Chapter 44 - § 44.2 • GUARDIANSHIP OF MINORS
| Jurisdiction | Colorado |
§ 44.2.1—Kinds Of Guardians
A guardian for a minor may be appointed in two ways: by the will or non-testamentary writing (with two witnesses) of a parent, or by the court. The Code recognizes that some of its provisions may be affected by certain provisions of the Colorado Children's Code.39 A guardian appointed by the will of a parent is called a testamentary guardian, and such an appointment apparently is effective unless the minor is married or the minor objects. The venue for court appointment is where the minor resides or is present.40
In Matter of O.R.L.,41 the issue was the grounds for appointment of a temporary guardian under C.R.S. § 15-14-207(3) (now C.R.S. § 15-14-204(4)). The court had questions about the suitability of a boy's mother. The trial court found that the mother had abandoned the child under the provisions of C.R.S. § 15-14-204(1)(c) (now C.R.S. § 15-14-204(2)(c)), thus requiring the appointment of a permanent guardian and, alternatively, that it was in the boy's best interests that a guardian be appointed without regard to abandonment. A divided court of appeals affirmed without determining the abandonment issue. The trial court had the authority to appoint a temporary guardian under C.R.S. § 15-14-207. That section stands alone and does not incorporate the general grounds for appointment of a non-parent as a guardian. The dissent disagreed and would have found that C.R.S. § 15-14-207 does incorporate the requirements of the general guardianship section (which would allow the appointment of a non-parent only in case of abandonment or termination of the parent-child relationship). The dissent would construe the temporary guardianship statute to allow the appointment of a non-parent as temporary guardian only in cases of emergency and where no parent is available to act.
§ 44.2.2—Procedure For Appointment Of Guardian
The power to appoint a guardian by will or non-testamentary writing for an unmarried minor is in the survivor of the parents, unless the surviving parent is incapacitated. If both parents are dead, the appointment by the survivor has priority. An appointment in the will of a nonresident is recognized in this state. The guardian merely files an acceptance of the appointment with notice to the minor42 and to the person having custody of him or her or the nearest adult relative. An appointment by the latest executed will or other instrument takes precedence over appointment by a prior writing.43 A minor 12 years of age or older may prevent the effectiveness of an appointment by will by objecting to it, or the appointment may be terminated by filing a written objection in the court in which the will is probated as provided in the Code.44 An objection may be withdrawn, but even if not withdrawn the court nevertheless may appoint the testamentary designee or any other suitable person.45 While a testamentary appointment may have a preference, the court may nevertheless appoint a guardian upon failure of the testamentary appointment. The court shall take into consideration the wishes of the minor in the testamentary appointment, but in the final analysis will act in what it believes to be the best interest of the minor.46
The procedure for court appointment requires notice in accordance with the general notice provisions of the Code to the minor if 12 years of age or older, the person having his or her principal care and custody for the previous 60 days, and any living parent. The court may appoint a guardian for an unmarried minor where (1) the parent-child relationship has been terminated; (2) legal custody has been suspended by court order; or (3) the minor is found to be abandoned by the parents or custodial person.
If the court finds that the person seeking appointment is qualified, that venue is proper, and that notice has been given properly, the court may make the appointment or may dismiss the proceeding and take such other action as it may find to be in the best interest of the minor, and may appoint a temporary guardian for not more than six months. At any time, if the court is dissatisfied, it may appoint an attorney to represent the minor, and at any time may appoint another temporary guardian for not more than six months. The Code indicates clearly that the overriding consideration in the appointment of a guardian is the best interest of the minor.47 It is probable that a trust institution cannot properly become the guardian of the person,48 but this does not mean that such an institution, as conservator, will not participate in decisions regarding the welfare of the minor. A guardian, when appointed by will or court, by accepting the appointment becomes subject to the jurisdiction of the court in any proceeding relating to the guardianship, and the letters shall show whether the appointment is by will or by the court.49
It should be noted that the Code provides for delegation by a parent, through the use of a power of attorney, to another person, for a period not exceeding 12 months, of any of his or her powers regarding the care, custody, or property of a minor child.50 This has been used primarily to facilitate family decisions, when a change of residence is involved, to leave minor children in their existing school settings by delegation of parental responsibilities to close friends or relatives.
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