Chapter 53 - § 53.19 • CONSERVATOR-CREATED WILLS

• Jurisdiction: Colorado

§ 53.19 • CONSERVATOR-CREATED WILLS

After notice to interested persons and upon express authorization of the court, a conservator may make, amend, or revoke a protected person's will. C.R.S. § 15-14-411(1)(g). The greater the extent of notice, the lesser the risk of litigation over the final product. Thus, the definition of "interested person" found at C.R.S. § 15-10-201(27) is a good starting point in this regard. At a minimum, notice should be given to all legal heirs of the protected person and all beneficiaries identified in both the new conservator-created will and in any prior testamentary instruments. Notice via publication might also be considered in some unique cases. In this connection, the conservator must comply with C.R.S. § 15-11-502 or § 15-11-507, which prescribe, respectively, procedures and requisites for will execution and will revocation. C.R.S. § 15-14-411(2). The governing statute further states:

The court, in exercising or in approving a conservator's exercise of the powers listed in . . . this section, shall consider primarily the decision that the protected person would have made, to the extent that the decision can be ascertained. To the extent the decision cannot be ascertained, the court shall consider the best interest of the protected person.

C.R.S. § 15-14-411(3).

Other relevant, statutory factors to be considered by the court include:

(a) The financial needs of the protected person and the needs of individuals who are in fact dependent on the protected person for support and the interest of creditors;
(b) Possible reduction of income, estate, inheritance, or other tax liabilities;
(c) Eligibility for governmental assistance;
(d) The protected person's previous pattern of giving or level of support;
(e) The existing estate plan;
(f) The protected person's life expectancy and the probability that the conservatorship will terminate before the protected person's death; and
(g) Any other factors the court considers relevant, including the best interest of the protected person.

Id.

§ 53.19.1—Role of Special Conservators

Wills covered by this section should be prepared by special conservators appointed by the court to act in this limited role pursuant to C.R.S. § 15-14-412(3). Estate planners and/or elder law attorneys generally make good candidates to serve in this regard.

§ 53.19.2—Procedural Issues

Procedures to be followed have been outlined previously in a number of professional articles on this topic. See, e.g., H. Tucker...