In general, a Colorado guardianship is an arrangement in which an individual is placed in charge of the person of another individual (called a “ward”). Colorado allows for the appointment of guardians for minors or incapacitated persons. Different than a conservator, a guardian oversees “the person” of the ward, while a conservator oversees the finances of the ward.
To be in charge of “the person” of a ward means to have the same duties and responsibilities as a parent regarding the ward’s support, care, education, health, and welfare. The guardian is required to always act in the ward’s best interests. The duties of the guardian can be expanded or restricted depending on the needs of the ward and the determination of the court.
In determining the duties of the guardian for an incapacitated person, the court evaluates the needs of the ward and then issues an order for what is necessary and no more. This requires the guardianship order to be specific as to the powers and roles of the guardian.
To assist the court in determining if and under what terms a guardianship should be issued, the court will appoint a “court visitor.” This is an individual assigned by the court to conduct a preliminary investigation of the allegations and make recommendations to the court.
Colorado allows the guardian of a minor to either be appointed by the parent or by the court. While the guardian of an incapacitated person must be appointed by the court.
A guardian for a minor ward may be appointed by the parent of the ward as follows:
- By a will or other signed writings and may specify the desired limitations upon the guardian’s powers. Up and until the appointment has been confirmed by the Court, the written instrument can be revoked or amended.
- Colorado law allows for a parent to be proactive in the care of their child(ren). If it appears the parent will become unable to care for the child within the following two years, the law allows for the appointment of a “standby” guardian. Under this circumstance, the appointment becomes effective without court approval either upon death or incapacitation of the appointing parent.
A guardian for a minor ward may be appointed by the court if:
- The appointment is in the best interests of the minor ward;
- The parents consent; or
- All parental rights have been terminated; or
- The parents are unwilling or unable to exercise their parental rights.
A guardian for an incapacitated ward may be appointed by the court if the court finds that the ward is unable to effectively receive or evaluate information or make or communicate decisions. This inability has to be severe. Effectively, the Court must find that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with technological assistance.
The role of an effective attorney in guardianship cases comes in many different forms. In uncontested guardianship cases, an experienced attorney will provide evidence to the court to support the appointment.
In contested cases, the attorney will litigate the needs (or lack thereof) for guardianship. This litigation may include calling witnesses with medical, mental health, or social work knowledge. It can also include employing experts to render opinions to the Court.
In all cases, the pleadings and required filings in guardianship cases are extensive. Burnham Law has the experience you need to present effective pleadings and be your voice in the courtroom.