What is Guardianship and Conservatorship?
In Colorado, guardianships and conservatorships are both basic forms of protective proceedings, in which one party is conferred with the power and duty to take care of another person (guardianship) or to manage the finances of another person (conservatorship) when such person cannot care for themselves or their finances on their own.
Guardianship and conservatorship cases can be brought for minors, who lack legal capacity solely due to their age or who have significant financial interests to manage (such as an inheritance or personal injury settlement), and for adults who lack sufficient understanding or ability to manage their self-care or their finances.
Obtaining Guardianship and Conservatorship
In the case of a minor, the minor’s parent, or another guardian, can appoint a guardian by will or other signed writing. Otherwise, for both guardianships and conservatorships, an individual must file the appropriate petition in probate court. A hearing is then required. It can often take four to six weeks once all necessary pleadings are filed to obtain a court hearing date.
At the hearing, the petitioner must present clear and convincing evidence that guardianship and/or conservatorship is appropriate. With respect to guardianships and most conservatorships for adults, this will include medical evidence from the individual’s treating physician, typically provided in the form of a doctor’s letter.
The person seeking appointment is generally required to provide the court with a criminal background check and credit report with their petition. Parents who live with their own child and who are seeking guardianship or conservatorship over their child may request this requirement be waived. Such request is not automatically granted.
In all cases seeking appointment of a guardian, the court will appoint a court visitor, an individual whose job it is to meet with the parties involved and a prepare a written report regarding whether guardianship is merited, and discussing whether the nominated guardian is the appropriate person for appointment. The court visitor is basically an agent of the court looking to verify the facts and claims set out in the petition.
The individual over whom guardianship and conservatorship is sought, referred to as the “respondent,” is entitled to timely written notice served on them in person by a process server at least 14 days prior to the hearing date. Written notice by mail must also be provided to all other interested parties, such as parents and adult children, 14 days prior to the hearing.
Because the appointment of a guardian or a conservator deprives the respondent of their most basic personal rights, the respondent is entitled to legal representation to contest the case. The Court further has the discretion to impose only a limited guardianship and/or conservatorship, based upon the nature and severity of the respondent’s inability to care for themselves or handle finances.
Once a guardian and/or conservator is appointed, the court will issue certified “Letters of Guardianship/Conservatorship” which are the guardian’s/conservator’s proof of authority to act.
Upon appointment, the person subject to a guardianship is referred to as a “ward,” while the person subject to a conservatorship is referred to as a “protected person.”
After appointment, the guardian/conservator will be required to file reports regularly with the court, initially within 60-90 days of appointment, and then on an annual basis. The ward/protected person must be provided a copy of all reports.
As a guardian and/or conservator, an individual becomes a fiduciary under the law, requiring a very high standard of conduct with respect to the care of the ward, and of the protected person’s finances.
If a guardian or conservator is late in filing his or report, the court will take a series of steps to ensure the report is filed, up to and including holding a hearing on whether removal of the person as guardian or conservator is appropriate. Annual guardianship and conservatorship reports are carefully reviewed by the court and their own specialized staff for errors or questionable transactions.
Guardianships for minors end automatically when the ward reaches age 18. Conservatorships for minors end at age 21, pending filing of a final accounting and other final documentation. Guardianships and conservatorships for incapacitated individuals are ongoing. However, the ward or protected person is entitled to return to court and request termination of the guardianship or conservatorship if he or she can present new evidence that he or she is no longer incapacitated.
Even the most basic guardianship or conservatorship case requires knowledge of the proper pleadings, documentation, notice requirements, evidentiary standards, and other preparations to properly complete the legal process.
Solem, Harris & McKinley, P.C. regularly handles the full range of guardianship and conservatorship cases, from the basic and uncontested cases to the more complicated matters such as:
- Defense of a respondent who contests the need for guardianship or conservatorship
- Disputes between family members over who should serve as guardian or conservator
- Concerns over potential neglect by a guardian or financial abuse by a conservator