Introduction to Guardianship for an adult in Colorado.

Guardianship is a court appointment which gives a person or an organization responsibility and authority for making decisions on behalf of an adult who is unable to manage his/her own affairs and make his/her own decisions. Guardianship for adults in Colorado is authorized by Colorado Revised Statutes, Title 15, Article 14, Part 3. The person for whom a guardian is appointed is called a “ward.” Guardianship is a serious responsibility and one that should be approached with the same seriousness and attention which you apply to your own life. Besides being a “legal representative” for your ward, you will also be an advocate and watchdog. You may also be a surrogate family member, teacher and a friend. While guardianship provides important protection and assistance, it is also very restrictive. It can remove all of a person’s legal rights to manage his/her own life and must be imposed only as a last resort.

If you are considering becoming a guardian for someone you must first consider if limited guardianship would be sufficient. Colorado law presumes that only limited guardianship is necessary and you must prove to the court otherwise if an unlimited guardianship is requested. Limited guardianship may include authority to make only medical decisions, only residential decisions, or only financial decisions. Or it may include a combination of one or two areas. In all other matters, the guardian has no authority. An unlimited guardianship can be reduced to a limited guardianship, or the reverse can be done, through a petition to the court which made the initial guardianship appointment.

Duties of a Guardian

As a guardian you are expected to understand and carry out the responsibilities outlined in the specific guardianship orders of your appointment. When in doubt about your authority to decide about a specific matter, you may always seek prior approval from the court. While individual guardianship orders may contain specific instructions, there are general duties and responsibilities which every guardian is expected to fulfill.

Colorado law gives guardians authority to make decisions regarding the ward’s support, care, education, health, and welfare.It further states:

“A guardian shall exercise authority only as necessitated by the ward’s limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian, at all times, shall act in the ward’s best interest and exercise reasonable care, diligence, and prudence.” (C.R.S. 15-14-314(1))

In addition, a guardian shall:

• Become or remain personally acquainted with the ward and maintain sufficient contact to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health. (C.R.S. 15-14-314(2)(a))
• Take reasonable care of the ward’s personal effects and bring protective proceedings if necessary to protect the property of the ward. (C.R.S. 15-14-314(2)(b))
• Spend the ward’s money that is in the guardian’s control, for the ward’s current needs for support, care, education, health, and welfare. (C.R.S. 15-14-314(2)(c))
• Save any of the ward’s excess money for the ward’s future needs. If a conservator is appointed for the ward, the guardian must pay the excess money to the conservator, at least quarterly, to be saved for the ward’s future needs. (C.R.S. 15-14-314(2)(d))If your ward has substantial assets (more than the amount required for his/her daily living needs), it is necessary that a conservator be appointed. A conservator is a person or organization appointed by the court to manage the financial affairs of another. The process for appointment of a conservator is similar to that for a guardian. If your ward is also your relative, it may be possible for you to serve as both the guardian and conservator.

Immediately notify the court if the ward’s condition has changed to the degree that guardianship may no longer be necessary.

• Inform the court of any change in the ward’s residence.
• Immediately notify the court of the ward’s death.

Powers of a Guardian

Unless limited by the court order, guardians have the following powers:

• Consent to medical or other care, treatment, or service for the ward. (C.R.S. 15-14-315(1)(d))Advance Directives are arrangements and desires which your ward may have expressed in writing while competent. The Living Will is an example of such an advance directive regarding withholding or withdrawing medical life support systems and/or nourishment. You are obligated to respect your ward’s wishes and directions contained in the Living Will.Another Advance Directive is a Medical Durable Power of Attorney with which your ward would have designated an agent who is to be responsible for making such decisions on his/her behalf. The agent specified to make decisions on your ward’s behalf in the Medical Durable Power of Attorney, has precedence for making health-care decisions over a guardian unless the Medical Durable Power of Attorney is revoked by the court. A guardian may not revoke the ward’s Medical Durable Power of Attorney. (C.R.S. 15-14-316(3))
• Apply for and receive money payable to the ward, guardian or custodian for the support of the ward from any government or private source. (C.R.S. 15-14-315(1)(a))
• If not in conflict with other court orders, the guardian may take custody of the ward and decide where the ward is to live. Guardians must obtain permission from the court to move the ward outside of the State of Colorado. (C.R.S. 15-14-315(1)(b))
• If there is no conservator, the guardian may take necessary actions to force an obligated party to support the ward or to pay money for the benefit of the ward. (C.R.S. 15-14-315(1)(c))
• Depending upon circumstances, a guardian may allow a ward to make certain decisions affecting the ward’s well-being. (C.R.S. 15-14-315(1)(e))
• With specific authority or direction from the court, a guardian may consent to the adoption or marriage of the ward. (C.R.S. 15-14-315(2))
• A guardian may petition the court for authority to apply for a divorce or legal separation on behalf of the ward if it is in the best interest of the ward based on evidence of abandonment, abuse, exploitation, or other compelling circumstances, and the ward either is incapable of consenting or has consented . (C.R.S. 15-14-315.5)

Rights, Immunities, and Limitations

With approval by the court, guardians are entitled to reasonable compensation for services as a guardian and to reimbursement for room and board provided by the guardian or one affiliated with the guardian. If there is a conservator, other than the guardian or one affiliated with the guardian, reasonable compensation and reimbursement to the guardian may be paid by the conservator without order of the court.

Guardians are not required to provide for their ward, or pay for their ward’s expenses, out of the guardian’s own funds. However, you must very carefully read all documents before signing. If you sign something personally accepting financial liability, you may be held personally liable. Neither are guardians liable to third parties for acts of the ward solely by reason of the guardianship. Further, a guardian who exercises reasonable care in selecting parties to provide medical or other care, treatment, or service for the ward, is not liable for injury to the ward resulting from the negligent or wrongful conduct of the providers.

Guardians may not consent to involuntary commitment, or care and treatment of a ward for mental illness, developmental disabilities, or for alcoholism or substance abuse. In all of these instances, a guardian must proceed under the appropriate statute.

Reports to the Court

Within 60 days of appointment, or as otherwise directed by the court, guardians must submit a written report to the court including:

• the condition of the ward,
• the guardian’s personal care plan for the ward, and
• account for money and other assets in the guardian’s possession or control.

Thereafter, guardians are required to submit annual reports which cover:

• the current mental, physical, and social condition of the ward;
• the ward’s living arrangements;
• medical, educational and vocational services provided and the adequacy of the ward’s care;
• a summary of the guardian’s visits with the ward and actions on behalf of the ward, including the ward’s participation in decision-making;
• whether the current care plan is in the ward’s best interest;
• plans for future care; and
• recommendation as to continued need for guardianship and changes.

In addition, the court may appoint a visitor to review a report, interview the ward or guardian, and make any other investigation the court directs.

General Responsibilities

As a guardian you must know and care about all aspects of the well-being of your ward. If he or she does not live with you, you must visit and spend time with him/her as often as possible. It is your responsibility to make arrangements for, keep informed about, and maintain documentation of your ward’s current situation regarding finances, living arrangements and care givers, health and medical care, education and training, personal needs, preferences and desires, employment, recreation and leisure time.

It is very important to get acquainted with the people who are significant in your ward’s life, for example, family, doctors, nurses, recreation directors, case workers, employers, therapists, teachers, friends, and neighbors.

You are expected to plan for your ward’s future. Anticipate and be prepared for emergencies. Be aware of options in living arrangements or daily living activities in case changes might be necessary. Make sure that insurance or appropriate health care benefits are in place. Assure that funeral and burial or cremation arrangements are in place.

It is important for you to be familiar with laws, rules and regulations that may impact the life of your ward. For example, laws and regulations regarding nursing homes or other residential facilities; laws against discrimination and safety requirements if your ward is employable; education laws if he/she is under age 21; any government benefits and entitlements that he/she might be eligible to receive. You will also need to know how to advocate for your ward in these matters. There are community resources available to provide help, information and assistance.

Making Decisions on Behalf of Someone Else

Even though, as a guardian you will have responsibility for protecting and caring for your ward, it is important to carefully distinguish between providing adequate protection and imposing excessive restrictions. As has already been stated, Colorado law requires guardians to include their wards in making decisions. A ward’s ability to participate will depend to a large extent upon the magnitude of the decision. For example, what to wear to a particular event is a much easier decision than whether or not to have surgery. The kind of information and how it is presented will also have a bearing upon the ward’s ability to participate in a decision. Information should be tailored to the understanding of the individual; the language must be simple, repetition may be necessary, and visual aids may be helpful. Following the attempt to inform, special efforts should be made to determine whether the person has in fact understood the information, perhaps through quizzing or other feedback. You may also enlist the help of others to explain a matter to your ward, possibly in a different setting and at a different time of day.

As a guardian you must weigh all decisions critically and objectively. The following guidelines may be helpful. First, allow your ward to make the decision alone with support and assistance only as needed. If that is not possible, include your ward in a decision-making process whereby all relevant information is discussed and your ward is an active participant. Finally, if a decision must be made by you alone, you must be sensitive to the expressed preferences of your ward, if known, and to the greatest extent possible, make decisions based upon the same set of values he/she would use if making his/her own decisions. In the case of a ward who has never been able to make his/her own preferences known, you have no choice but to make the decision that you believe is best for your ward.

When making decisions for your ward, you must apply informed consent principles in the same manner applied when making decisions about your own life. For example, before giving consent you should have answers to the following questions:

• What are the alternatives?
• What are the risks?
• What are the benefits?
• What are the consequences?
• What discomforts might occur?
• Can I change my mind later?

Termination or Modification of a Guardianship

A guardianship terminates upon death of the ward, or if the ward no longer meets the standard for establishing the guardianship. (Incapacity by clear and convincing evidence.) A ward, guardian or any interested person may petition for removal of a guardian on the grounds that removal would be in the best interest of the ward or for other good cause. Before terminating a guardianship, the court will follow the same procedures to safeguard the rights of the ward as apply to a petition for guardianship. The court may remove a guardian or permit a guardian to resign. A petition for removal or permission to resign may include a request for appointment of a successor guardian. (C.R.S. 15-14-112 and 318)

The court may modify the type of appointment or powers originally granted to the guardian if the extent of protection or assistance is currently excessive or insufficient or the ward’s capacity to provide for support, care, education, health, and welfare has so changed. (C.R.S. 15-14-318(2))

A temporary substitute guardian may be appointed for up to six months when a guardian is not performing effectively and the ward’s welfare requires. (C.R.S. 15-14-313) Except as otherwise ordered by the court, a temporary substitute guardian has the same powers as the original guardian.

Delegation of Power by a Guardian

By the use of a power of attorney, a guardian may delegate to another person, for a period not exceeding 12 months, any power regarding care, custody, or property of a ward, except the power to consent to marriage or adoption. This provision is useful if a guardian must be out of the geographical area for an extended period or during a medical leave. (C.R.S. 15-14-105)

Transfer to another country or state

The court making the appointment of a guardian may transfer the guardianship to a court in another county or another state if the court is satisfied that a transfer will serve the best interest of the ward. (C.R.S. 15-14-107(1))