GUARDIANSHIP AND CONSERVATORSHIP FOR ADULTS

     Guardianships are also used in cases where an adult has become incapacitated due to age, accident or illness.  Under Colorado law, a child becomes emancipated at the age of eighteen (18) and is entitled to make all of their own decisions.  If a person has a disability which has affected their development, a guardianship MUST be obtained when the child turns eighteen (18).  Their disability DOES NOT negate their right to emancipation.  In these cases, the parents or a third party may apply for guardianship.  The subject of these cases is called the “protected person” because, due to their age or incapacitation, their health and welfare must be protected by a third party.  Parents’ permission is not required.  However, it must be shown that the person in question has a condition that renders them unable to make decisions that are in their own best interests, and that said condition is not likely to change within a reasonable time.  

     This is most often shown by testimony regarding their health and their living situation.  These cases are commonly used in cases involving dementia and/or Alzheimer’s patients, mental health patients or patients who have sustained a brain injury through an accidents or illness.  Guardianship can also be obtained in cases involving addiction, where a person’s drug or alcohol abuse has gotten to the point where the person is unable to make appropriate decisions regarding their health and welfare.  Guardianship is most often seen when a person requires in-patient care, such as hospice care, nursing homes, residential mental health care facilities or group homes, or in-patient drug/alcohol therapy.  In order to place people outside of their home without their permission, a guardianship must be obtained and it must be proven that the person is unable to make these decisions on their own. 

     In all guardianship cases, once the Court appoints a person to be guardian for a protected person, the obligations are the same, regardless of age.  The guardian is expected to act in the protected person’s best interests with regard to all decisions involving physical and medical care and treatment, mental health therapy, residential choices, etc.  Other types of choices which may need to be made involve the protected person’s education, extra-curricular activities, religion, personal contacts/visits… the list can go on based on the person’s age and degree of incapacitation.  It is expected that the protected person’s opinion and input will be obtained and honored whenever possible and not contrary to their best interests.  After the permanent guardian is appointed, the guardian is expected to file yearly reports regarding the protected person’s living situation, treatment and financial status.

     It is common that the Court, when appointing a guardian for a protected person, will grant the guardian authority over the person’s finances.  If it is the person’s financial welfare that is the primary concern, it might make sense to file for a conservatorship.  As conservator, a person has control of another person’s finances, to be held and/or used based upon what is in the person’s best interests.  The Court will take into consideration what assets and liabilities are involved, and whether the protected person’s condition causes them to be unable or unlikely to act in their own best interests.  The Court also wants to ensure that the protected person is not in a position to be taken advantage of if they are left to make their own monetary decisions.  If the protected person’s funds or resources are substantial, or if it would be a conflict for the guardian to act as conservator, then the court may wish to appoint a trained third party to act as conservator.  This is often the case when the person is entitled to a legal settlement or is the beneficiary of funds through a will or trust.  Absent these special circumstances, the Court is free to appoint the same person as guardian AND conservator, or simply appoint a guardian and give that person authority over the protected person’s finances.

     All of the types of cases involved in Probate Court are paper intensive and a person is best able to focus on the person in need by hiring an attorney to handle the paperwork and legalities.  Once the permanent guardian has been appointed by the Court, the paperwork decreases significantly and can usually be handled by the guardian personally.  Conservators need to keep meticulous records of the protected person’s assets, liabilities and spending throughout the year.  Because our office also handles tax and bookkeeping services, the Law Office of Angela Boeck-Giscombe & Associates can meet all of your needs throughout this process.

  

 If you are not sure what your family needs or you just want to review your options, don’t hesitate to contact our office for a reduced-rate consultation.  Please call 719-638-8877 today to schedule an appointment. Visit our website at www.AngieLawCS.com

 

GUARDIANSHIP FOR MINORS

    There are several different kinds of probate cases which may be helpful in assisting you caring for your various family members.  The most common is a guardianship, which can be used for people of all ages.  With guardianship, the guardian has the same decision-making authority that is best known in custody cases.  If a person is under the age of eighteen (18), they are required to have somebody acting and making decisions in their best interests.  Anybody can be designated as a protected person’s guardian, provided that they are over twenty-one (21) years of age.  A familial relationship is helpful, but not required to be appointed.  After appointment of a guardian is requested, the Court will appoint a Court Visitor to meet with the protected person and proposed guardian, as well as make contact with any doctors, therapists, teachers, etc. who are regularly involved in the protected person’s life.  After completing their investigation, the Court Visitor will file a report with the Court, making recommendations regarding the proposed guardianship.  The Court will hear testimony of the parties and review the reports, and enter orders according to the protected person’s needs and best interests.

   Guardianships are most often used when a child has been left with a relative or friend, either temporarily or permanently, with the permission of the parents.  Guardianships ARE NOT to be used in lieu of a custody case.  If the parents are not in agreement with the arrangement, then the moving party must get residential custody and decision making authority by filing an “Allocation of Parental Responsibilities” case with the District Court.  There are two ways to obtain a guardianship over a minor child.  The first way is for the proposed guardian to show that the parents agree with the proposed guardianship.  The best way to do this is by having the parents, especially the custodial parent, sign a Power of Attorney.  This document expressly gives a certain person authority to act on their child or children’s behalf.  The second way to obtain guardianship over a minor is to show that both parents’ have abandoned the subject child or children.  The Court generally requires several months of no contact or support in order to find that a parent has abandoned the child.

   Both parents and/or custodians must be given notice of the guardianship proceedings.  If the parents’ location is known to the proposed guardian, then that person must have the parents personally served.  This means that the original documents requesting guardianship must be delivered in person by a person who is eighteen(18) years of age or older and not personally involved in the case;  it is best to choose a person who is not a relative and who will not be called to testify.  The El Paso County Sheriff’s Office – Civil Division, located next to the main courthouse, just north off of Tejon Street;  they will serve a party for a small fee and mail you the Notice of Service for filing with the Court.  If a parent or custodian’s whereabouts are unknown, the proposed guardian can obtain permission to publish notice of the pending case, after showing the Court what efforts have been made to locate the person.  Once the permission to publish is granted, the proposed guardian needs to have notice of the case and the upcoming hearing posted in a newspaper in the town where the party is believed to last reside.  Publication needs to be done three (3) times over the course of three (3) weeks.  If the party then fails to appear, the Court can proceed without them. 

   If you would like to schedule a consultation or need help with your divorce, adoption, guardianship or  parental issues call us 719-638-8877 or visit our website

Colorado Department of Human Services, basic guide to guardianship