Children often look forward to adulthood, not realizing all the responsibilities and obligations that come with it. Once you are an adult, there may come a day when you find yourself unable to manage those responsibilities and obligations anymore because of an injury, illness, or disease. In some cases, a durable power of attorney for your finances or your healthcare may be enough to provide the assistance you need with these matters. In other, more severe cases, you may need someone to take charge of these things for you. Perhaps you are concerned about a relative or friend and want to assist them. Whichever direction the assistance is going, if a power of attorney may not be enough, you might consider petitioning for guardianship or conservatorship. They can be expensive and take time to petition for and be appointed, and there is no certainty that the petition will be granted. If you would like to learn more about Colorado guardianships and conservatorships, or have specific questions, the experienced family law attorneys at Johnson Law Group may be able to provide the insights and information you are looking for. Call (720) 445-4444 and schedule your consultation to discuss the specifics of your case.
A guardianship is when an individual (the guardian) is appointed as decision-maker for another person (the ward) by the court. The ward may be a minor child or a disabled or incapacitated adult. For example, a parent may need to be appointed guardian over their special needs child when the child turns 18. While guardianship is essentially the same for both minors and adults, there are some differences. In some cases, where the court believes the ward is able to make some of their own decisions, guardianships may be limited.
In a guardianship for an adult, the guardian is responsible for the ward’s well-being and personal care. The guardian will make decisions regarding the ward’s medical treatments and living arrangements and what kind of assistance or supervision the ward receives. The guardian can handle money for the ward, but only small amounts up to $24,000 per year. If the ward needs more money than that to be managed, the court will appoint a separate conservator.
Once a guardian has been appointed for an adult, they have 60 days from the date they were appointed to submit an initial care plan for the ward. They also must submit annual reports regarding the ward’s condition and the activities the ward has engaged in.
In a guardianship for a minor, the guardian assumes the same duties and responsibilities as a parent. The guardian is responsible for the minor’s protection, care, living arrangements, physical and mental health, and education. They handle matters such as signing consent forms for schools and physicians. They also arrange for the minor’s transportation, housekeeping, clothes, personal care items, and food, as well as any other needs the minor may have.
Children over the age of 12 must consent to the guardian their parents chose, if their parents appointed one in their will. If the child does not consent, or the parents did not appoint a guardian, the court will appoint one. Guardianship for minors automatically ends upon the child’s nineteenth birthday, unless the child is incapacitated. Guardianship may end sooner if the minor marries, joins the military, or begins supporting themselves financially.
Conservatorship is also the appointment of a decision-maker over another individual, but with different, more limited responsibilities. In a conservatorship, the court-appointed decision-maker is called the conservator, and the minor child or disabled or incapacitated adult over whom they have the conservatorship is called a protected person. Like guardianship, there are some differences between conservatorships for adults and for minors.
Additionally, conservatorships can be limited conservatorships. This occurs when the court limits the powers of the conservator.
In a conservatorship for an adult, the conservator is responsible for managing the protected person’s property and financial affairs. The conservator will handle matters such as paying bills, depositing checks, and taking care of the protected person’s home if they are living in a care facility. Additionally, if the protected person has ownership in a business, the conservator will continue that business or participate in operating the business.
Conservatorships for minors are different, as children typically do not have bills or own property. In this case, the conservator manages the child’s financial affairs, such as managing and investing assets appropriately. The conservator is legally obligated to use and protect the minor’s money in a fiscally responsible way that serves the best interests of the child. Colorado courts are required to appoint a conservator if the minor inherits $11,000 or more, or if the child is a beneficiary on a life insurance policy. If the minor inherits real estate or other titled property, the conservator is required to sell the asset and retain the proceeds for the minor. The conservator holds and manages the minor’s money until the minor is 21, at which point the conservatorship ends unless the minor is incapacitated.
Colorado courts tend to favor close relatives when considering an appointment for guardianship or conservatorship, but friends can also be appointed. In conservatorships, a trained professional such as an attorney can serve as a conservator if there is no trusted individual to assist the protected person.
The Colorado Judicial Branch provides several specific requirements to become a guardian or conservator for an adult. The individual who wishes to be guardian must be at least 21 years old and provide a copy of their driver’s license, criminal history, and current credit report. They must also file a petition requesting guardianship and provide evidence that the individual over whom they are seeking the guardianship is incapacitated.
The Colorado Judicial Branch provides the same requirements to become guardian or conservator for a minor. However, in these cases, the minor’s parents must also be considered. The parents must agree to the guardianship or conservatorship, or the parents must have had their parental rights terminated, be unable to care for the child (the parents have died, for example), or the minor’s previous guardian died or became incapacitated without naming a successor guardian.
Younger and older adults alike may grant a power of attorney (POA) to their spouse, parent, adult child, sibling, or other trusted individual. These POAs may be financial, allowing the agent (the person given the authority) to handle the principal’s (the person who gave the authority) financial matters, or they may be for healthcare, allowing the agent to make healthcare decisions if the principal is incapacitated. While both can be durable, allowing them to continue to be effective even if the principal is incapacitated, the financial power of attorney may be used even when the principal is competent, while the healthcare POA is only effective when the principal is unable to speak for themselves, such as when they are unconscious, in a coma, or under anesthesia.
Powers of attorney are a legal document, but they are not court orders. Guardianships and conservatorships are established by the court, which means they may supersede the POA’s authority. However, this is not always the case, and individuals petitioning for guardianship or conservatorship may need to bring the POA to the court’s attention if another individual is the agent. When bringing the POA to the court’s attention, the petitioner can also request clarification about how the guardianship or conservatorship and the POA are to interact going forward if the POA is not overridden. An experienced family law attorney with Johnson Law Group may be able to answer additional questions regarding powers of attorney.
Being appointed as someone’s guardian or conservator is not as simple as just asking for it. First, the petitioner must file the appropriate paperwork in the court district where the individual over whom they wish to have guardianship or conservatorship lives. The petitioner must also serve copies of the petition on the respondent (the person they are seeking to be guardian or conservator of) and any other interested parties. Then, a hearing will be scheduled and the hearing held. During the hearing, the petitioner will explain why they believe the guardianship or conservatorship is necessary and provide evidence to back up their claims. This evidence is often medical records, but an attorney may be able to assist petitioners in gathering other evidence that may be useful. If the court determines that there is no need for guardianship or conservatorship, the case will be closed and no further action will be taken.
If the court appoints a guardian or conservator, this individual will be required to file an Acknowledgement of Responsibilities (JDF 800) before the Letters of Appointment are issued. A Notice of Appointment will also be issued and must be served to all those who were served with the petition for the appointment, including the ward or protected person. The case is then monitored by the court until the case is terminated.
Per the Colorado Office of Public Guardianship, there are alternatives to guardianships and conservatorships. In addition to limited guardianships or limited conservatorships, other options include joint checking accounts, representative payees, living wills, supported decision-making networks, trusts, case or care management with community advocacy systems, agencies, or services, and durable powers of attorney for property, finances, or healthcare. Combinations of these alternatives may be used together to create a unique alternative that works for the individual in need of assistance and those who will be providing that assistance. If an individual is interested in exploring alternatives before pursuing a guardianship or conservatorship, they may want to consult with a Colorado family law attorney for more information.
Whether you want to put a durable power of attorney in place for future use or you are concerned that a guardianship or conservatorship may be necessary for yourself or someone you love, a knowledgeable Colorado family law attorney may be able to assist you by reviewing your case and offering suggestions of the options that may be most suited to your needs, preparing and filing any necessary paperwork, and ensuring that all parties involved are properly protected. Call Johnson Law Group at (720) 445-4444 so you can take the next steps with information and peace of mind.
Join our email list to receive the latest news and updates from our Family Law Team.
Thank you for subscribing to Johnson Law Group. You will now start receiving important information.
720-445-4444
