PROTECTION OF PROPERTY OF PROTECTED PERSON

• Jurisdiction: Colorado

PART 4 PROTECTION OF PROPERTY OF PROTECTED PERSON

Editor's note: Section 15-17-103 provides that parts 1 to 4 of this article, as repealed and reenacted effective January 1, 2001, apply to any and all estates, trusts, or protective proceedings whether created or filed prior to or on or after January 1, 2001.

Law reviews: For article, "Statutory Custodianship Trusts", see 13 Colo. Law. 786 (1984); for article, "The Revocable Living Trust Revisited", see 18 Colo. Law. 225 (1989); for article, "Trust Protection of Personal Injury Recoveries from Public Creditors", see 19 Colo. Law. 2187 (1990); for article, "Personal Injury Settlements With Minors", see 21 Colo. Law. 1167 (1992); for article, "Avoiding Living Probate", see 27 Colo. Law. 5 (March 1998); for article, "Highlights of Colorado's New Guardianship and Conservatorship Laws", see 30 Colo. Law. 5 (Jan. 2001); for article, "Personal Injury and Workers' Compensation Settlements for Incapacitated Persons: Part I", see 30 Colo. Law. 43 (Jan. 2001); for article, "Personal Injury and Workers' Compensation Settlements for Incapacitated Persons: Part II", see 30 Colo. Law. 56 (Feb. 2001); for article, "Estate Planning Considerations when Distributing Assets from a Conservatorship Estate", see 32 Colo. Law. 55 (Aug. 2003); for article, "The Basics on Juveniles in Probate Court for Protective Proceedings", see 36 Colo. Law. 15 (Feb. 2007); for article, "Practical Solutions to Elder Financial Abuse and Fiduciary Theft", see 41 Colo. Law. 61 (Dec. 2012).

■ 15-14-401. Protective proceeding. (1) Upon petition and after notice and hearing, the court may appoint a limited or unlimited conservator or make any other protective order provided in this part 4 in relation to the estate and affairs of:

(a) A minor, if the court determines that the minor owns money or property requiring management or protection that cannot otherwise be provided or has or may have business affairs that may be put at risk or prevented because of the minor's age, or that money is needed for support and education and that protection is necessary or desirable to obtain or provide money; or

(b) Any individual, including a minor, if the court determines that, for reasons other than age:

(I) By clear and convincing evidence, the individual is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance, or because the individual is missing, detained, or unable to return to the United States; and

(II) By a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual or of individuals who are entitled to the individual's support and that protection is necessary or desirable to obtain or provide money.

Source: L. 2000: Entire part R&RE, p. 1802, § 1, effective January 1, 2001 (see § 15-17-103).

Editor's note: This section is similar to former § 15-14-401 as it existed prior to 2001.

ANNOTATION

Law reviews. For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Determination of Heirship by Special Proceedings and Temporary Conservationship", see 14 Colo. Law. 1781 (1985). For article, "Adult Guardianships: Protection of Constitutional Rights", see 15 Colo. Law. 820 (1986). For article, "Ethical Obligations of Petitioners' Counsel in Guardianship and Conservator Cases", see 24 Colo. Law. 2565 (1995). For article, "Legal Guidelines and Methods for Evaluating Capacity", see 32 Colo. Law. 65 (June 2003).

Annotator's note. Since § 15-14-401 is similar to § 15-14-401 as it existed prior to the 2000 repeal and reenactment of this part 4, relevant cases construing that provision have been included in the annotation to this section.

The trial court has a broad discretion in all matters relating to protected persons, which is exclusive. Sweeney v. Summers, 194 Colo. 149, 571 P.2d 1067 (1977).

A conservator may be appointed for a person other than a minor only if court makes specific factual finding that the ability to manage property is impaired. In re Estate of Hickle v. Carney, 748 P.2d 360 (Colo. App. 1987).

The appointment of a conservator under this section does not include a finding of "incapacity." In re Estate of Gallavan, 89 P.3d 521 (Colo. App. 2004).

Statute does not require medical evidence to make a proper determination of whether a person is impaired. A court can appoint a conservator without medical evidence of an impairment if the other requirements are met. Neher v. Neher, 2015 COA 103, 402 P.3d 1030.

Applied in Jenkins v. Mesa County Dist. Court, 620 P.2d 721 (Colo. 1980).

■ 15-14-402. Jurisdiction over business affairs of protected person. (1) After the service of notice in a proceeding seeking a conservatorship or other protective order and until termination of the proceeding, the court in which the petition is filed has:

(a) Exclusive jurisdiction to determine the need for a conservatorship or other protective order;

(b) Exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this state must be managed, expended, or distributed to or for the use of the protected person, individuals who are in fact dependent upon the protected person, or other claimants; and

(c) Concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and questions of title concerning assets of the estate.

Source: L. 2000: Entire part R&RE, p. 1802, § 1, effective January 1, 2001 (see § 15-17-103).

Editor's note: This section is similar to former § 15-14-402 as it existed prior to 2001.

ANNOTATION

Applied in Jenkins v. Mesa County Dist. Court, 620 P.2d 721 (Colo. 1980) (decided prior to 2000 repeal and reenactment).

■ 15-14-403. Original petition for appointment or protective order. (1) The following may petition for the appointment of a conservator or for any other appropriate protective order:

(a) The person to be protected;

(b) An individual interested in the estate, affairs, or welfare of the person to be protected, including a parent, guardian, or custodian; or

(c) A person who would be adversely affected by lack of effective management of the property and business affairs of the person to be protected.

(2) A petition under subsection (1) of this section must set forth the petitioner's name, residence, current address if different, relationship to the respondent, and interest in the appointment or other protective order, and, to the extent known, state or contain the following with respect to the respondent and the relief requested:

(a) The respondent's name, age, principal residence, current street address, and, if different, the address of the dwelling where it is proposed that the respondent will reside if the appointment is made;

(b) If the petition alleges impairment in the respondent's ability to effectively receive and evaluate information, a brief description of the nature and extent of the respondent's alleged impairment;

(c) If the petition alleges that the respondent is missing, detained, or unable to return to the United States, a statement of the relevant circumstances, including the time and nature of the disappearance or detention and a description of any search or inquiry concerning the respondent's whereabouts;

(d)(I) The name and address of the respondent's:

(A) Spouse or, if the respondent has none, an adult with whom the respondent has resided for more than six months within one year before the filing of the petition; and

(B) Adult children and parents; or

(II) If the respondent has neither spouse, adult child, nor parent, at least one of the adults nearest in kinship to the respondent who can be found with reasonable efforts;

(e) The name and address of each person responsible for care or custody of the respondent, including the respondent's treating physician;

(f) The name and address of each legal representative of the respondent;

(g) A general statement of the respondent's property with an estimate of its value, including any insurance or pension, and the source and amount of other anticipated income or receipts; and

(h) The reason why a conservatorship or other protective order is in the best interest of the respondent.

(3) If a conservatorship is requested, the petition must also set forth to the extent known:

(a) The name and address of each proposed conservator and the reason why the proposed conservator should be selected;

(b) The name and address of each person nominated as conservator by the respondent if the respondent has attained twelve years of age; and

(c) The type of conservatorship requested and, if an unlimited conservatorship, the reason why limited conservatorship is inappropriate or, if a limited conservatorship, the property to be placed under the conservator's control and any limitation on the conservator's powers and duties.

Source: L. 2000: Entire part R&RE, p. 1803, § 1, effective January 1, 2001 (see § 15-17-103).

Editor's note: This section is similar to former § 15-14-404 as it existed prior to 2001.

ANNOTATION

Law reviews. For article, "Effect of Appointment of Conservator on Joint Tenancy Title", see 12 Colo. Law. 1237 (1983). For article, "The Self-Interested Fiduciary: Implications in Guardianship and Conservatorship Law", see 24 Colo. Law. 2181 (1995).

Section 13-90-102 is inapplicable to a voluntary estate proceeding under this section. Patterson v. Pitoniak, 173 Colo. 454, 480 P.2d 579 (1971)(case decided prior to the earliest source this section).

■ 15-14-404. Notice. (1) A copy of the petition and the notice of hearing on a petition for conservatorship or other protective order must be served personally on the...