Chapter 44 - § 44.3 • GUARDIANSHIP OF INCAPACITATED PERSONS
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§ 44.3.1—Appointment And Termination Of Guardian For Incapacitated Person
The Code provides for the appointment of guardians for incapacitated persons in much the same manner as for minors. One purpose of the Code here is to provide comfort, predictability, and continuity in the case of adult incapacitated children (often in institutions) where the parents had been the responsible care managers. It provides the testamentary appointment by a parent of the incapacitated person and for notice of acceptance by the appointee, much as in the case of a minor, and it authorizes the spouse of such a person to make a similar designation by will or by a writing acceptable to the court, with preference for the designation by the spouse over the designation by a parent, and in either case a testamentary designation by a will probated at the testator's domicile will be recognized. If there is an objection to the testamentary designation, the appointment is terminated, but despite the objection the court nevertheless may appoint the designee.70 Venue is in the county where the incapacitated person resides, or if he or she is admitted to an institution pursuant to court order, it is where the court sits.71
In 2009, the legislature recognized the right of a single person to designate a non-married person as his or her "designated beneficiary," with rights equivalent to those of a surviving spouse. Under C.R.S. § 15-14-310, such a designated beneficiary may be given the same status as a spouse. See § 17.1.
Effective May 1, 2013, the legislature enacted C.R.S. §§ 14-15-101, et seq., which authorizes any two unmarried adults to enter into a civil union. The law gives a partner in a civil union spousal status, including priority for appointment as guardian.
The procedure for appointment of a guardian for an incapacitated person necessitates a determination of incapacity, which is accomplished by a petition to the court by the incapacitated person or by a person interested in his or her welfare.72 If the alleged incapacitated person does not have an attorney, the court may appoint one. The court may appoint an examining physician and a visitor, the duty of the visitor being to interview the physician and the proposed guardian, to visit the place of detention or residence, and to report to the court. The appointment, investigation, and report of the visitor is a critical element in the guardianship process. It is designed to provide the court with a knowledgeable, independent report on the respondent and the circumstances of the petition for guardianship. It ensures that the court will obtain critical information, not limited to that offered in evidence by the petitioner and the respondent. Based on the report of the visitor, the court is in a better position to exercise its discretion and appoint a physician or an attorney or a guardian ad litem. It should be noted that, under the statute, the court must appoint an attorney to represent the respondent when so requested by the respondent, or whenever the respondent expresses a desire to contest a petition or object to the appointment of the proposed guardian or his or her duties and powers. In practice, an attorney is also appointed when so recommended by the visitor. This system allows the appointment of counsel in appropriate cases, but avoids the cost and confusion of an unnecessarily adversarial situation in those cases in which the court is satisfied that no purpose would be served by the appointment of an attorney. These provisions regarding counsel are outside the mainstream of guardianship reform standards that require the appointment of attorneys in all cases. It is submitted that the Colorado Probate Code works to the advantage of respondents and their families and allows the court's decision as to due process appropriately required to be responsive to the circumstances, including the extent (or limitation) of the guardian powers being sought.
Under C.R.S. § 15-14-110, a nominee for guardian or emergency guardian must file with the court an Acceptance of Office detailing the nominee's specified criminal history, civil protection or restraining order history, civil judgment history, and court appointment history. The nominee must attach a criminal history record check by the Colorado Bureau of Investigation (CBI), a credit report, and verification that all the information is accurate and complete. The court may waive these requirements for good cause shown when making an emergency appointment of a guardian. The court is authorized to require additional background information including a fingerprint-based criminal history record check through the CBI and the Federal Bureau of Investigation.
Where a doctor's letter is utilized as one evidentiary basis to support a petition for guardianship, C.R.P.P. 27.1 provides the required contents.
The visitor's report must be made promptly after his or her appointment and be provided to the court, the petitioner, and the respondent. The report shall include the following:
(a) A recommendation as to whether a lawyer should be appointed to represent the respondent and whether a guardian ad litem should be appointed to represent the respondent's best interest;...
(b) A summary of daily functions the respondent can manage without assistance, could manage with the assistance of supportive services or benefits, including use of appropriate technological assistance, and cannot manage;
(c) Recommendations regarding the appropriateness of guardianship, including whether less restrictive means of intervention are available, the type of guardianship, and, if a limited guardianship, the powers to be granted to the limited guardian;
(d) A statement of the qualifications of the proposed guardian, together with a statement as to whether the respondent approves or disapproves of:
(I) The proposed guardian;(e) A statement as to whether the proposed dwelling meets the respondent's individual needs;
(II) The powers and duties proposed; and
(III) The scope of the guardianship;
(f) A recommendation as to
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