Frequently Asked Questions
Guardianship and Conservatorship for Adults
- What is a guardian?
- What is a conservator?
- Who is an incapacitated adult?
- Who can be a guardian or conservator of an adult?
- What are the duties and responsibilities of a guardian?
- What are the duties and responsibilities of a conservator?
- What is limited guardianship and conservatorship?
- Is a guardian financially responsible and legally liable for a ward?
- How are guardians and conservators appointed?
- How are guardianship and conservatorship terminated?
- How are guardianship and conservatorship changed?
- Is it possible to get an emergency guardianship?
- Can a guardian designate another person to act for him/her if the guardian will be unavailable for a period of time?
- Can a guardianship and conservatorship be transferred to another county or state?
- Can a guardian or conservator live in a different state from the ward or protected person?
- Can guardianship and conservatorship be transferred to Colorado from another state?
- Can two or more persons be guardians of one ward?
- What is a guardian ad litem?
- What is a single transaction?
Durable Powers of Attorney
- What is a durable power of attorney?
- Who can prepare a power of attorney?
- Who can be an agent under a power of attorney?
- How is a power of attorney set up?
- How much power or authority does an agent have?
- How is a power of attorney revoked?
- What if a person prepares a power of attorney and later has a guardian or conservator appointed for him/her? Who has authority and for what?
- Can an agent resign?
- What happens if an agent dies or resigns? Who can take over the power of attorney?
Guardianship and Conservatorship
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:
- guardian/direct service providers; or
- conservator/direct service provider. (C.R.S. 15-14-413(6)(a))
- Make decisions only as necessitated by the ward’s limitations.
- Encourage the ward to participate in decisions, act on his/her own behalf and develop or regain the capacity to manage his/her own personal affairs.
- When making decisions, consider the expressed desires and personal values of the ward to the extent known; if not, make decisions based upon the ward’s best interest.
- Determine where the ward should live.
- Arrange for and make decisions about care, medical treatment or other services for the ward.
- See that the basic daily personal needs of the ward are met, including food, clothing and shelter.
- Financial management for a ward with limited assets if there is no conservator.
- Within 60 days after the appointment, guardians must file a report which includes a personal care plan for the ward.
- Submit annual reports to the court regarding the status of the guardianship and condition of the ward.
- Obtain permission from the court to move the ward out of the State of Colorado.
For an in-depth discussion of the duties and responsibilities of a guardian, seeIntroduction to Guardianship for an Adult in Colorado on the Educational Materials page.
- Make decisions which the protected person would have made, if known, if not, make decisions based upon the protected person’s best interest.
- Furnish a bond (unless determined otherwise by the court) to protect cash and other assets; or take other steps to protect the ward’s assets.
- File a financial plan with the court within 90 days of appointment and file amendments as necessary.
- File a detailed inventory of the protected person’s estate within 90 days of appointment.
- File an annual report with the court.
- With court approval, and in consideration of the decision that the person would have made, if known, a conservator may:
- make gifts;
- convey, release, disclaim interests;
- create, revoke or amend trusts;
- exercise rights and change beneficiaries under retirement plans, insurance and annuities;
- exercise rights to elective shares;
- make, amend, or revoke the person’s will.
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, seeIntroduction 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:
- required to provide for a ward out of his/her own funds,
- required to provide actual physical custody of the ward,
- liable for a ward’s actions and behaviors,
- liable for harm to a ward caused by a caregiver selected by the guardian.
Liability of conservators is similarly protected. For details see C.R.S. 15-14-430.
- A Petition is filed with the District Court in the county in which the alleged incapacitated person lives. In Denver, it is filed with the Probate Court. A petition can be initiated by any interested person or agency.
- There is a $164 filing fee which is payable when the petition is filed. There is also a fee for the court visitor. 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.
- In a petition for guardianship, 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)
- A description of the nature, type, and extent of the respondent’s specific cognitive and functional limitations, if any;
- An evaluation of the respondent’s mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
- A prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and
- The date of any assessment or examination upon which the report is based.
- In addition to general information about the respondent and the need for guardianship, the petition must specify the type of guardianship requested and names and addresses of interested persons, including the respondent’s treating physician.
- The court visitor must meet with the respondent (alleged incapacitated person), the petitioner and proposed guardian and anyone else deemed necessary, to determine the need for the guardianship. The visitor files a written report with the court with a recommendation about the guardianship.
- Notices of the hearing on the petition must be personally served on the Respondent and delivered or mailed to interested persons who are listed on the petition.
- The respondent is required to attend the hearing, unless excused by the court for good cause.
- The petitioner and proposed guardian(s) and/or conservator(s) must attend the hearing.
- Within 30 days after the appointment, the guardian and/or conservator is required to give notice of the appointment to the ward, protected person and other interested parties.
- Within 60 days after the appointment, guardians must file a report which includes a personal care plan for the ward. Within 90 days, conservators must file a financial plan which compares projected income and expenses and includes a plan to address the needs of the protected person and management of the estate. In addition, within ninety days after appointment, a conservator must file a detailed inventory of the estate.
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)
13. Can a guardian designate another person to act for him/her if the guardian will be unavailable for a period of time?
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)
Durable Powers of Attorney
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.
7. What if a person prepares a power of attorney and later has a guardian or conservator appointed for him/her? Who has authority and for what? (C.R.S. 15-14-501(1))
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.