THE LAW OFFICE OF
PAUL MITCHELL
A LIMITED LIABILITY COMPANY
| Paul Mitchell |
| 3300 South Parker Road, Suite 215 |
Highlights of Guardianships
for Adults in Colorado
INTRODUCTION
A court appoints a guardian to carry out a care plan for an incapacitated adult whose diminished capacities result in the adult being unable to satisfy the essential requirements for his or her self care, health or safety.1 Care planning is a familiar concept to persons who provide medical services. Medical personnel assess the patient’s capacities, note her deficits and propose medical interventions, care and supervision needed to allow the patient to perform at the patient’s highest level of medical, psychological and psycho-social functioning. This standard is set forth for nursing home residents according to the Nursing Home Reform Act. While not stated explicitly for other arenas of medical treatment, this standard is implicit in the care of the patient regardless of where they are treated such as the home, the doctor’s office, a hospital, skilled nursing facility, etc. The court’s standard form of order requires a guardian to file a report within sixty days of the guardian’s appointment by the Court and annually thereafter. 2
THE NEED FOR GUARDIANS
If a proxy or an agent under a durable medical power of attorney acts for the patient and no one disputes the decisions of the proxy or agent, then the appointment of a guardian should not be needed. Nevertheless, there are several situations that often spawn the need for a guardian. First, an elderly adult, suffering from cognitive loss, does not comply with her doctor’s recommendations and orders and, thus, becomes self-neglecting. She may remain in the home, refuse the help of family and medical providers even though she fails to eat properly, fall in the home, lack proper hygiene, wander in the streets near home, etc. Frequently, these adults fail to take medications that the treating physician prescribes for the patient. Given the high frequency of one or more chronic health problems, such medications may be essential to prevent cardiac problems, high blood pressure, diabetes as well as other conditions. If the patient is being discharged from a hospital, then the patient may refuse to go to an appropriate setting where the person’s care needs can be best met. Often the home is unsafe. Options could include assisted living, board and care homes, nursing homes, etc., depending on the needs of the patient.
Secondly, a guardian may be needed when there is a dispute among family members about the care for the patient or about who should make the decisions. If an interested person objects to the appointment of a proxy, the decision of the proxy or any other reason, that person may initiate guardianship proceedings.3 Upon appointment, the guardian’s powers supersede that of a previously appointed proxy.
CONFLICTS BETWEEN AGENTS AND GUARDIANS
An agent may make medical decisions for a patient according to a medical durable power of attorney signed by the patient4 . If a guardian is appointed for the patient and an agent still makes decisions for the patient, then a legal conflict can arise. Unlike a conservator who may revoke a durable power of attorney giving powers to an agent over the patient’s financial affairs, the guardian may not revoke all of the agent’s powers according to a medical durable power of attorney. The guardian may revoke, suspend or terminate the agent’s powers to make decisions for the patient’s personal care, but may not do so concerning medical treatment decisions by an agent. Nevertheless, a court may remove an agentif the agent becomes incapacitated, unwilling or unable to act as an agent.5 Without an order of court, the health care decisions of an agent take precedence over that of a guardian.6 Consequently, if a guardian is appointed and the court has knowledge of an existing medical durable power of attorney, the court’s order should address this conflict by either limiting the guardian’s power to make medical decisions or by revoking the agent’s power.
DUTIES OF A GUARDIAN
Unless limited by the Court,7 a guardian shall make decisions concerning the ward’s health, care, support, education and welfare and should take into account the ward’s values and expressed desires. To the extent feasible the guardian should encourage the ward8 to participate in decisions affecting the ward. When making decisions about the residence of the ward, the guardian should seek the least restrictive environment. In making decisions the guardian should “ . . . exercise reasonable care, diligence and prudence.”9
The guardian also has duties to remain in personal contact with the ward so that the guardian can monitor the ward’s capacities, limitations, opportunities, etc. The guardian may hire agents especially geriatric care managers who can be the “eyes and ears” of the guardian and make recommendations concerning the quality and amount of care that the ward should receive. Since an elder adult’s physical and mental needs may deteriorate and sometimes abruptly, the geriatric care manager’s assessment and ongoing supervision of the elder’s care can be very helpful especially with medically complex situations.
Other duties of a guardian include the duty to inform the court immediately in writing of the ward’s death, to notify the court if the ward is capable of exercising rights that were previously removed from the ward including requesting the guardianship be dismissed if the ward is capable of acting without assistance. If no conservator has been appointed by the court, then the guardian may manage limited funds as well. The guardian has procedural duties which include sending the ward a notice of the ward’s right to modify or terminate the guardianship, file the report of the personal care plan at the correct intervals in addition to other duties.
WHO MAY AND SHOULD ACT AS GUARDIAN
An individual who does not reside in Colorado may act as guardian. In order to do so, the guardian is required to attend the hearing at which the guardian is appointed unless the Judge finds that exceptional circumstances exist that justify excusing the proposed petitioner’s personal appearance at the hearing. Since the guardian cannot practically monitor the ward’s care and residential circumstances, the services of a geriatric care manager are especially helpful.
An individual who is nominated by the ward is entitled to priority for appointment as guardian10 . Next in priority are the following in order of priority: a guardian appointed by a court in Colorado or another state, an agent appointed by the respondent under a durable medical power of attorney and an agent appointed by the respondent under a general durable power of attorney. Fifth and sixth in priority are the spouse and an adult child of the respondent. The list includes eight categories.11 After that and otherwise an agent under a durable power of attorney is next priority even before the spouse. Regardless of priority, the person appointed as guardian should be one who can communicate well with the ward, who is informed about their care and treatment preferences and is otherwise “trustworthy.” If no family member wishes to act as guardian, then a professional guardian may act. Many professional guardians in the Denver Metropolitan Area have backgrounds in social work, nursing or other related care professions assisting elderly persons and make excellent guardians. If a family feud is going on about the ward’s care, a court may wish to appoint a professional guardian instead of a family member. In addition, a family member or other person interested in the respondent’s welfare may petition the court to appoint a guardian but need not nominate herself! In some cases the local Departments of Human Services may act as guardian under limited circumstances which usually involve the Department’s administration of governmental benefits to the ward.
COMPENSATION FOR THE GUARDIAN’S SERVICES AND PAYMENT OF LEGAL FEES AND COSTS
A guardian may be reimbursed from the ward’s estate for personal funds that the guardian uses for the ward’s support. In addition a guardian may be entitled to be paid a fee. While family members who are guardians often act without compensation, they may be paid based on the time spent, the difficulty of the tasks, the uniqueness of the tasks performed, etc. In addition, any person who has paid for legal, accounting or other administrative fees and costs from their funds may be reimbursed for the payment that they made.12
Of course, fees and expenses may only be paid to the extent that the estate is sufficient. Frequently, a conservator is also appointed to manage the estate where the size of the estate warrants it. In other cases only a guardian is appointed with limited powers to deal with financial matters. In either case the conservator or guardian would pay the reasonable fees and costs. Of course, in some cases there are no funds to pay the fees. An example of this is when a patient has qualified for Medicaid and exhausted his or her funds in the process. While the Medicaid recipient receives income each month, not even the income is available for fees and expenses; by law the monthly income must be paid to the facility to reduce the State’s payments for the patient’s care.
Note: This discussion has been of only some of the legal and personal issues that arise in guardianships. Many features of guardianships and the procedures required in certain circumstances are omitted. A person seeking the appointment of a guardian for another should seek the counsel of an attorney experienced in this field.
1. The petitioner must be prove by clear and convincing evidence is set forth in C.R.S. § 15-14-102(5) that the respondent is an _”incapacitated person, “ which is “. . an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or 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.” Note that “incompetence” is not a term used in the Colorado Probate Code. Individuals under supervision by the Court or a guardian have varying degrees of incapacity. The best term that I have seen for this concept is “diminished capacity.”
2. C.R.S. § 15-14-317.
3. C.R.S. § 15‑18.5‑103(4).
4. C.R.S. § 15-14-506.
5. C.R.S. § 15-14-501(1).
6. C.R.S. § 15-14-316(3).
7. By law a guardian may not place the ward in an involuntary program for alcohol or substance abuse, mental illness or for treatment of the developmentally disabled without complying with th statutory requirements for such programs.
8. After a guardian is appointed, this person is thereafter referred to as a ward. Respondent is the name given to the person for whom the appointment of a guardian is sought before a guardian is appointed.
9. C.R.S. § 15-14-314.
10. C.R.S. § 15-14-311
11. C.R.S. § 15-14-310 lists all the priorities. Following in order of priority are the parent of the respendent or individual designated in the parent’s will or by a signed writing. Finally, a perosn with whom the respondent has lived for more than six months prior to the filing of the petition.
12. C.R.S. § 15-14-316(1) and 15-14-417.
