Chapter 19 - § 19.3 • GUARDIANSHIP

• Jurisdiction: Colorado

§ 19.3 • GUARDIANSHIP

§ 19.3.1—Incapacity

Guardianship may be established by reason of incapacity for individuals 18 years of age and older. An "incapacitated person" is defined as:

[A]n 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.⁵

Accordingly, regardless of the cause, the petitioner in a guardianship proceeding must establish that the respondent lacks the ability to make or communicate responsible decisions. The burden of proof is upon the petitioning party by clear and convincing evidence.⁶ Following such a determination, the court is required by statute to set forth its findings of fact concerning the nature and degree of incapacity, and to consider the least restrictive means of providing protective services based upon the degree of incapacity.⁷ If a limited guardianship is imposed, the restrictions will appear upon the Order Appointing Guardian for Adult (JDF 848) and the Letters of Guardianship - Adult (JDF 849).

§ 19.3.2—Duties, Powers, and Limitations of Guardians

The duties, powers, and limitations of the guardian are generally enumerated at C.R.S. §§ 15-14-314 through -317. Unless otherwise limited in the Letters of Guardianship, the guardian has authority to make decisions regarding the ward's support, care, education, health, and welfare. The guardian is entitled to custody of the ward, and may determine the ward's dwelling in Colorado. However, with the adoption of the Colorado Uniform Guardianship and Protective Proceedings Act, the guardian's authority to change the ward's residence outside of this state is now limited, requiring express authorization by the court.⁸

The guardian has no duty to provide from his or her own funds for the support of the ward, unless there is a separate pre-existing duty to do so. Guardians should be instructed to always disclose their guardianship authority to avoid inadvertently assuming personal liability.⁹ The guardian is not liable to third parties for the acts of the ward solely due to the relationship, except as specifically provided by law. The guardian is obligated to take reasonable care of the ward's possessions and to initiate protective proceedings for property if in need of protection. A guardian may apply for benefits due to the ward or seek support for the ward. If a conservator is appointed, the conservator may initiate such proceedings. If no conservator is appointed, the guardian has the added duty to account for the ward's money and assets in the guardian's possession or control.¹⁰ The simple check register format typically used in accounting for decedent's estates (JDF 942) is generally sufficient, as opposed to the more involved Conservator's Report (JDF 885).

Unless otherwise restricted, a guardian may admit the ward to a nursing home without the need for a hearing or further court order. By the same token, a carefully drafted order may limit the guardian's ability to authorize such placement in a nursing home without prior court order. Take care to note that specific civil commitment statutes apply for admission of the ward to a mental health-care institution or facility. A guardian cannot authorize mental health care and treatment for mental illness over the objections of the ward without complying with these statutes.¹¹ Special requirements also exist for wards with developmental disabilities,¹² and for treatment of wards suffering from alcoholism.¹³ These restrictions appear on the face of the Order Appointing Guardian for Adult (JDF 848).

The extent to which the guardian may give consent for medical or other professional care is determined by the court, considering the ward's wishes and limiting unnecessary or excessive treatment. The findings of the court should, whenever feasible, grant to the guardian only those powers necessitated by the ward's limitations and demonstrated needs. This is consistent with the underlying philosophy of limited guardianships and least restrictive alternatives as found in the Colorado Uniform Guardianship and Protective Proceedings Act. The order of appointment should encourage the development of the ward's maximum self-reliance and independence.¹⁴

Sometimes it is appropriate for the guardian's authority to be broad and unlimited, permitting the full authority under the guardianship statutes. In other situations, the authority should be narrowly circumscribed, such as when a medical consent may be required for emergency treatment of a diabetic who is refusing care. Once the ward is re-hydrated and the electrolytes are balanced, the ward is often quite capable of making medical decisions again. Limitations on the guardian's authority may be specific and limited to certain acts, such as authorizing emergency medical treatment or placement decisions. Limitations may also be imposed for a specific period of time, constituting a "trial guardianship." For example, the court may limit the guardianship to a period of six months, at which time the need for continuing the guardianship or modifying the scope of the guardian's authority will be reviewed by the court.

A court may specifically authorize or direct a guardian to consent to the adoption or marriage of the ward;¹⁵ however, absent such specific authority, a guardian probably does not have such authority. Either a guardian or a conservator may petition the court for authority to commence a dissolution of marriage or legal separation. The court should only grant this authority if the ward consents. The court may also grant the guardian such authority if the ward is incapable of consenting if, after notice and hearing, it is determined to be in the best interest of the ward based upon evidence of abandonment, abuse, exploitation, or other compelling circumstances.¹⁶ If the spouse is also the guardian or conservator, an inherent conflict of interest arises. It may be necessary to appoint a successor or limited guardian, conservator, or guardian ad litem to represent the ward's interest through the dissolution of marriage.

Guardians have increased reporting duties under the Colorado Uniform Guardianship and Protective Proceedings Act. Within 30 days of appointment, the guardian is required to provide notice of the appointment with a copy of the Order Appointing Guardian to the respondent and all persons identified in the petition.¹⁷ The Notice of Appointment of Guardian and/or Conservator is a specific form (JDF 812) that must also advise the respondent and interested persons of the right to request termination or modification of the guardianship.

A guardian is also required to file a personal care plan with the court within 60 days of appointment and annually thereafter.¹⁸ The care plan is contained in the Guardian's Report - Adult (JDF 850) and can often be completed by the guardian with minimal involvement by counsel. (See § 19.3.15, "Guardian's Report.")

§ 19.3.3—Powers of Attorney Under Guardianships

Powers of attorney for medical decisions pose an interesting issue in the context of guardianship, if not revoked by the court at the hearing. An agent under a pre-existing medical power of attorney is required to consult with the guardian regarding personal care decisions.¹⁹ Such an agent is bound by the same restrictions imposed upon the guardian regarding treatment for mental illness, developmental disabilities, and alcohol abuse under C.R.S. § 15-14-316(4). However, the guardian generally may not revoke or otherwise circumvent medical treatment decisions by the ward's agent pursuant to a validly executed medical power of attorney under C.R.S. § 15-14-506, if signed by the ward prior to the incapacity.²⁰ A guardian may still seek to have the court remove the agent for medical decision-making purposes, and the guardian retains the right that the principal would have had to revoke, suspend, or terminate an agent's authority for other personal care decisions.²¹ This limitation on the guardian's power should be contrasted with that of a conservator, who retains full authority to revoke an agent's authority under powers of attorney for property without the need for court intervention.²²

Guardians have the ability to delegate their authority to others under a power of attorney for a period not to exceed 12 months. However, a guardian may not delegate the authority to consent to the marriage or adoption of the ward.²³ Use of a power of attorney delegating guardianship authority may be extremely helpful if the guardian resides out of state, travels frequently, or wishes to engage the services of a professional care manager.²⁴

§ 19.3.4—Venue

Venue for guardianship proceedings is proper in the place where the respondent resides. If the respondent is already admitted to an institution pursuant to a court order (such as for a mental health certification), then venue may also be had in the county of the court issuing that order.²⁵ If the respondent is moving into an assisted-living or skilled nursing facility voluntarily, consider whether venue belongs in that county or the county of the individual's former residence. Consequently, consideration should be given prior to filing the guardianship petition as to where most of the continuing activity will occur.

For emergency guardianships, venue is appropriate in any county where the respondent is present. However, even though venue for an emergency guardianship may be proper, the court may not have venue to enter permanent guardianship orders if the respondent is a resident of another state. For example, an aging parent visiting from California is exhibiting signs of early dementia. Her well-intended daughter may obtain an emergency guardianship when her mother starts acting peculiarly and refuses necessary medical treatment. The...