At Shupe & Associates, P.C., individuals and families who need guidance when a loved one is no longer able to manage finances or health decisions without help. Often, individuals face crises without a proper plan in place such as a power of attorney or advanced directive. In such cases, the law provides an avenue whereby the court can create a guardianship or conservatorship to provide for the person in need. Shupe & Associates, P.C. helps those who seek to create a guardianship or conservatorship on behalf of a loved one or who object to its creation by another.
What You Need to Know About
Guardianships and Conservatorships in Colorado
There may come a time for all of us when we are no longer legally capable of making or communicating decisions regarding our own care. We can plan for those times through legal devices such as medical and financial powers of attorneys. Failing that, the courts provide an avenue whereby an incapacitated individual can be provided with a guardian and/or a conservator, legally empowered to make decisions for and in the best interest of the incapacitated individual. The following provides basic information about that process.
What is a guardianship?
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In a guardianship situation, an individual is deemed incapacitated by the court to such a degree that it would be in that individual’s best interest to have a guardian appointed to manage all personal decisions for that individual (called the ward). Guardianship proceedings are public processes, handled by the court, and are considered relatively drastic measures. The guardian then is wholly responsible to manage the personal decisions of the ward, doing so under a duty to act in the ward’s best interest and accountable to the court for those decisions. Those decisions include where to live, what kind of medical treatment is appropriate, etc.
What is the process for a guardianship?
A guardian can be nominated by the ward, but more commonly a guardianship proceeding is initiated by an interested party, such as an adult family member, who has concern for the ward’s well being. That interested party is not necessarily the individual eventually named guardian, though that may be the case.
If the ward is sufficiently capable or so desires, he or she can initiate the process, or can name their desired guardian in a living will or power of attorney document. More commonly, a concerned family member, an attending physician, or a social worker may initiate the process. A petition is filed with the court providing the reason for the request as well as documentation of the prospective ward’s incapacity. A potential guardian is nominated with documentation supporting that potential guardian’s eligibility and ability to act as guardian.
The court will favor as guardians individuals who are positioned to act in the ward’s best interest, such as an adult child, other relative or close friend, or individuals who had previously been acting on the ward’s behalf as medical or financial power of attorney. After reviewing the petition, the court will hold a hearing. All potentially interested parties must have been notified of that hearing and have the chance to attend. This is particularly important in contested guardianships, as the judge will want to hear all points of view to ensure that a guardianship is truly necessary and a proper guardian is chosen.
The court will also periodically (generally once a year) review reports prepared by the guardian to ensure that the guardian is continuing to act in the ward’s best interest in good faith. If, in reviewing the circumstances as a whole, the court determines that a guardian is no longer necessary, only then can the guardianship be revoked.[/expand]
What is a conservatorship?
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A conservatorship involves making financial decisions for, and managing the estate and financial affairs of, a person who is unable to make those decisions on their own. That lack of ability is not limited to mental incapacity. It may be necessary to appoint a conservator when an individual is deemed legally missing, detained, is unable to return to the United States, or has an injury or illness that makes it impossible to communicate decisions effectively. Further, conservatorships only apply when that individual has assets or resources that will be wasted without good management and when there are others entitled to that individual’s support.
What is the process for a conservatorship?
The conservatorship process is similar to the guardianship process, and in fact both petitions are often filed concurrently, given the same case number by the court, and are treated in many ways as the same.
It does not necessarily follow, however, that a guardian and a conservator will be the same person. A court may prudently find that one interested party is best suited to make financial decisions on behalf of the ward and another is best suited to make personal decisions beyond finance. The court nonetheless draws on the same pool of interested individuals and any desires of the ward to the degree that they are known in making those selections.
Important things to think about with guardianships and conservatorships
Most people view guardianship and conservatorship processes as a drastic measure, and rightly so. These processes are generally only necessary when there is no agent appointed under a power of attorney or when there is concern or disagreement regarding the agent’s actions or inaction. The court proceedings become a matter of public record and require the involvement (or at least conscious lack of involvement) of many individuals, all of whom may have competing interests and views on what is best for the potential ward. Usually, this can all be avoided by preparing a power of attorney in advance, which appoints an agent to act on your behalf. While it may be unpleasant to imagine a time when we are no longer capable of making decisions on our own behalf, we can make decisions as to what happens then by planning for that instance through living wills and powers of attorney documents.
What You Need to Know About Guardianships and Conservatorships
What is a Guardianship?
- A court can appoint a guardian for those persons who are deemed medically and legally incapable of managing all personal decisions
- It is a public process handled wholly by the court
- The guardian is wholly responsible to manage all personal decisions for the protected individual, called a ward, including where to live, what kind of medical care to receive, etc.
What is the Guardianship Process?
- Individuals can nominate their own guardian as a part of general estate planning
- Interested individuals, such as adult children, can initiate the process, though that individual is not necessarily the future guardian
- The court assesses the individual’s status and evaluates the required medical opinions
- At a public hearing, the court hears evidence for and against guardianship and ultimately makes a decision
- Court periodically (generally once a year) reviews reports prepared by the guardian to ensure that the guardianship is being properly handled and is still necessary
What is a Conservatorship?
- Similar to a guardianship but a conservator is responsible for making financial decisions and managing the estate of a person who is unable to do so on their own
- The process is similar to that of a guardianship and is often handled at the same time
- A conservator and guardian may be the same person or may be different depending on what makes the most sense in each case [/expand]
Things to Think About
- Both are drastic measures, can be costly, contested, and are public
- A good power of attorney coupled with other responsible estate planning measures can avoid these procedures and still protect your interests