What is a Legal Guardian?
In Colorado, a legal guardian is defined as a person who has the responsibility to make decisions regarding a person’s well-being. Colorado law outlines what the responsibilities of a guardian are, and they can vary based upon the specific needs of the person who is the subject of the guardianship, sometimes called the "ward." The responsibilities of a legal guardian commonly include making decisions regarding a person’s health care, education, financial support, and general quality of life. General responsibilities can encompass a variety of different things, including the following:
A legal guardian may be necessary if a person is found to have a disability that prevents him or her from making decisions for him or herself. The disabilities that most often indicate the need for a legal guardian include dementia, significant mental illness , and physical disabilities that leave a person unable to care for themselves. It is important to understand that having a disability does not necessarily mean that a person is legally incapacitated. There are several ways that a legal guardianship can benefit the person who is the subject of the guardianship:
A legal guardian must be appointed by a court for the person who is the subject of the guardianship. While many people think of estates and inheritance when they hear the term probate court, in fact, this area of law encompasses much more than just matters of inheritance. In Colorado, the court that has jurisdiction over guardianships is called the district court, and these courts are located in each judicial district throughout Colorado. Guardianship cases can be heard in front of a magistrate or a judge in these courts, although magistrates are sometimes limited in their ability to make rulings in guardianship matters. It is possible to have a magistrate appointed to hear a guardianship case, but there will be a judge looking over the record of proceedings.
Different Types of Guardianships in Colorado
There are three main types of legal guardianships available in Colorado. Each serves a specific purpose and audience, so it is important to understand which applies to your situation.
Guardianship for Minors
Guardianship for minors is another type of guardianship in Colorado that protects minors whose parents can no longer make decisions for them. When minors demonstrate inability to care for themselves, guardians can be appointed by the court to look out for their best interests and manage their personal and financial affairs. Similar to conservatorship, guardianship for minors lasts until the child reaches 18 years old or until the court determines that the guardian is no longer needed.
Guardianship for Adults
Guardianship for adults can be sought for individuals suffering from a wide range of disorders, ranging from dementia to drug abuse. The purpose of guardianship for adults is to protect vulnerable citizens who have not planned for their own incapacity. Many people pursue guardianship for adults when individuals can no longer live independently or make rational, safe decisions on their own.
Temporary Guardianship
The third type of guardianship is a temporary guardianship. A temporary guardianship may be put in place for adults or minors who require a short-term caretaker. If an individual has been hospitalized and will return home in a matter of weeks or months, temporary guardianship may be the ideal solution. Temporary guardianship lasts for as little as 60 days, but it can be extended for longer periods of time with permission from the court. Temporary guardianship also differs from limited guardianship, which allows for non-intrusive caretaking of the protected person.
How to Become a Legal Guardian of a Minor in Colorado
To obtain legal guardianship in Colorado, potential guardian(s) must file the proper petition with the court and follow specific procedures. A specific legal filing called a "Petition for Appointment of General Guardians" is required. This document formally asks the court to appoint a guardian for an incapacitated individual. Six specific elements must be addressed in the Petition – information about the proposed guardian(s), information about the proposed ward, the circumstances which would prevent the proposed ward from making his or her own decision concerning his/her health care, for specific examples, the medical information which supports this declaration, and a physician’s affidavit – a sworn statement by a licensed physician containing a short diagnosis and prognosis of the proposed ward’s medical condition. The final component of the Petition requires a Statement of Trade Name, completed and signed by the prospective guardian(s). This paper states the names under which the proposed guardian(s) will operate. In Colorado, background checks are required for all prospective guardians. Background checks include: • A Criminal History Record Check • A Colorado Bureau of Investigation (CBI) check • A check of the Colorado statewide sex offender registry
A prospective guardian, or someone connected with the proposed guardian organization, will also need to attend an Orientation and Judicial Observation (OJA), which is a "class" on procedures other guardians have followed, and information on how to avoid some mistakes which could create unnecessary delays in appointment as guardian. You should not attempt to file the Petition for Appointment of General Guardians without a great deal of assistance, as it is a very technical process. Colorado law requires the filing of numerous documents, so if you were to forget to include one of them, the entire process could be significantly delayed. For example, in many cases, proposed wards have some income, such as a Social Security benefit, pension payment or retirement account. For such situations, an additional document, called a "Certificate of Deposit", must be filed with the court. This document will inform the court how much money the proposed ward has received and/or whether a trust may be needed for the proposed ward’s funds. There is no "formal" document such as a Certificate of Deposit for dealing with other sources of income, so you will need to contact an attorney for the correct filing procedures in those cases.
Guardian’s Duties and Responsibilities
Duties and responsibilities of a guardian
A legal guardian serves as a surrogate decision-maker for the ward. This decision-making responsibility only extends to matters where the ability of the ward to make an informed decision has been compromised. For example, if the ward is a minor child, the future likely holds decisions regarding education, career choices, marriages and other such issues. If the ward is incapacitated due to a physical or mental condition, the extent of the decisions may be broader. Obviously, in the case of minors, the guardian’s decisions are temporary and cease upon the child becoming age 21. Such decisions are not intended to create an entire new life, but merely to preserve the current situation. Guardianship for incapacitated persons, however, is much more expansive. It may even address the health care needs of the incapacitated individual. Also, the guardian’s decisions in the case of the incapacitated ward are permanent and do not terminate until the ward’s death or restoration of his or her capability. Guardianship is designed to protect an individual who cannot protect him- or herself. The guardian is not intended to live the life of the ward in his or her stead. The guardian should not overreach into areas not contemplated or protected within the court order. However, the guardian is responsible for the following: The scope of the guardian’s duties may be modified by the appointment order. However, unless the court order states otherwise, the guardian may use ordinary care and prudence to make decisions on behalf of the ward.
Legal Guardianship over Adults
Adults aged 18 and over may also require legal guardians in Colorado. The most common scenarios in which guardianship for an adult is sought include, but are not limited to:
• Persons suffering from long-term incapacity due to mental issues
• Incapacitated persons whose family members are deceased, have moved away, or are otherwise unavailable
• Persons incapable of handling their financial and/or health care decisions
• Persons too young to be in an adult facility but whose care cannot be provided by legal parents or caregivers
When an adult requires a guardian, the court appoints a "limited" or "full" guardian. A "limited" guardian has specific duties as set by the court , such as the right to consent to certain medical treatment or the right to make property decisions. A "full" guardian is empowered to perform all acts that an adult can legally perform.
Guardianship differs for adults in that the incapacity of the adult is not assumed to be permanent. Accordingly, appointments are generally made for a limited time period, which are subject to review and renewal. If the need for a guardian does not cease, the guardian may petition for continued appointments.
Getting a guardianship for an adult requires that the petitioner file a petition with the district court. Following a hearing, the judge will issue an order of appointment. Persons on Medicaid, need to complete an adult guardianship assessment with the Department of Health Care Policy and Financing upon receiving notice of the hearing.
Guardianship Termination
A legal guardianship can end in several ways in Colorado, and each scenario is discussed below:
- Prior Specified Date. Colorado courts can set a date in the future for an automatic termination of a guardianship.
- Minor Reaches Age of Majority. Colorado law provides that if a minor is under the age of 21 at the time of a court order for appointment of a guardian, then that guardianship automatically ends upon the minor child’s 21st birthday. Note: an adult appointment of a guardian will continue until the person dies or becomes disabled (as defined above).
- Resignation of Guardian. A legal guardian of a person in Colorado can resign his or her position by filing a "resignation of guardianship" in the local probate court.
- Death of Ward. The death of the ward that the guardian was appointed to care for will end the guardianship. This scenario usually ends a guardianship appointment that involved a minor child.
- Termination by the Court. Guardianship appointments in Colorado are overseen by the local probate court. If there has been some misconduct or failure to uphold one’s duties as a fiduciary, a probate court can remove a guardian (in other states this is called revocation of guardianship). Additionally, the death of the guardian can also terminate the guardianship, with the caveat that a new guardian may be required to replace the now-deceased guardian of the minor child. Likewise, a guardian might petition the court to have the guardianship terminated due to changed circumstances, new developments, or other justifiable reasons.
- Resignation of Guardian with Substitution of New Guardian. Colorado law allows a guardian to file a petition for approval for a new guardian for the minor within the original guardianship petition. In this way, when a guardian resigns, the wards do not need to stay without a guardian while the local court processes a new appointment.
- Permanent Guardianship Termination. A permanent termination of guardianship occurs when the person no longer is in need of a guardian because there is no longer a need for a guardian to assist them.
- Voluntary Resignation as Four Years Passes. A one-year appointment of a guardian in Colorado does not require a court order to end. After four years, an appointment can end without a declaration or finding from the court.
FAQs
Do I need a lawyer to be appointed as a guardian in Colorado?
While not mandatory, it is highly advisable to have an experienced guardianship lawyer represent you. Getting the help of a guardianship attorney can help you navigate complex paperwork, courts, and fees. Plus, having a lawyer will help you determine if you need a guardianship, or whether you would be better served with a power of attorney instead.
Why would an adult need a guardian?
As a rule, guardianship cases are about incapacitated adults unable to make good decisions for themselves. However, guardianships do not have to be limited to elderly individuals suffering from age-related disabilities such as dementia and Alzheimer’s disease . Other devastating medical conditions such as cancer, stroke and traumatic brain injury also necessitate the careful and vigilant care of a guardian.
If I become a guardian for my adult neighbor with disabilities, what are my obligations to the court?
Even though a guardian may be close friends or family with an incapacitated adult, the court does not assume that they will act within the best interests of the ward (the person for whom a guardian is appointed). Courts hold guardians accountable for any actions they take for their wards or on behalf of their wards. A frequently used tool for guardians to keep the courts updated on their actions on behalf of their wards is formal accounting. Formal accounting occurs in front of a judge and provides a detailed account of the guardian’s financial activities for their wards.
Leave a Reply