Chapter 19 - § 19.4 • CONSERVATORSHIP

• Jurisdiction: Colorado

§ 19.4 • CONSERVATORSHIP

§ 19.4.1—Protected Persons

Again, bear in mind the distinction between guardianship and conservatorship as discussed in the introduction to this chapter. The conservator normally exercises authority only over the assets or estate of a "protected person."⁶⁵ However, a conservator may exercise quasi-guardian-type authority through the purse strings — e.g., hiring homemaker or visiting nurses services. The statutory framework distinguishes between protected persons (conservatorships and protective proceedings) and wards (guardianships for incapacitated persons), although the terms are frequently used interchangeably, if not correctly. When dealing with the elderly, the authority of the conservator should not be confused with that of the guardian, even though one individual may serve in both capacities. An order appointing a conservator is not a determination of incapacity as to the protected person.⁶⁶ If a conservator will be required in addition to a guardian, the practitioner should consider filing both petitions together to save court time and expense. A separate filing fee of $199 may be required for each petition, unless filed at the same time.

§ 19.4.2—Protective Proceedings

Protective proceedings also encompass other protective orders besides conservatorship. These include authorizing single transactions or specific authority to preserve and protect assets. The process for appointing a conservator is referred to as "protective proceedings."⁶⁷ The statutory requirements to appoint a conservator differ somewhat from those necessary to appoint a guardian and consist of two tiers. First, a conservator may be appointed if the court determines by clear and convincing evidence that the protected person is unable to manage his or her property due to an inability to effectively receive or evaluate information or both, or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance.⁶⁸ This standard tracks the definition of incapacitated person,⁶⁹ even though conservatorship does not result in a determination of incapacity. A conservator may also be appointed for an individual who is missing, detained, or unable to return to this country without the need to establish incapacity. Second, it must be established by a preponderance of evidence that the protected person has property that will be wasted or dissipated without proper management, or the protected person needs funds for his or her support, care, and welfare, or that of his or her dependents, and protection will facilitate getting those funds.⁷⁰

In certain situations where the assets are less than $10,000, use of the small estate proceedings under C.R.S. § 15-14-118 may be a more appropriate and cost-effective alternative. Consideration should also be given to use of C.R.S. § 15-14-412 to authorize a protective arrangement or single transaction, which may be another appropriate alternative to full conservatorship.

§ 19.4.3—Venue

Venue for the purposes of conservatorship, or protective proceedings, differs slightly from that of guardianship. Venue for protective proceedings is appropriate in the respondent's county of residence, regardless of whether a guardian has been appointed elsewhere. If the respondent is a non-resident, then venue can be had in any county where the respondent has property.⁷¹

§ 19.4.4—Priority — Who May Serve As Conservator

Priorities for purposes of conservatorship differ subtly from those in guardianship. In either type of proceeding, the statutory priorities remain as guidelines that are not binding upon the court. The court can appoint an individual of lower priority or no priority at all (such as the judicial district's public administrator or a private fiduciary) for good cause shown.⁷² Among individuals having equal priority, the court should select the person who is best qualified to serve. A conservator must be 21 years of age or older, but need not be a resident of Colorado.⁷³ As with priorities under guardianships, the order of priority changed with the adoption of the Colorado Uniform Guardianship and Protective Proceedings Act so that the spouse is not automatically presumed to have highest priority. The statutory order of priority⁷⁴ for appointment as conservator follows:

1) A conservator, guardian of the estate, or other court-appointed fiduciary from the jurisdiction where the protected person resides;
2) A person nominated as conservator by the respondent, including a specific nomination as conservator if made in a durable power of attorney;
3) An agent appointed under a general durable power of attorney for property or in a designated beneficiary agreement;
4) The spouse of the respondent;
5) An adult child of the respondent;
6) A parent of the respondent; and
7) An adult who has resided with the respondent for more than six months immediately preceding the filing of the petition.

In addition, a pre-existing conservator, spouse, adult child, or parent may transfer his or her priority to a third party by written designation.⁷⁵ There is no comparable right to transfer priority under guardianship unless the spouse or parent is predeceased. Where the respondent's nomination of a conservator is at issue, the nomination only creates priority if the respondent had sufficient capacity to express a preference at the time the nomination was made.⁷⁶ This serves to temper the effects of undue influence and written instruments executed shortly before or after the individual may have lost capacity. In In re Estate of Runyon,⁷⁷ where there had been no testimony by the respondent or by medical experts as to the respondent's capacity to nominate, the court of appeals remanded with instructions to hold such an evidentiary hearing.

In addition to establishing priorities among those who may serve as conservators, certain prohibitions exist as to who may serve. For obvious reasons of inherent conflict of interest, an owner, operator, or employee of a long-term care facility is prohibited from serving as conservator unless related to the respondent by blood, marriage, or adoption.⁷⁸

The general prohibition against professionals serving in dual roles applies in conservatorships as well as guardianships. Professionals generally may not serve as both conservator and guardian, conservator and direct service provider, or guardian and direct service provider.⁷⁹ This prohibition against serving in dual roles does not apply to family members, ironically. Neither a conservator nor guardian may hire the same person to act as both care manager and direct service provider, regardless of whether the conservator or guardian is a professional or a family member. In many instances, it may be more cost effective and efficient to have a single professional serving in both capacities as conservator and guardian. The limited availability of qualified professional fiduciaries in some parts of the state may also dictate against such prohibitions. Consequently, the court has a safety valve and may always waive the prohibition for good cause shown and appoint a single professional to serve in both capacities. Increased reporting requirements under the Colorado Uniform Guardianship and Protective Proceedings Act for both conservators and guardians also help to reduce abuse of fiduciary authority by both professionals and family members.

§ 19.4.5—Procedure for Court Appointment of Conservator

The Petition for Appointment of Conservator - Adult (JDF 876) may be filed by the respondent, anyone interested in the respondent's affairs, or anyone adversely affected by the lack of management over the respondent's assets, which would include creditors. The petition should specify the basic information identifying the respondent and the petitioning party, including the nature of the petitioner's interest. A statement as to the property and its approximate value, and the income of the respondent, should be included along with an explanation of the need for a conservator. The proposed conservator should be identified and the basis for that person's priority stated.⁸⁰

After the Petition for Appointment of Conservator - Adult is filed and the $199 filing fee paid, the matter is set for hearing. The practitioner also must prepare a proposed Order Appointing Conservator for Adult (JDF 878), the Acceptance of Office (JDF 805), and Letters of Conservatorship - Adult (JDF 880).

The Letters of Conservatorship serve as proof to third parties of the conservator's legal authority. Unlike Letters of Guardianship, where only a few certified copies may be needed, practice dictates that several certified copies of the Letters of Conservatorship are often necessary, as each out-of-state financial institution, insurance company, and brokerage house is likely to insist on having a certified copy. If the conservatorship estate will include real property, it is advisable to record the Letters of Conservatorship to establish public record of the conservator's authority and to limit unauthorized loans against the property.

If the proposed conservator is a non-resident of Colorado, the Irrevocable Power of Attorney Designating Clerk of Court as Agent for Service of Process (JDF 721) is also required. This enables the court to assert jurisdiction over the non-resident conservator so that neither the court nor others need jump through hoops to serve the conservator.

§ 19.4.6—Acceptance of Office

See § 19.3.7, "Acceptance of Office."

§ 19.4.7—Court Visitors

A change from the previous statute makes appointment of a visitor mandatory for adult protective proceedings, with one narrow exception.⁸¹ The court visitor performs a vital function in the checks and balances upon the respondent's due process rights. The visitor essentially serves as the "eyes and ears" of the court and is required to advise the court if the respondent requests an attorney or the visitor thinks that appointment of an attorney is advisable. The...