubt.4 The same fundamental liberties are at stake in guardianship and protective proceedings. A person is no less incarcerated in a locked nursing home ward than in a psychiatric hospital or juvenile detention center. That person is no less stigmatized or deprived of liberty by court orders restricting the right to choose where to live and with whom to associate; to make medical decisions regarding his or her own body; to marry; to privacy; or to own, use, and possess property.

Guardianship and protective proceedings present a great risk that anything less than the strictest procedures could result in wrongful deprivations of liberty and property. Guardianship proceedings often result in "permanent orders" that endure for years, while civil commitment proceedings are often for "short-term" treatment. Often, the ward is not completely incapacitated, nor has the ward's condition led him or her to engage in criminal behavior. In spite of this, as discussed in this article, the incapacitated person is afforded less stringent procedural protection than that afforded to the criminal defendant or the mentally ill.

From a constitutional perspective, the minimum requirement of due process in guardianships and protective proceedings should but does not require every protection afforded to a criminal defendant or the mentally ill. Those protections include: (1) proper notice and hearing; (2) the opportunity to confront and cross-examine adverse witnesses; (3) proof beyond a reasonable doubt or clear and convincing evidence; (4) appointment of counsel; (5) freedom from compulsory self-incrimination; (6) the right to be present at any hearing; (7) the right to exclusion of hearsay and other unreliable evidence; and (8) the right to a jury trial.5

Notice and the Right To be Heard

Colorado provides for mandatory notice to the incapacitated person by personal service within ten days, accompanied by a copy of the Petition for Appointment of Guardian.6 The person's spouse, parents and adult children also must receive notice, although service by mail is acceptable.

In guardianship proceedings, the court must appoint a visitor to explain the substance of the petition and the purpose of the proceedings to the prospective ward.7 The visitor must investigate and evaluate the circumstances giving rise to the petition and submit a written report to the court within ten days following the appointment.8 Under the statute, these visitors are expected to possess only "such training as the court deems appropriate and are either officers, employees, or special appointees of the court."9

The prospective ward is entitled, but not required, to be present at any guardianship proceeding.10 (Ironically, no such right is granted to a prospective protected person under a conservatorship proceeding.11) Thus, there is no statutory provision prohibiting the appointment of a guardian where the prospective ward was not physically present at a hearing and his or her absence was not excused on a finding of good cause or waiver. As a result, it is not uncommon for Colorado courts to enter permanent orders without the allegedly incapacitated person having ever been present in the courtroom.12

In Milstein v. Ayers,13 the Denver Probate Court, on its own motion and without prior notice, issued an order excluding the allegedly incapacitated person ("AIP") from attending the permanent orders hearing. Counsel for the AIP alleged that Mrs. Milstein wished to be present at the hearing. The Colorado Court of Appeals found that CRS § 15-14-303(4) unequivocally entitles the AIP to attend any court proceeding bearing on his or her condition and that "to construe the statute as providing anything less would implicate constitutional concerns because a potential deprivation of fundamental rights and liberties is involved."14

Counsel Versus the Guardian ad Litem

The appointment of counsel is discretionary with the court, and that discretion can be exercised either sua sponte or in response to a motion.15 The court must appoint counsel for the incapacitated person if the person requests it, or if the person objects to the appointment of the proposed guardian or to the scope or duration of the guardianship.16 The potential problem is that the person to be protected may desire counsel, yet lack the capacity independently to move the court to appoint counsel. Often, the court may not consider the case until the hearing on permanent appointment, and then the pressures of a crowded docket may argue in favor of going forward, rather than postponing the hearing so that counsel may be appointed for the person to be protected.

No guidelines exist in Colorado's statutes about when the court should appoint an attorney and when the court should appoint a...