Procedure for Appointment of a Guardian for an Adult

The following process is generally followed for appointment of a guardian of an incapacitated adult. It may vary with particular cases and by court. (From Colorado Revised Statutes, Title 15, Article 14, Part 3)

1. The law defines an incapacitated person as “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.” (C.R.S. 15-14-102(5))
2. A Petition for Appointment of a Guardian for an Incapacitated Person is filed with the District Court in the county in which the allegedly incapacitated person lives. In Denver, it is filed with the Probate Court. A petition can be initiated by any interested person.
3. There is a $164 filing fee which is payable when the petition is filed. In most counties, the Visitor’s Fee is around $25/hour. In Denver, there is a flat fee of $75.00 for the Court Visitor. If appropriate, the court may waive the fees based on the respondent’s and petitioner’s inabilities to pay as described in an Affidavit of Support of Petition to Proceed In Forma Pauperis.
4. Medical information must be attached to the petition to support the need for guardianship. This can be a letter or report resulting from a professional evaluation by a physician, psychologist, or other individual qualified to evaluate the respondent’s alleged impairment. If not submitted with the petition, the court may order such an evaluation and shall do so if demanded by the respondent. The evaluation report must contain: (C.R.S. 15-14-306)
   1. A description of the nature, type, and extent of the respondent’s specific cognitive and functional limitations, if any;
   2. An evaluation of the respondent’s mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
   3. A prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and
   4. The date of any assessment or examination upon which the report is based.
5. In addition to general information about the respondent and the need for guardianship, the petition must specify the type of guardianship requested. The law presumes that a limited guardianship is necessary in order to preserve the rights of the respondent to manage as many of his/her own affairs as possible while still providing necessary protection and oversight. Limited guardianship may include authority to make only medical decisions, only placement 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. The petition must specify the powers to be granted to the limited guardian. If an unlimited guardianship is necessary, the petition must state the reason why limited guardianship is inappropriate. (C.R.S. 15-14-304(2)(h))
6. The petition must include a general statement of the respondent’s property with an estimate of its value, any insurance or pension, and the source and amount of any other anticipated income or receipts. (C.R.S. 15-14-304(2)(i))
7. Priorities For Appointment as Guardian (C.R.S. 15-14-310)
   1. current court-appointed guardian;
   2. respondent’s nominee;
   3. agent under health care power of attorney;
   4. agent under general power of attorney;
   5. spouse or spouse’s nominee in will or other writing;
   6. adult child;
   7. parent or parent’s nominee; or
   8. adult with whom respondent resided for 6 out of 12 months preceding.
8. Prohibitions Against Appointment as Guardian
   1. Long-term care providers are prohibited from serving as guardian for a person for whom they provide care unless related by blood or marriage. (C.R.S. 15-14-310(4))
   2. Professionals may not serve the same person as both:
      1. guardian and conservator
      2. guardian and direct service providers; or
      3. conservator and direct service provider. (C.R.S. 15-14-310(5)(a))
   3. A guardian or conservator may not employ the same person to act as both care manager and direct service provider for a ward. (C.R.S. 15-14-310(5)(b))
   4. Prohibition against dual roles may be overturned by the court for good cause.
9. Following the filing of the Petition, the court appoints a Visitor who serves as an investigator for the court. (C.R.S. 15-14-305)
   1. Must interview the respondent to:
      1. explain the substance of the petition,
      2. the nature, purpose, and effect of the proceeding,
      3. the general powers and duties of a guardian, and
      4. the following rights of the respondent:
         1. to have notice of and be present in person at any court proceeding;
         2. to see or hear all evidence bearing on respondent’s condition;
         3. to be represented by counsel of choice or court-appointed counsel;
         4. to present evidence;
         5. to cross-examine witnesses, including any court-appointed visitor, evaluator or physician;
         6. to contest the petition;
         7. to object to the appointment of the proposed guardian or his/her powers or duties;
         8. to object to the creation of the proposed guardianship, or its scope or duration;
         9. to have a guardian ad litem appointed to represent the respondent’s best interests if the court determines that need for such representation exists.
      5. inform the respondent that all costs and expenses of the proceeding, including attorney fees, will be paid from the respondent’s estate, unless otherwise directed by the court.
   2. Interview the petitioner and the proposed guardian (if different).
   3. Visit the present and proposed dwellings of the respondent.
   4. Obtain information from any physician or other person who is known to have treated, advised or assessed the respondent’s relevant physical or mental condition.
   5. Make any other investigation the court directs.
   6. Must promptly file a report in writing with the court which must include:
      1. a recommendation as to whether an attorney and/or a guardian ad litem should be appointed;
      2. a summary of daily functions the respondent can manage without assistance, those he/she could manage with the assistance of supportive services or benefits, including use of appropriate technological assistance, and those he/she cannot manage;
      3. recommendations regarding the appropriateness of guardianship;
      4. whether less restrictive means of intervention are available;
      5. the type of guardianship and, if limited, the powers to be granted to the limited guardian;
      6. a statement of the qualifications of the guardian and a statement as to whether the respondent approves or disapproves of the proposed guardian, the powers and duties proposed and the scope of the guardianship;
      7. a statement of whether the proposed dwelling meets the respondent’s individual needs;
      8. a recommendation of whether a professional evaluation or further evaluation is necessary;
      9. and any other maters the court directs.
10. A Hearing is scheduled on the matter of the petition for guardianship.
11. Notice of the Hearing to the Respondent (C.R.S. 15-14-309(1))
    1. Must state that the respondent must be physically present for the hearing, unless excused by the court; include the respondent’s rights at the hearing; describe the nature, purpose and consequences of an appointment.
    2. A copy of the Notice of Hearing to Respondent must be personally served on the respondent, with a copy of the petition attached, at least 10 days prior to the hearing. Personal service may be done by any disinterested person. It is not necessary to hire a Process Server.
12. Notice of Hearing to Parties Listed on the Petition (C.R.S. 15-14-309(2))
    1. Includes:
       1. spouse or, if no spouse, an adult with whom respondent has resided for at least 6 out of the 12 months preceding the filing of the petition;
       2. adult children and parents;
       3. if none, at least one of the adults nearest in kinship to the respondent who can be found with reasonable efforts;
       4. each person responsible for care or custody of the respondent;
       5. treating physician;
       6. each legal representative of the respondent;
       7. each person nominated as guardian by the respondent.
    2. A copy of the Notice of Hearing to Interested Persons must be served on the above along with a copy of the petition, at least 10 days prior to the hearing.
13. Hearing Presence, Rights and Findings (C.R.S. 15-14-308)
    1. The respondent must attend the Hearing unless excused by the court for good cause. The Petitioner must make reasonable efforts to secure the respondent’s attendance.
    2. The court may hold the Hearing in a manner that reasonably accommodates the respondent, for example by telephone or in the respondent’s place of residence.
    3. The hearing is open unless it is closed by request of the respondent or any other showing of good cause. It cannot be closed over the objections of the respondent.
    4. The petitioner and proposed guardian (if different) and the respondent must attend the Hearing.
    5. Any person may request permission to participate in the proceeding.
    6. A guardian can be appointed only if the court finds by clear and convincing evidence that the respondent is an incapacitated person whose needs can not be met by less restrict means, including the use of appropriate and reasonably available technological assistance. (C.R.S. 15-14-311(1))
    7. The court must limit the guardian’s powers so as to encourage maximum self-reliance and independence of the ward. (C.R.S. 15-14-311(2))
14. Notice of Appointment (C.R.S. 15-14-311(3))Within 30 days of the appointment of the guardian, a copy of the Notice of Appointment of Guardian and/or Conservator and Notice of Right to Request Termination or Modification, with a copy of the Order, must be given to the ward (respondent) and persons listed in the petition.
15. Reports to Court (C.R.S. 15-14-317)
    1. Within 60 days after appointment, the guardian must file a report with the court on 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.
    2. Guardians must file an annual report with the court on a form provided by the court.
16. Notice of post-appointment hearings must be given to the ward and any others required by the court. (C.R.S. 15-14-309(3))
17. Emergency Guardianship (C.R.S. 15-14-312)
    1. The court may appoint an emergency guardian when substantial harm to the respondent’s health, safety or welfare is likely to occur without intervention.
    2. Emergency guardianship is limited to 60 days.
    3. Appointment of an attorney for the respondent is mandatory and continues throughout the emergency guardianship.
    4. Appointment of an emergency guardian is not a determination of incapacity.
18. A Temporary Substitute Guardian may be appointed for up to 6 months when a guardian is not performing effectively and the ward’s welfare requires. (C.R.S. 15-14-313)
19. A Successor or Co-Guardian may be named by a guardian and appointed by the court upon filing of an Acceptance of Appointment either at any time after the appointment or within 30 days after a vacancy occurs. (C.R.S. 15-14-112(3))