When someone is impaired by mental illness, physical illness or another disability, and they have not previously appointed someone to act for them through a health care power of attorney, or they have revoked their health care power of attorney, they may need a court-appointed guardian. A guardian is someone who is appointed by the courts to assist another with their personal and medical affairs. The person who needs a guardian is often referred to as a “protected person.” To find that a guardianship is necessary, the court must find that the protected person is “unable to effectively receive or evaluate information or both, 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.” A guardian has only limited authority to manage finances for the protected person. A guardian may receive the protected person’s income, such as Social Security, and pay bills. A conservator is appointed when someone has considerable assets that need managed. When a person needs help with both daily living and asset management, both a guardian and conservator may be appointed. The same individual can serve as both guardian and conservator unless the individual is a “professional caretaker.”
To be appointed as a guardian, you must file a petition with the court and interested persons must be notified of the petition. Interested persons are generally a spouse, parents, adult children, other caretakers, and the treating physician. The petition must include a letter from a doctor that indicates that a guardianship is necessary. In addition, the petitioner must file an acceptance of office attaching a background check and a credit report on themselves. The court then appoints a visitor to investigate and report to the court whether an appointment for guardian is warranted and if the person petitioning the court for appointment is a suitable person to be appointed. After all of this documentation is filed with the court, the court holds a hearing where the protected person must be present. The court will then make an appointment and issue Letters of Appointment and an Order, unless the protected person objects. The Order will require the guardian and/or conservator to file annual reports with the court.
A guardian’s responsibility will vary with the circumstances. Generally, the guardian’s powers should be no greater than necessary to see to the particular needs of the protected person. The protected person should be encouraged to maintain the greatest degree of independence under the circumstances. A guardian must ensure that the protected person is physically taken care of. The guardian is not required to physically take care of the protected person, but they must ensure that the protected person is housed in an appropriate place whether that is a nursing home, assisted living or other institutional care. A guardian’s appointment is terminated by the death of the protected person, death of the guardian or order of the court.
This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C. This information is for general informational purposes only and does not constitute legal advice. For specific questions, you should consult a qualified attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships. She can be contacted at: Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO 80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.