Chapter 21 - § 21.2 • PROBATE AND APPOINTMENT OF THE GUARDIAN AD LITEM

• Jurisdiction: Colorado

§ 21.2 • PROBATE AND APPOINTMENT OF THE GUARDIAN AD LITEM

There is not a specific definition for a guardian ad litem found in the Probate Code; however, several statutes and cases provide descriptions of the GAL. The Colorado Rules of Probate Procedure (C.R.P.P.) direct the court to the statutes for appointment of a GAL. C.R.P.P. 15 states that "[t]he court may appoint a guardian ad litem only in conformity with section 15-10-403(5), 15-14-115 or 15-18-108(2)(a), C.R.S. For appointments pursuant to 15-10-403(5) and 15-14-115, C.R.S., the court must state on the record its reasons for the appointment." Further, C.R.P.P. 15 states that "[i]n cases of uncontested probate of wills, no guardian ad litem shall be appointed for a minor, incapacitated or protected person who takes as much or more under the will than by intestacy."

The court has broad discretion to appoint a GAL at any point of a proceeding. The Colorado Probate Code gives the court authority for the appointment of a GAL in C.R.S. § 15-10-403(5), which states:

At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, protected, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation appears. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.

The Colorado Uniform Guardianship and Protective Proceedings Act also provides broad discretion for the appointment of a GAL in C.R.S. § 15-14-115, as follows:

At any stage of a proceeding, a court may appoint a guardian ad litem if the court determines that representation of the interest otherwise would be inadequate. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several individuals or interests. The court shall state on the record the duties of the guardian ad litem and its reasons for the appointment.

Both of these statutes state that the GAL may be appointed to represent the "interest" of a person. The interest represented may be that of "a minor, an incapacitated, protected, unborn, or unascertained person, or a person whose identity or address is unknown."² The appointment of a GAL provides the court an important ability to protect the rights of someone who would otherwise be inadequately represented. A GAL may be appointed to take action for the "qualified patient" in cases where the validity of a Declaration as to Medical or Surgical Treatment, also known as a living will, is challenged. In that circumstance, C.R.S. § 15-18-108(2)(a) states:

In proceedings pursuant to this section, the court shall appoint a guardian ad litem for the qualified patient, and the guardian ad litem shall take such actions as he or she deems necessary and prudent in the best interests of the qualified patient and shall present to the court a report of his or her actions, findings, conclusions, and recommendations.

The question of whether both a GAL and an attorney can or should represent a person has been addressed in several cases. In Department of Institutions v. Carothers, the Colorado Court of Appeals held that the probate court's appointment of both a GAL and an attorney for an incapacitated person was not an abuse of discretion.³ In that case, a guardianship was instituted to seek permission to withhold life sustaining treatment from an incapacitated person who did not understand the nature and significance of the proceedings...