Most of us take for granted our ability to take care of our daily needs. At times it brings monotony to our existence. However, for some individuals they do not have the mental or physical ability to take care of their daily needs. And in a majority of those cases these individuals do not have any documentation in place detailing who should take care of their daily needs. In the event there is nothing in place, a Guardianship will need to be established by the Court. This blog outlines how the Court defines incapacity, the guardianship process, reporting requirement and alternatives.
What is Incapacity?
What does it mean to be incapacitated? For a guardian to be appointed evidence must be presented to the court to reach the state, legal definition. In Colorado, an incapacitated individual is defined as: someone who is unable to take in information or communicate their decisions to the extent that the person does not have the ability to maintain their physical health, safety or self-care. In the majority of cases, this incapacity is a direct result of medical condition.
Process in Colorado
- Moving forward, the person seeking to be a guardian needs to gather documentation of the protected person’s incapacity. This documentation is filed with the Petition to the Court seeking the appointment of the guardian.
- The Court appoints a third-party to serve as Court Visitor to go to the guardian’s home to visit the protected person in their everyday environment. The Court Visitor will then submit a report to the Court detailing what they observed.
- A hearing is scheduled for the guardian to present evidence supporting their position that guardianship should be established. In cases where the protected person objects to the appointment of the guardian, they will have an opportunity during the hearing to present their evidence against the proposed appointment.
- At the end of the hearing, the Court will either grant or deny the Petition seeking the appointment of the guardian. Where the Court grants the guardianship, the Court will issue an Order and letters of guardianship. The Court will also require the appointed guardian to submit yearly reports.
Once appointed as Guardian/Conservator you are responsible for reporting to the Court each year. These annual reports are necessary to keep the Court informed on the life of the protected person. The reports must include an update on the current condition of the protected person, their current living arrangements, services being provided to the protected person, as well as plans for future care. The Court may also, at their discretion, appoint a visitor or another third-party to review the report or also interview the protected person.
Durable financial power of attorney can be used as an alternative. A durable financial power of attorney gives specifically named individuals the authority to act on your behalf if you are incapacitated. Generally, the durable power of attorney encompasses financial transactions such as, banking, real estate, investments, etc.
Some problems may arise with a durable power of attorney. Financial institutions have the discretion to either accept or reject the durable power of attorney. For example, a bank may reject the use of the power of attorney because it has not been signed in the last year. The durable power of attorney may be rejected because the wording is not specific enough. Perhaps it says the agent has ‘general banking powers’ and because it does specifically say the agent may close the account the bank will not all the agent to act.
If you have more questions about establishing a guardianship or learning more about how to avoid a guardianship court proceeding contact our office.
About Jessica Showers
As an Estate Planning Attorney with Hammond Law Group, Jessica Showers focuses her practice on creating proactive and comprehensive estate plans for her clients. Mrs. Showers values learning what is truly important to each individual client and their families in order to ensure their interests are protected by their estate plan. More »