Defining Legal Guardianship
Legal guardianship is a legal authority to make financial, medical or both decisions for an individual, typically on a temporary basis. Guardianships are commonly put in place for minor children, but they can also be established for victims of medical emergencies. In some cases, legal guardianship may take the place of adoption, and on occasion it is used in the place of a power of attorney. Colorado law does allow for the establishment of legal guardianship for a wide range of situations in which a person may need support in handling their personal business affairs – particularly in matters involving real estate transactions. Guardianship establishes a fiduciary relationship , or a legal relationship of confidence that imposes a duty of care on the guardian over the ward, who is the protected person. Common reasons legal guardianship may be established include care of minor children, care of developmentally disabled individuals, protection of elderly adults, care of incapacitated adults, and protection of minors involved in civil or criminal proceedings (including minors witnessing victims of crimes). Guardians may also be appointed as a personal representative under a will, or for the estate of a ward.
Different Types of Legal Guardianship in Colorado
In Colorado, there are two broad categories of legal guardianship: guardianship over minors and guardianship over adults. Within each category, there can be permanent or temporary guardianships. Guardianship of the Person for Minors—This type of guardianship is also referred to as "a minor’s legal guardianship." This is found within Colorado’s Probate Code, Title 15, Article 14. It is designed to take care of a surviving child after his or her parents have died; for example, after their second parent has died. If the parents are no longer able, or willing, to care for their child, they can nominate a legal guardian by filling out the Corrected Nomination of Guardian for Minor Child(ren) (Form JDF 8700). The nominated guardian cannot be a minor, must be at least 21 years old, and must reside in Colorado. If the child has a sibling over 18 years of age, he or she can also nominate someone other than the sibling to be a guardian. If there is no nominated guardian, or if a nominated guardian refuses to take on the responsibilities, then the probate court will appoint a guardian for the child. The Court Application for Appointment of Guardian for Minor Child(ren) (Form JDF 8709) must be filled out and filed to obtain this. Once guardianship has been approved, the probate court will issue Letters of Guardianship of the Person upon Minor(s) (Form JDF 8721). This legal order gives the legal guardian all powers and legal authority over the child that the child’s natural parents would have had if both of them were still alive. Guardianship of the Estate for Adults—This type of guardianship is also referred to as "adult guardianship." Guardianship of the Estate for Adults is intended to provide legal representation and assistance to people who have a hard time making decisions for themselves, also referred to as "incapacitated adults." (Colo. Rev. Stat. §15-14-103.5(1)) Guardianship may include people who are mentally ill, physically or mentally incompetent due to physical incapacity, alcoholism, drug addiction, debility due to advanced age, chronic gambling or felony convictions not resulting in a sexual offense. It does not include people who are mentally incompetent due to an intellectual or developmental disability, which is cared for under Title 17, and the Department of Healthcare Policy and Financing. However, guardianship does include people who are partially incapacitated. This can include people who are temporarily incapacitated by hit-and-run accidents, concussive episodes, or the aftereffects of anesthesia. For guardianship over these individuals, the Department of Human Services will designate the guardian, pursuant to §15-14-209. Designation of a Guardian by the Department of Human Services. Guardianship may be related to the person’s finances or health. Guardianship of the Estate means that someone has been appointed as legal custodian of a person’s finances, property, and/or estate. When guardianship is for other than an estate, it is a similar concept as guardianship for a child, but it includes the additional powers and legal authority over the incapacitated adult’s estate.
The Process of Obtaining Guardianship Through the Legal System
The process for establishing legal guardianship in Colorado generally begins when either an adult, or an interested party on behalf of a minor, files a formal petition with the appropriate Colorado court. The petition is expected to detail why a guardian is necessary and often includes supporting documentation, such as medical reports or affidavits from other responsible parties. The Colorado court may grant "emergency" guardianships without a hearing but typically requires them to be validated at a later date. In most cases, however, the appointment of a guardian for either a minor or an adult is not optional and must follow standard civil court procedures.
As in many court cases, the first step toward legal guardianship is the filing of a formal petition. In the case of a minor child, the petition may be filed by the child’s parent(s), or any person interested in the welfare of the child. For developmentally disabled or elderly individuals, the petition for guardianship may be filed by any interested party, and the process can move on from this point without parental or family consent.
After the petition is filed, the court will hold a hearing within 30 days and may require the petitioner, parents (if a minor is involved), and other relevant parties to appear before the court. The petitioner may be challenged by other interested parties and must demonstrate that guardianship is necessary, using evidence as required by the specific Colorado court. Typically, there is a 14-day waiting period between the notice of the hearing and the actual hearing, so the process may take 45 days or more, depending on the circumstances.
If the Colorado court determines that guardianship is in the best interest of a minor child or adult in need, the petition will be granted. This is often viewed as a "worst case scenario" action, but an interested party has the right to petition the court – regardless of circumstance. If the child is a minor, the court will appoint a family member as the guardian if possible, or allow a third-party to fulfill this role.
Guardian’s Rights and Responsibilities
Colorado law delineates specific rights and responsibilities for guardians. Unlike financial powers of attorney, where the agent has the power to act for you without any judicial oversight, guardianship is a court-supervised process.
The duties of a guardian are spelled out in Colorado Statute 15-14-210(34):
(a) If so standard, avoid conflict of interest with the ward;
(b) Control and conserve the ward’s property;
(c) Protect the estate of the ward;
(d) Promptly pay all the lawful claims against the ward’s estate;
(e), Subject to subsection (1)(a) of this section, manage assets in the ward’s estate in a manner consistent with the standards of care—
(I) In the case of an investment, an ordinarily prudent investor of discretion;
(II) In the case of a business, the same care and skill an ordinary careful businessperson would use in conducting his or her own business affairs;
(III) In the case of land, the care and skill an ordinary careful landowner would exercise;
(IV) In the case of a trust, the standard of care that applies to trustees generally;
(V) In the case of claims arising because of alleged negligence by a fiduciary, the care and skill that would have been used if the fiduciary were an ordinarily prudent person dealing with his or her own affairs; and
(VI) In the case of an act relating to the settlement of the wards estate, the care and skill that would have been used in the administration of the estate if the ward had the capacity to make independent decisions concerning the conduct of his or her affairs;
(f) If the guardian is supervised, make such reports concerning the estate affairs of the ward as the court may require; and
(g) Render an accounting when required by the court .
There are additional duties of a guardian, such as filing an inventory of the ward’s property within 60 days of your appointment and filing an annual report with the court. A guardian may not move the ward to a facility outside of Colorado without an order of court. Or, if not in the best interests of the ward, the guardian may not do pay the guardian’s attorney fees out of the ward’s funds.
How to Challenge or End Guardianship
The guardianship may be challenged at any time through a petition to the court. The Court may terminate the appointment of the guardian in any of the following circumstances:
a. The incapacity of the ward is disroved.
b. The person or agency appointed as the guardian has been removed or withdrawn as provided by section 15-14-205, C.R.S.
c. The authority of the guardian has been withdrawn or expanded as provided by section 15-14-206, C.R.S.
d. The guardian neglects his or her duties or obligates the ward’s estate beyond his or her ability to pay.
e. The guardian is unsuitable or is incapable of discharging his or her duties.
f. The incapacity of the ward is temporarily removed or his or her incapacity is subject to limitations pursuant to sections 15-14-418, 15-14-419, 15-14-421, 15-14-422, and 15-14-423, C.R.S.
g. For other good cause shown.
Additionally, the Court may modify the authority of the guardian in any of the following circumstances:
a. If the court ceases to be satisfied that the ward’s incapacity precludes the ward from exercising legal rights and self-determination and that the order appointing the guardian promotes the well-being of the ward.
b. The authority of a guardian has been withdrawn or expanded by the court pursuant to section 15-14-206, C.R.S.
c. The court may modify the order by limiting the powers granted to a guardian or by removing the guardian’s authority in part.
If the guardian has powers (1) that are restricted by the Court, or (2) that are not necessary anymore, the Court may change its order by: (1) giving the guardian additional powers, or (2) reducing the powers of the guardian. A guardian shall not be liable for any act done or omitted as guardian in good faith at any time prior to the entry of an order modifying the guardian’s authority.
Securing Legal Assistance for Guardianship Issues
While legal guardianship is a formal legal process, it is not necessary to hire an attorney to obtain legal authority to serve as a guardian. It is advisable that the guardian obtain the assistance of an attorney when there are any issues likely to come up in guardianship proceedings in court, or when the person seeking legal guardianship is unfamiliar with the process in Colorado or the rights and responsibilities associated with the legal guardianship process . The local bar associations in Boulder, Denver, and Jefferson County all offer an attorney-referral service. In addition to referring individuals to lawyers in the area, these services also provide information and support to the general public regarding which actions are appropriate when they have a need for attorneys. In addition, the Colorado Legal Services www.coloradolegalservices.org, a statewide resource, can put you in contact with legal aid lawyers throughout the state.
