Chapter 44 - § 44.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 44.1 • INTRODUCTION

§ 44.1.1—Scope

The Code made radical changes in the area of guardians and conservators regarding terminology and the degree of independence from court supervision the fiduciary enjoys after appointment.

In addition, it should be noted that the law in this area has been in a constant state of flux since the adoption of the Code, both in response to general needs for reform and in response to court decisions that clarified the requirements of due process to be afforded to respondents in both guardianship and conservatorship proceedings. The Code was substantially revised by the adoption of the Uniform Guardianship and Protective Proceedings Act, effective January 1, 2001. See § 44.1.2 for a summary.

This text, being more academic in nature, will not go into the details of guardianship and conservatorship practice in the courts. The reader is referred to the Judicial Department Forms (JDF), especially the format of the court visitor's report, JDF 810, and to Wade, Colorado Probate System, especially the special probate checklists for the processing of guardianship and conservatorship proceedings.¹

As to terminology, an "incapacitated person" is "an 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."² A "minor" under the Code is a person under the age of 18 years (note, however, that under C.R.S. § 15-14-431, a conservatorship for a minor does not terminate until the minor reaches age 21).³ A "protected person" is either a minor or an adult person under disability (including a confined person, a person detained by a foreign power, or a person who has disappeared) who is the subject of a protective proceeding, i.e., one for whom the appointment of a conservator or other protective order has been made.⁴ A "ward" is a person for whom a "guardian" has been appointed, and if the appointment is solely by reason of minority, he or she is called a "minor ward." A "guardian" is one who has qualified as guardian of a minor or incapacitated person pursuant to court or prior appointment by a parent or spouse, but excludes a guardian ad litem.⁵ A "conservator" is a person who is appointed by the court to manage the property of a protected person.⁶

After letters have been issued to a conservator for a person under disability, his or her activities and duties regarding the property of the ward are quite similar to those of a trustee or personal representative, but there may be additional responsibilities as to the person of the ward. Since the duties with regard to property are similar to those of a trustee or personal representative, there will be little discussion of such matters as inventory, appraisal, management of the estate, sale and mortgage of property and the like (in all of which the court is little involved), since they have been covered in connection with decedents' estates, but where a conservator has duties that would not properly pertain to a decedent's estate, the duties will be mentioned. The conservator will have little contact with death tax matters, although he or she occasionally will be involved in gift tax matters and may have to take tax issues into account in determining a plan for management of the protected person's estate. (See § 44.4.10.)

§ 44.1.2—Revised Uniform Guardianship And Protective Proceedings Act

The 2000 session of the legislature adopted the Revised Uniform Guardianship and Protective Proceedings Act.⁷ Legal research in this area is difficult for several reasons. The first is that the Colorado version of the Revised Uniform Act departs substantially from the provisions of the Uniform Act itself. Secondly, the numbering sequence in the Revised Act departs from the numbering sequences in the original Act.

The provisions of the new Act will confirm some of the discussion of the former Act discussed below in this chapter, but there will also be some departures from the present statutory scheme. The text below will have to be read in the context of the new statutory changes, which are summarized here.⁸

Some history may be helpful. Originally the Guardianship and Protective Proceedings Act was simply a part of the Uniform Probate Code (Article 14). Later, it was modified and adopted as a free-standing uniform act. The original Colorado Probate Code, as amended, together with the practice under the Code, emphasized the role of the court visitor and also emphasized the concept of limited guardianship. The Revised Uniform Guardianship and Protective Proceedings Act picked up on some of the Colorado law and practice, particularly court visitor practice, and the provisions of the Colorado Probate Code, which did not make appointment of counsel mandatory in all cases. These provisions on the appointment of counsel have been particularly controversial. The original version of the Revised Uniform Act left appointment of counsel discretionary with the court, except in cases where counsel was requested by the respondent or the court visitor. The Revised Uniform Act as finally approved leaves the question of appointment of counsel optional with the state, with one option requiring appointment of counsel in all cases. The Colorado version of the Revised Act is consistent with prior Colorado law and practice and requires appointment of counsel in most, but not all, cases. This is discussed in the text at § 44.3.1.

The new Act is divided into four parts. The first part combines general provisions including definitions. The second part deals with guardianship of a minor. The third part deals with guardianships of adult incapacitated persons. The fourth part deals with conservatorships.

The following are some of the changes and highlights:

• Under C.R.S. § 15-14-102(5), there is a new functional definition for incapacity.
• C.R.S. § 15-14-104, the facility of transfer provisions, now includes the Uniform Custodial Trust Act as well as the Uniform Transfers to Minors Act.
• Under C.R.S. § 15-14-105, the time period for delegation of parental powers is increased from nine to 12 months.
• C.R.S. § 15-14-107, the section on jurisdiction, deals more specifically now with multi-state cases.
• C.R.S. § 15-14-109(2) provides for consolidation of the guardianship and conservatorship matters in a single proceeding.
• C.R.S. § 15-14-112 clarifies the power of the court to appoint additional guardians and conservators, and to designate successor guardians and conservators, either to be presently effective or to be effective on a future event.
• Under C.R.S. § 15-14-115, regarding the appointment of a guardian ad litem, the court shall state on the record the duties of the guardian ad litem and the reasons for his or her appointment.

Regarding the appointment of guardians for minors, the Act makes the following principal changes:

1) It lowers the minor's age for consent or non-consent from 14 years to 12 years.
2) It allows an existing non-parent guardian (as well as a parent guardian) to designate a successor guardian by will or otherwise.
3) It confirms and extends the practice of the "springing" guardianship; that is, the ability of a presently acting guardian to designate a successor to act in the event of his or her death or incapacity.
4) It appears, under C.R.S. § 15-14-204, to enlarge the cases where, in the best interests of the child, a parent can be denied guardianship (beyond the past exceptions of termination of parental rights, abandonment, and unwillingness or inability to exercise parental rights).

In 2003, C.R.S. § 15-14-204(5) was amended to enlarge the time for emergency guardianships from 30 to 60 days (the same as for incapacitated adults).

Regarding guardianships for incapacitated adults, the following are the highlights:

• Under C.R.S. § 15-14-304, there are new provisions for the contents of a petition. This is covered in JDF 841.
• Under C.R.S. § 15-14-305 (Preliminaries to hearing), the court is to appoint a lawyer who is to represent the respondent if (1) requested by the respondent; (2) recommended by the court visitor; or (3) otherwise as determined by the court. The statute also, in effect, codifies the Colorado court visitor program.
• Under C.R.S. § 15-14-310 (priority of appointment), there is more emphasis on the respondent's nominee, including designation of agents under medical and general powers of appointment.

There are also now some formal limitations on who can be appointed guardian. There is, for example, now a prohibition against the appointment of the respondent's long-term care provider. In addition, without specific findings for good cause shown, the court may not appoint the same person as guardian and conservator, guardian and direct care provider, or conservator and direct care provider.

Further, the guardian and conservator cannot employ the same person to act as both care manager and direct service provider.

C.R.S. § 15-14-311 requires the appointment of a guardian by clear and convincing evidence and continues the limited guardianship concept.

C.R.S. § 15-14-312 tightens what had previously been the provisions of the statute on temporary guardianships. The title "temporary guardian" is, in threshold proceedings, replaced with the concept of an emergency guardian, and the office of temporary guardian under C.R.S. § 15-14-313 is now limited to a successor or substitute guardian.

C.R.S. § 15-14-315.5 spells out the authority and grounds for a guardian to seek a dissolution of the incapacitated person's marriage.

The statute generally goes to some pains to clarify the priority of authority as between court-appointed fiduciaries and agents previously designated by the respondent under medical and property managements powers of attorney. For example, under C.R.S. §...