Douglas S. Holden
Guardianship & Conservatorship
A Guardian is a person who takes care of another person. A conservator is a person who takes care of the assets and income of another person. Depending on the circumstances, only one or the other is necessary, however, it may also be appropriate to obtain both a guardianship and a conservatorship. The person who is protected by the guardian is called a “Ward” or a “Protected Person.” The person who has assets and income that are protected by the conservator is called the “Protected Person.”
In Colorado, we have a special group of statutes called, The Colorado Uniform Guardianship and Protective Proceedings Act (the “Act”). In this Act, there is an emphasis on limited guardianship and conservatorship. What this means is that courts are concerned about restricting a ward or protected person beyond that which is necessary. There are some circumstances where a court might forego a conservatorship and give the guardian power to handle minimal assets.
An interesting fact about adults who are disabled or incapacitated is that parents of the ward or protected person lose their authority to act on behalf of their child when he or she attains the age of 18. As you can imagine, parents may have taken care of their child from birth and now the child is 40 years old and continues to need the same care. Since the parents lose their authority when the child attains the age of 18, an appointment as a guardian and conservator is suggested.
For a guardianship, the proposed ward must be deemed “incapacitated.” The Colorado Act defines incapacity of persons who are 18 or older very specifically. Here, an incapacitated person is defined as: “[A]n individual other than a minor, 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.”
For a conservatorship, the determination is different from that of a guardianship. The protected person must be able to manage his or her property due to an inability to effectively receive or evaluate information or both, or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance. Note that a conservatorship does not require a determination of incapacity. On the other hand, it must be established that the protected person has property that will be wasted or dissipated without proper management, or the protected person needs funds for his or her support, care, and welfare, or that of his or her dependents, and protection will facilitate getting those funds.
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