A guardian is a person or persons appointed by a court to assist with the personal affairs on behalf of a minor or an adult who is incapacitated and to make decisions on their behalf. A person under a guardianship is called a “ward”.
A conservator is a person appointed by a court to manage the finances and property of an adult who has been deemed incapacitated. A conservator makes sure assets are not wasted and are managed properly. A person under a conservatorship is called a “protected person”.
A guardian can be appointed by the court on an emergency basis if it finds that harm to a person’s health, safety, or welfare will result without an emergency guardian being appointed. The emergency guardianship cannot exceed 60 days.
Guardianship for Adults
Appointment of a Guardian for an Adult
A Petition for Appointment of a Guardian for an Incapacitated Person is filed with the District Court in the county in which the incapacitated person lives.
An incapacitated person is defined as “an individual other than a minor, who is unable to effectively receive or evaluate information or unable to make or to 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.”
Guardian Ad Litem
A guardian ad litem is a person appointed by the court to represent the best interests of a respondent in a proceeding as the court deems necessary. The duties of a guardian ad litem must be specified by the court.
A court proceeding is necessary as the court is altering the protected persons or wards legal rights.
Priority for becoming Guardian or Conservator
Any person age 21 or older may be appointed as a guardian and/or conservator. Colorado law prohibits long-term care providers from serving as a guardian or conservator for any person they provide care to unless related by blood, marriage or adoption.
While it is most common for a guardian or conservator to be a family member, this is not a requirement. If fact, it is very common for the guardian/conservator to be a professional, and in some cases it is advisable. Being a guardian or conservator for someone else can be very demanding of your time and, in some cases, your resources. You should consider your individual circumstances and those of the potential protected person/ward and consider if a professional guardian/conservator might be the better option.
If there is more than one person seeking the appoint as a guardian, the court will follow the order of priority below in choosing the guardian: the currently acting guardian;
a person nominated as guardian by the respondent;
an agent under a medical durable power of attorney;
an agent under a general durable power of attorney;
the spouse of the respondent or a person nominated by a will or other signed writing of a deceased spouse;
an adult child of the respondent;
a parent of the respondent or an individual nominated by a will or other signed writing of a deceased parent;
an adult with whom the respondent has resided for more than six months immediately before the filing of the petition.
However, the court can appoint someone as guardian who has a lower priority or no priority at all, if the court finds good cause shown.
Actions Upon Appointment
If you haven’t already done so prior to your appointment as guardian or conservator, you want to familiarize yourself with your duties and obligations with respect to the ward/protected person (see link below).
In addition, you want to make sure you pay close attention to the orders and obligations given to you by the court. You want to be sure to follow these. At a minimum, you will need to file the initial Conservator’s Financial Plan with Inventory/Initial Guardian’s Report/Care Plan within the court’s required timeframe. You will also want to update the court if there are any significant deviations from the initial report once the court approves it.
Consider what additional services or assistance you will need to ensure that you facilitating the needs of the protected person/ward and that you are meeting the court’s orders and expectations. You may consider hiring an in-home care professional to assist the ward. You may also need assistance with putting together a long-term plan for the protected person/ward. Consider the following:
Will the protected person/ward remain in his/her home? If so, does he/she have sufficient transportation options?
If so, would he/she benefit from a mobile dentist, or other mobile services?
If so, would he/she benefit from certain technological systems, such as an in-home monitoring system?
Will the protected person/ward move into a senior facility in the next 2-5 years?
If so, will he/she need an independent care, assisted living or skilled nursing community?
If so, what geographic location is preferable?
If so, is the community a private pay only, or does it accept Medicaid?
Responsibilities of a Guardian
Make decisions on behalf of the ward based on the limitations of the ward
Encourage the ward to be active in the decisions being made on their behalf
When making decisions, consider the expressed desires and personal values of the ward to the extent known; if not, make decisions based upon the ward’s best interest
Decide on an appropriate place for the ward to live
Arrange for and make decisions about care, medical treatment or other services for the ward
Make sure the needs of the ward are met, including housing, food, and clothing
File the personal care plan within 60 days after appointment
Submit annual reports to the court about the status of the guardianship and the condition of the ward
Responsibilities of a Conservator
Make decisions that are in the best interest of the protected person
Take the necessary and appropriate steps to protect the assets of the ward
Within 90 days of appointment, must file a financial plan with the court
File an annual report with the court
A limited guardianship or conservatorship means the authority of a guardian or conservator is limited to only specific matters. If unlimited guardianship or conservatorship is requested, it must be explained why limited guardianship or conservatorship is not proper.
Notice of Appointment
Within 30 days of the order of a protected person, notice must be given to anyone required by the court and any other interested parties.