Chapter 44 - § 44.4 • CONSERVATORSHIP
| Jurisdiction | Colorado |
§ 44.4.1—Appointment And Duties Of Conservator
Upon petition,98 after notice and hearing, the court may appoint a conservator for a minor who has property to be managed, or whose funds may be needed for his or her support or education and the court in similar circumstances may appoint a conservator for an adult incapacitated person. The term "disability" includes not only mental or physical disability but also detention by a foreign power and disappearance, and if the person under disability has property to manage and preserve, a conservator should be appointed.99 The court has jurisdiction from the time notice of a proceeding is served until termination of the proceeding to determine the need for conservatorship and to determine how the estate of the disabled person shall be managed and used for the benefit of that person and his or her dependents (after such a determination, the disabled person is called a "protected person"), and it has concurrent jurisdiction over claims against that person and his or her estate and over the title to any property. Venue shall be in the county of residence, but if the respondent is a nonresident, it is where he or she has property.100
The petition for appointment or for any other protective order may be made by the person to be protected or by anyone interested in his or her welfare, including a parent, guardian, or custodian or any person who would be adversely affected by lack of management of his or her property. Former C.R.S. § 15-14-303(1), allowing any person interested in the welfare of a person to petition, was construed in Estate of Edwards101 (phrase "interested person" is imprecise; status as a creditor does not, per se, disqualify one from being so interested). The petition shall set forth such matters as name, age, residence, and address of the respondent; name and address of his or her guardian, if any; name and address of the nearest relative known to the petitioner; a general statement of his or her property and the value of it, including employee benefits to which he or she is entitled; and the reason for seeking a protective order. If the appointment of a conservator is requested, the name and address of the proposed conservator should be given.102 Unless an adjudication or certification of mental illness is in effect, notice shall be given to the respondent, his or her spouse (if any), or parents, at least ten days before the date of the hearing, if they are within the state, otherwise by certified or registered mail or publication as provided in C.R.S. § 15-10-401 (1973). The respondent may not waive notice unless he or she attends the hearing.103 Any person interested in the welfare of the respondent may file with the clerk of court a demand for notice of certain proceedings in the matter, and the registrar shall mail a copy of the demand to the conservator when appointed.104 Any governmental agency that is paying or planning to pay benefits to the respondent is classed as an interested person.105 If a conservator is to be appointed for a minor, the court may arrange for legal representation for the minor, with the powers and duties of a guardian ad litem. Upon receipt of a petition for conservatorship, the court may, in its discretion, appoint counsel who then has the power of a guardian ad litem.106 If the alleged disability is mental illness or mental deficiency, the court may also, in its discretion, appoint a physician and may send a visitor to interview the respondent. To avoid due process questions, the court should appoint a visitor in all cases, as in guardianships, and, based upon the visitor's report, appoint counsel and a physician as appropriate. Since the visitor serves a function similar to a guardian ad litem, the court should consider defining the role of any attorney appointed or otherwise acting as one of an advocate for the respondent and not as a guardian ad litem. A similar arrangement for legal representation is required if mental illness is the occasion for the proceeding (since the proceeding does not affect personal liberty as in the case of appointment of a guardian), and in addition the court may require a medical examination and an interview with a visitor, who may be the guardian ad litem or an officer or employee of the court. If convinced that a conservator is needed, the court shall appoint a conservator or enter another protective order.107 While a petition for appointment of a conservator is pending, the court has power to preserve and to apply the property of the respondent to his or her use and that of his or her dependents, and if the protected person is a minor, the court has all the powers necessary to devote the property to his or her own use or to that of the minor's dependents. If the protected person is mentally ill, the court has all the powers over his or her property that the protected person would have if not under disability, except the power to make a will (although the creation of a will substitute is authorized). See § 44.4.10. These powers include those to make gifts, give releases, create trusts for the protected person, and in general to do with his or her property anything that the court deems proper on his or her behalf. The powers include dealing with insurance policies and powers of appointment. The Code should be consulted as to the plenary powers of the court over the protected person's property and similar rights. The Code states that the protective order does not affect the capacity of the protected person. (Query: Does the Code provision affect the power to enter into a contract or to make a will?108 ) The exercise of some of these powers can be had only by court order after prior notice and hearing.
Although the standards for appointment of a conservator or a guardian involve a determination of mental and physical status, it was held in Neher v. Neher, 2015 COA 103, that medical testimony was not necessarily required at the hearing for appointment of a fiduciary.
In 2013, C.R.S. §§ 15-14-406(6) and -406.5 (conservatorship preliminaries to hearing) were amended to mirror the guardianship statute by providing specifically that while the conservatorship petition is pending, the court may enter orders protecting the respondent's property and may appoint a special conservator in this regard. The court may also authorize a professional evaluation, and should do so if one is requested by the respondent.
A nominee for conservator or special conservator 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 a 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 special conservator. 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.
It may occur on occasion that it is not necessary to appoint a conservator in order to accomplish a single transaction on behalf of a protected person, but that some means should be available for accomplishing the transaction on behalf of the protected person, such as entering into a trust arrangement, buying an annuity contract, or entering into a long-term lease. The Code permits this by the appointment of a special conservator or by the entry of a court order without the appointment of a fiduciary. It would seem that the settlement of a personal injury claim could be accomplished in this way (although third parties may insist on the appointment of a fiduciary to execute release documents).109
Where a doctor's letter is utilized as one evidentiary basis to support a petition for conservatorship, C.R.P.P. 27.1 provides the required contents.
Without detailing the priorities, the Code provides for the appointment of suitable individuals over the age of 21 years, and corporations, to act as conservator, and the court may act without regard to the priorities stated.110 Upon the appointment, the conservator shall file with the court an acceptance of the appointment, which involves submission to the jurisdiction of the court.111 When a conservator is appointed, it is the duty of the court, if appropriate, to notify the superintendent of the institution to which the respondent was committed of the appointment with the name and address of the conservator, or if the name of the institution is unknown, to notify the director of the Department of Human Services, to facilitate the collection of charges for patient care.112
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. This applies to conservatorship appointment. 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 to a civil union spousal status, including priority for appointment as conservator.
The bond requirements and arrangements for surety or provision in lieu of surety are similar to those for an administrator of a decedent under pre-Code practice, and the terms of the bond and proceedings thereon likewise are similar,113 and the acceptance of appointment has a similar effect.114 The Code provides for reasonable compensation for the conservator and professionals involved in the appointment proceeding, with court approval.115 The Code provides for filling a vacancy in the office of conservator and for removal and appointment of a successor.116
Any person interested in the welfare of the protected person may...
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