A guardian is a person or persons appointed by a court to assist with the personal affairs and make decisions on behalf of a minor or an adult who is incapacitated. A person under a guardianship is called a ward.
A conservator is a person, or persons, appointed by a court to manage finances and property for an adult who is incapacitated, and whose assets may be wasted or dissipated unless management is provided; or if protection is necessary for the adult to obtain or provide money for the individual’s or his/her dependent’s support. A person under a conservatorship is called a protected person. The appointment of a conservator is not a determination of incapacity of a protected person. (Colorado Revised Statutes 15-14-409(4)) Conservatorship is usually not necessary for a person with limited assets such as low income from wages, Social Security, Supplemental Security Income (SSI), or small pensions. A rule of thumb is that conservatorship is not necessary if the person only has enough income and assets to meet his/her daily needs.
An adult “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))
Any person, age 21 or older may be appointed as a guardian and/or conservator. However, under Colorado law, long-term care providers are prohibited from serving as guardian or conservator for a person for whom they provide care unless related by blood, marriage or adoption. (C.R.S. 15-14-413(5)) In addition, professional guardians and conservators (who earn a fee for their services) may not serve the same person as both:
For an in-depth discussion of the duties and responsibilities of a guardian, see Introduction to Guardianship for an Adult in Colorado on the Educational Materials page.
In general, a conservator’s powers include all powers over the estate and affairs the person could exercise if not under conservatorship. (C.R.S. 15-14-410) Powers of a conservator are described in Colorado Revised Statutes 15-14-425.
For an in-depth discussion of the duties and responsibilities of a conservator, see Introduction to Conservatorship for an Adult in Colorado on the Educational Materials page.
Limited means that the guardian’s or conservator’s authority is limited to specific matters only. Colorado law presumes that only limited guardianship and conservatorship are necessary in all cases. When requesting unlimited guardianship and/or conservatorship, the petitioner must explain why limited guardianship and/or conservatorship is not appropriate.
A guardian is not:
Liability of conservators is similarly protected. For details see C.R.S. 15-14-430.
For an in-depth discussion of the appointment procedure, see Procedure for Appointment of a Guardian for an Adult on the Educational Materials page.
A guardianship and conservatorship terminates upon death of the ward or protected person. In addition, an appointment may be terminated if the ward or protected person no longer meets the standard for establishing the guardianship or conservatorship (clear and convincing evidence).
A ward, protected person, guardian, conservator or any interested person may petition for removal of a guardian or conservator on the grounds that removal would be in the best interest of the ward or protected person or for other good cause. Before terminating a guardianship and conservatorship, the court will follow the same procedures to safeguard the rights of the ward or protected person as apply to a petition for guardianship and conservatorship. A guardian and conservator may resign with court approval. A petition for removal of a guardian or permission to resign may include a request for appointment of a successor guardian. (C.R.S. 15-14-112 and 318 and 431(1) and (2))
The court may modify the type of appointment or powers originally granted to a 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.
An additional guardian or conservator (co-guardian or co-conservator) may be appointed and can take effect immediately or upon a designated event, such as the death of the current guardian or conservator. An Acceptance of Appointment may be filed at any time after the appointment, but not later than 30 days after the occurrence of the vacancy or other designated event. The additional or successor guardian or conservator succeeds to the same powers held by the original guardian and conservator. (C.R.S. 15-14-112(3))
The court may appoint a guardian on an emergency basis if it finds that substantial harm to a person’s health, safety, or welfare is likely to result without an emergency guardian being appointed and if no other person has authority to act in the circumstances. An attorney is always appointed to represent the respondent and the emergency guardianship may not exceed 60 days. Such an appointment is not a determination of the respondent’s incapacity. (C.R.S. 15-14-312)
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)
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))
Yes, as long as the guardian or conservator can be contacted. The guardian or conservator should arrange to meet personally with the ward or protected person at least two to three times per year to keep him/herself informed of the ward’s or protected person’s needs and circumstances.
Yes, if the ward or protected person moves or will be moving into Colorado. Proof of the appointment in the other states must be provided along with a petition to transfer. Usual procedures are followed to notify the ward/protected person and interested persons of the hearing and subsequent appointment. (C.R.S. 15-14-107(3))
Yes, it is a good ideas to have co-guardians. In case one person is not able to continue there is another guardian in place. When signatures are required, it is not necessary for all co-guardians to sign, unless the court so orders.
A guardian ad litem is appointed by the court to represent the best interests of a respondent in a proceeding as the court deems necessary. The court must specify the duties of the guardian ad litem upon the appointment. In adult guardianship cases, a guardian ad litem usually does not continue to serve after appointment of a guardian.
A court may approve a single transaction on behalf of an individual who needs a protective order, but not an on-going conservatorship. Under a single transaction the court may authorize, direct or ratify any transaction necessary or desirable to achieve any arrangements for security, service or care meeting the foreseeable needs of the protected person. (C.R.S. 15-14-412)
A power of attorney is a document used by a person (the Principal) to give authority to another person or persons (the Agent or Attorney in Fact) to make decisions and transact business on behalf of the Principal. A durable power of attorney document must contain language which states that “the power of attorney shall not be affected by disability of the principal” or “this power of attorney shall become effective upon the disability of the principal,” or similar words to state that the Principal intends for the power to continue in spite of or his/her subsequent disability or illness.
In Colorado there are two kinds of durable powers of attorney. A Medical Durable Power of Attorney which generally gives the agent authority to make medical and personal decisions. A General Durable Power of Attorney or Power of Attorney for Property gives the agent authority to manage the agent’s finances, property and transact business. In both cases, the agent has authority as described in the power of attorney document.
For more information about durable powers of attorney, see Durable Powers of Attorney on the Educational Materials page.
A power of attorney can be prepared by any adult over age 18 who understands the consequences of the power of attorney document. Generally a person must be considered to have decisional capacity. A person must not be forced to sign a power of attorney.
An agent under power of attorney must be at least 21 years of age. It is important for the principal to select someone he/she knows well and trusts.
Attorneys who specialize in probate and estate law prepare powers of attorney. They are often prepared in combination with wills. It is the attorney’s responsibility to assure that the principal understands the powers of attorney and the consequences. There are also preprinted forms available in some health care agencies and office supply stores.
Agents have whatever authority is granted to them in the document. Agents are obligated to make decisions based upon the preferences and desires of the principal and may not override the wishes of the principal. (C.R.S. 15-14-506(4)(a))
A power of attorney can be revoked by the principal at any time even if the principal lacks capacity to understand his/her actions. (C.R.S.15-14-604(2)) A person does not give up his/her rights when establishing a power of attorney. A power of attorney terminates when the principal dies.
If a medical durable power of attorney is in place and a guardian is later appointed for the principal, the agent has priority to make medical treatment decisions over the guardian, unless the power of attorney is revoked by the court. An agent under a medical power of attorney must consult with the guardian on matters concerning the principal’s personal care. Further, unless restricted by the guardian’s court order, a guardian has power to revoke, suspend or terminate all or any part of the power of attorney with respect to the principal’s personal care but not with respect to medical treatment as stated above.
If a conservator is appointed for a principal, the agent must account to the conservator on matters concerning the principal’s financial affairs. The conservator has the power to revoke, suspend or terminate all or any part of the power of attorney relating the financial matters.
An agent may resign according to the terms and conditions stated in the power of attorney. In writing, the agent must notify the principal, the guardian and/or conservator, if any, any successor agent named in the document and all reasonably ascertainable third parties who might be affected by the resignation. (C.R.S. 15-14-(4)
No one can take over power of attorney unless the principal names a secondary agent in the document or if the principal authorizes the agent to appoint a successor agent. If neither is possible, and the principal has become incapacitated, it may be necessary to petition the court for appointment of a guardian.