Colorado’s Citizen Legislature – Mar. 2016
~ By Doris Beaver ~
As each of us age and slip into that group referred to as “older” citizens (elderly is no longer the respectful term), various everyday actions take on greater or different meaning. Most readers give little thought to the freedom of communication we exercise so freely in normal day activities.
Senate Bill 16-026: The issue for SB 026 are the personal rights of protected persons, and limiting the ability of a guardian or conservator to isolate a protected person. The issue can be a nightmare for those caught in the middle of such disputes, especially in today’s world of second, third and blended families, and when mega estates are at stake.
A protected person is described as a “minor or other individual, such as an incapacitated adult for whom a guardian or conservator has been appointed because the protected person is unable to effectively evaluate information, make decisions or communicate on their own behalf.”
As introduced, various considerations and actions a court can take in regard to a person’s ability to interact with a protected person include:
- grant a person access to the protected person;
- restrict or further restrict a person’s access to the protected person;
- modify the guardian or conservator’s duties or
- remove the conservator or guardian.
SB 026 was amended in Judiciary Committee hearing to provide for the court’s constructive application of the Colorado Revised Statutes in a manner that “maximizes the protection of the personal rights of each protected person.”
Further amendment included an addition to Section 1, Colorado Revised Statutes, 15-14-119.5 (short title “Peter Falk Act”): (4) (a) “As used in this section, unless the context otherwise requires, “Closest family member of the protected person” means, in order:
- a spouse of the protected person or a partner of the protected person in a civil union;
- an adult child of the protected person;
- a parent of the protected person, or
- an adult nearest in kinship to the protected person.
Additionally, Paragraph (b) notwithstanding paragraph (4)(a) states, “Closest family member of the protected person does not include an individual who is a guardian of the protected person.”
Paragraph (c) then, “If more than one person qualifies as the closest family member pursuant to paragraph (a) of this subsection (4), if there are two such persons, then notice must be provided to both persons; and if there are more than two such persons, then notice must be provided to the two oldest such persons.”
Readers should beware, this a very complicated issue as is telling of the specificity and wording of the amendment by the Judiciary Committee.
SB 026 also includes provisions for timely hearings or when the protected person’s health so requires. Sanctions may also be imposed on a guardian or conservator found to knowingly isolate a protected person.
Sponsor of Senate Bill 16-026: Senator Laura J. Woods (D-Jefferson) 866-4840. No sponsor as yet in the House of Representatives.
House Bill 16-1027: HB 1027 concerns depositions in criminal cases in which an at-risk person may not be available for trial.
This bill expands and streamlines the use of recorded depositions for at-risk elders. Other provisions include the requirement that a court must schedule a recorded deposition “upon receipt of a motion without further findings if the victim or witness is an at-risk elder” (any person 70 years of age or older) stating victim or witness may be unavailable at trial. HB 1027 also allows for the motion to be challenged by the defense for recorded depositions of other at-risk adults.
HB 1027 provides for significant discretion by the court in such cases under the premise that filing the motion “creates a rebuttable presumption that a deposition should be taken to prevent injustice.”
Statistics from the fiscal impact analysis indicate, “In the last three years, there have been approximately 2,000 cases with at least one charge of a crime against an at-risk individual.”
Sponsors of House Bill 16-1027: Representative Jessie Danielson (D-Jefferson) 866-5522. No sponsor as yet in the Senate.
Doris Beaver
Doris Beaver is a free lance journalist who writes from her home high in the Colorado Rocky Mountains on senior issues, politics, ethics and environmental issues. Visit her website or e-mail her at doris@dorisbeaver.com, www.dorisbeaver.com.