Thursday, October 22, 2015


     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


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