Understanding Adult Guardianships and Conservatorships in Colorado: A Guide for Families

Do you have an adult loved one who has a neurogenerative disease, experienced a sudden brain injury, or has shown a noticeable decline in their ability to take care of themselves or their finances? Do you have a child with a cognitive disability who will be turning 18 in the near future? Do you have worries that someone, even another family member, may be taking advantage of an elderly loved one without their knowledge? If the answer to any of the above is yes, a protective case (called a guardianship or a conservatorship or both) may be an avenue to consider sooner rather than later.

Media coverage of Hollywood adult guardianships and conservatorships (Britney Spears, Amanda Bynes, and Brian Wilson to name a few) has resulted in widespread educational discourse about how protective cases work—unfortunately, it has also led to the mass spread of disinformation. The goal of this article is to serve as an accurate, in-depth guide for protective cases in Colorado.

TWO TYPES OF PROTECTIVE CASES: WHAT IS A GUARDIANSHIP VS. A CONSERVATORSHIP?

The purpose of both types of protective cases is to ensure someone qualified is able to make decisions on behalf of a protected person. A protected person is someone who the court determines cannot make decisions for themselves, and this may be because they are an incapacitated adult, which will be the main focus of this article, or because they are a minor. A guardian is in charge of decisions related to the protected person’s medical/health care, residence, and overall wellbeing. A conservator is in charge of decisions related to the protected person’s real and personal property, income, and any other financial or business interests. Each type has slightly different legal standards, but it’s common for both to occur in the same case.

WHAT ARE THE LEGAL STANDARDS?

To appoint a guardian in Colorado, the court must find by clear and convincing evidence that:

(1) The respondent is incapacitated, meaning:

a) They are unable to effectively receive and evaluate information or make or communicate decisions, even with the use of appropriate and reasonably available technological assistance; and

b) This incapacity impairs their ability to meet essential requirements for physical health, safety, or self-care;

(2) The appointment is necessary to provide continuing care and supervision of the respondent; and

(3) No less restrictive alternative is available and appropriate.

To appoint a conservator in Colorado,

(1) the court must find by clear and convincing evidence that the individual is unable to manage property or business affairs because of:

a) Incapacity, meaning they are unable to receive and evaluate information or make or communicate decisions, even with appropriate and reasonably available technological assistance,

b) Detention/incarceration,

c) Disappearance, or

d) Inability to return to the US; and

(2) the court must find by a preponderance of the evidence, either:

a) the individual has property that will be wasted or dissipated unless management is provided, or

b) money is needed for the support, care, education, health, or welfare of the individual or someone the individual is obligated to support.

These cases require a fact-intensive analysis, and every case is different. However, some common patterns that show a person may need a guardianship include when a person cannot properly feed themselves, practice proper hygiene, take prescribed medications, attend or remember scheduled doctor’s appointments, remember regular, daily things or people, or take care of themselves in general. For a conservatorship, common fact patterns include when a person repeatedly fails to remember to pay bills, lets the electricity, water, or other utilities turn off in their home without following up, falls victim to scams or family members/friends taking advantage of them, or fails to take care of their property or funds in general.

WHAT IS THE GENERAL COURT PROCESS?

To be appointed as a guardian or conservator or both, you must be at least 21 years old and file a petition and other required paperwork* with the court in the county where the person to be protected (also called the “respondent”) resides. The court will then set a hearing date around 60 days out from the date of filing, which may be in person or virtual depending on the county. No later than 14 days before the hearing, all of the paperwork, including a notice of the hearing, must be personally served on the respondent. It’s best to coordinate service to occur when the respondent is in an environment where they feel safe with a process server who has experience and will make them feel comfortable, if possible. The paperwork must also be served by mail to any interested persons so they will have the opportunity to object to the petition, if they choose. Interested persons may include the respondent’s spouse, adult children, parents, caretakers, legal representatives, creditors, and anyone else who may have an interest in the proceeding. The court will appoint a Court Visitor who will interview the respondent, the petitioner, other people in the respondent’s close circle, and care providers (if the respondent lives in a care facility) to create a report to aid in deciding whether the ward needs a guardianship and/or a conservatorship. The respondent must attend the hearing unless the court determines there is good cause for their absence. If the case is uncontested, the petitioner will simply make their case to the court during the hearing. Depending on whether there are objections, the court may appoint an attorney or a guardian-ad-litem to represent the respondent’s interests.

WHO HAS PRIORITY FOR APPOINTMENT?

A person above the age of 21 with concerns about the respondent’s wellbeing and/or finances may be appointed as guardian, conservator, or both. While it’s often helpful to live nearby, there is no requirement that such person live in Colorado.

The order of priority for a guardian is: (1) a person nominated by the respondent in a valid durable power of attorney or other writing; (2) an agent under medical power of attorney; (3) the spouse or partner in a civil union of the respondent; (4) an adult child of the respondent; (5) a parent of the respondent; (6) an adult with whom the respondent has lived for more than six months before the petition is filed; and (7) any other person the court deems appropriate, including a private/professional guardian.

The order of priority for a conservator is: (1) a person nominated by the respondent in a valid power of attorney or other writing; (2) an agent under financial power of attorney; (3) the spouse or partner in a civil union of the respondent; (4) an adult child of the respondent; (5) a parent of the respondent; and (6) any other person the court deems appropriate, including a private/professional conservator, public fiduciary, or trust company.

If a case is already open and an interested person has concerns about a guardian’s and/or conservator’s performance on behalf of a loved one, and the evidence is substantial enough, an interested person may have the option to petition to remove them and appoint someone else instead (including themselves if they are qualified).

CAN MORE THAN ONE PERSON BE APPOINTED?

In some situations, such as two parents looking after an incapacitated adult child, it’s a good idea to have two co-guardians and/or co-conservators. In those situations, the court documents should be drafted to ensure that both parties are able to act on their own without the need for both to sign off on every decision. Then, if the child needs to go to a medical appointment but one parent can’t go, the other can go alone and make sure the child gets medical attention without issue. In other situations, such as two adult children who don’t get along but want to be part of looking after their parent, it may not be a great idea to have both serve as co-guardians or co-conservators, depending on the dynamics and facts involved. The court’s main concern is what is best for the respondent, and two petitioners who don’t work well together isn’t necessarily the best outcome. This runs the risk of them hitting a standstill if they disagree about a particular decision and have to get a court order in order to take action—spending time litigating without being able to act can put the protected person’s wellness or finances at risk. Instead, if there are competing petitions, the court may determine something else is best, such as: one to serve as both roles; one to serve as guardian and one to serve as conservator; or, if they’re co-guardians/co-conservators, then one to have the final say in case of disagreements. Again, the court documents must be drafted clearly and accurately so that various entities can easily understand the scope of authority.

WHAT DOES THE COURT REQUIRE AFTER APPOINTMENT?

Once appointed as guardian and/or conservator, the court will set deadlines to complete and file an initial guardian’s report and/or an initial conservator’s financial plan with inventory. A report for both types of cases will be due every year after that, typically on the respondent’s birthday.

WHAT ARE THE DUTIES OF A GUARDIAN AND A CONSERVATOR?

Beyond the reports for the court, guardians and conservators have many ongoing legal duties (and some limitations), and it’s important to be familiar and compliant with them. For guardians, the duties include, but are not limited to, arranging for the protected person’s medical needs, housing, food, clothing, hygiene, personal care items, housekeeping, transportation, spiritual needs, recreation, and any hired professionals for the same. However, there are some things a guardian does not have authority to consent to against the protected person’s will. Special procedures are required to obtain hospital or institutional care for mental illness, treatment from an agency for developmental disabilities, or treatment for substance abuse. A guardian also cannot move the respondent out of Colorado without a court order.

For conservators, the duties include, but are not limited to, locating and protecting all of the respondent’s assets, separating all assets from their own, managing and investing the respondent’s assets appropriately and without major risk, paying bills, ensuring there is insurance coverage where appropriate, ensuring taxes are current, maintaining a clean and complete written record of all transactions, and seeking professional advice and services when needed. It’s very important to only ever sign off on financial documents in the conservatorship capacity, rather than personally.

It’s also up to the guardian/conservator to stay current and competent about their legal duties and limitations. At the same time, a guardian/conservator should always attempt to include the respondent’s input in decisions, if possible.

SHOULD I/HOW DO I TALK TO MY LOVED ONE WHO MAY NEED PROTECTION ABOUT ALL OF THIS?

We often advise the petitioner to have a conversation with the respondent about the case and give them a warning, particularly before they are served with court paperwork, if possible and safe under the circumstances. Talking about this can be hard on both parties, especially depending on the respondent and their level of cognition and understanding. Sometimes respondents have a condition, such as very late-stage dementia, and can’t really understand what is happening (or don’t really care). Others understand that they need help and even want their family to step into these roles for them. In other situations, this process can be very tough on the respondent as they may feel confused, betrayed, scared, and a loss of autonomy. It can in turn be difficult for the petitioner as no one wants to make their loved one feel this way.

Regardless, it’s very important to recognize and empathize with the respondent’s feelings while remembering the end goal of ensuring their personal and financial safety. It’s best to be kind, patient, and honest, explaining the concerns to them and why the process feels necessary—the purpose is not to control, scare, or hurt them, but rather to help, protect, and express love to them. At the same time, it’s also important not to pressure or unduly influence them into accepting the appointment of a guardian and/or conservator. If they wish to object to it, they have the legal right to do so. The court will ensure they have representation (or the opportunity to have representation) if needed and will make the ultimate decision.

WHAT IF MY LOVED ONE’S CAPACITY IS WORSENING BUT NOT QUITE AT A POINT TO MEET THE LEGAL STANDARDS?

If the respondent’s level of capacity is in a gray area, the court may appoint a guardian and/or conservator in a limited capacity, personalized to the particular issues. This is often to ensure that the respondent still has responsibilities and feels in charge, but also that the petitioner can intervene and assist in particular situations of need. To provide some examples: a guardian may attend doctor appointments and assist with medical decisions but cannot make decisions about the respondent’s residence; a conservator may monitor and limit the respondent’s spending but cannot pay bills on the respondent’s behalf; the guardian/conservator must run every single decision by the respondent but may have the final say if there’s a genuine disagreement. If things worsen over time, a new petition can be filed for additional authority.

For anyone in general, but particularly for folks with a family history of cognitive disorders, it’s wise to consider speaking to an estate planning attorney about medical and general durable powers of attorney to nominate an agent(s) to be able to assist with health and financial decisions, respectively. A main goal of these documents, beyond ensuring an agent can step in to help if you become incapacitated, is to avoid the need for a guardianship or conservatorship altogether. If drafted properly, they function very similarly, meaning the agent can take a copy to assist with doctor’s appointments, banking, paying bills, etc. without the need for court involvement or annual reporting. The person signing a power of attorney and nominating an agent(s) must have capacity, so it’s important to try to complete these earlier rather than later, especially if there is fear of future decline in cognition.

I HAVE A MINOR CHILD WITH A DISABILITY AND EXPECT THEY WILL BE INCAPACITATED THROUGH ADULTHOOD – WHAT STEPS DO I TAKE?

Once a person turns 18, they are considered a legal adult by most entities in American society, including financial institutions, medical providers, and government agencies like the Social Security Administration. At that point, in order to assist them with things like medical treatment or government benefits, such entities will more than likely require a guardianship and/or conservatorship to have authority to make decisions on their behalf. Depending on the situation, the parent or legal custodian of the respondent can petition about two months before the respondent’s 18th birthday and request a court date for the birthday or shortly after that. Alternatively, if the 18th birthday is coming up quickly and there is a serious need for a guardianship and/or conservatorship, there is also an expedited version of the process. The legal standards for this are heightened, but if the situation is an emergency, the court may appoint an emergency guardian and/or special conservator to serve until the permanent one is ordered on the regular timeline.

It's also a good idea for parents to meet with an estate planning attorney and ensure they have official, written guardian and conservator nominations for any minor children as well as express, broad authority for their nominated fiduciaries to be able to make lawful gifts to minors or incapacitated beneficiaries in a way that’s in their best interests.

CONCLUSION

Adult protective cases can feel emotionally taxing and overwhelming for everyone involved. At Gant Law, we understand that every case has its own unique needs and we pride ourselves in doing everything we can to ensure these cases are resolved and tailored to the best interests of the protected person. If you’re worried about a loved one’s wellbeing, you feel like someone is pressuring or taking advantage of you or your loved one, or you’re interested in taking estate planning measures, please schedule a consultation with us and one of our attorneys will be happy to provide you with personalized advice.

*Please Note: While it’s often ideal to retain the services of an attorney, it’s also important to know that representation is not required, and anyone can proceed with protective cases without legal counsel. The courts supply many helpful resources and JDF forms for public use. All necessary forms can be downloaded from the Colorado Judicial Branch website under Self-Help and Forms. The court’s instructions and list of forms for appointment of a guardian and conservator for an adult can be found on JDF 840 and JDF 875, respectively.