You might be considering the possibility of filing a conservatorship or guardianship to assist someone else or a loved one. There are many options, and a court proceeding is one of them. Assuming the role as conservator or guardian is an important responsibility. These proceedings give a lot of power to do many things. However, it is not the only option. In fact, it should not be your first or second option. These proceedings have grave constitutional restrictions that should be considered. You are basically taking over the person’s constitutional right to do certain things. Because of that, they should be used only when there is not a lesser restrictive alternative.
The first alternative is whether you operate and assist this person without any authority at all. Can the person generally take care of themselves, but you assist on a limited basis? In that case, you may not need to do anything; however, you should probably consider the second alternative in case incapacity is looming.
The second alternative is a power of attorney. There is a medical one and financial one. You can review each of them on our Resources page. If you are able to access the Colorado Revised Statutes, there is a statutory form under C.R.S. Section 15-14-741. These forms are approved by the State of Colorado’s Judicial Branch, but I recommend having an attorney review it. Statutes change over the years, and the linked forms could be out of date. There might be referenced clauses and statutes that require further explanation. An attorney can advise you on the importance of a power of attorney and other options available. He or she can also distance you from the presumption of undue influence. If an attorney is retained, he can protect the interest of the principal, i.e., the person you are trying to help. If you intend to take on this responsibility, be mindful that you have fiduciary and confidential duties to this person that can be addressed here at the Colorado Bar Association’s website. There are also general powers and specific powers given to the agent that need to be addressed.
If the person has the capacity to sign a power of attorney, this is the best alternative. If you are concerned about his or her capacity, speak with the person’s primary care physician and ask if the doctor can make a determination of capacity. You can also get an independent medical evaluation. As attorneys, we determine capacity before clients sign important documents as a precaution, but you should defer to the person’s doctor if there are concerns.
One advantage of a power of attorney over a conservatorship or guardianship is cost. Generally, a power of attorney drafted by an attorney may only cost $250-$300. It is also a private matter without the court’s involvement. With a conservatorship or guardianship, it may cost $2,000 or more. There are filing fees, notice requirements, court visitors, and hearing to determine whether this proceeding is necessary. After appointment, annual reports are due and scrutinized. Even if the person’s capacity is in question, the person may not want to give up any freedoms and it becomes a difficult process. If it is contested, the cost skyrockets.
If the person does not have the capacity to sign a power of attorney, you may have to file a conservatorship or guardianship. These are court proceedings, supervised by the judge and the court clerks.
A conservatorship is a proceeding where someone is appointed as the conservator to manage the assets of the protected person, much like a trustee. However, unlike a trustee, you are appointed by the court because the person is unable to manage their own finances, and it is either by consent or against their will.
A guardianship is a proceeding where someone is appointed to manage the person, usually their medical decisions and residency when they cannot do it themselves.
Both appointments have the ability to file a Medicaid application for the person.
If the person has medical and asset issues, consider filing for both proceedings. It will save time and cost to file them at the same time. If you think you need to be appointed immediately, you can file emergency proceedings, but you will need more evidence to prove that an emergency is necessary. If that is filed, an attorney will be court-appointed immediately to protect the interest of protected person. After the petitions are filed, a court visitor will interview all interested parties to determine if these proceedings are necessary and will make a recommendation the court. In these types of cases, you must have a hearing with the respondent present (there are exceptions to excusing the respondent if circumstances should allow it). They have the right to an attorney. These proceedings are not permanent. They can be terminated at any time upon filing a petition to terminate if proceedings are no longer necessary.
The Colorado Bar Association has more information regarding what to do after the appointment here: https://www.cobar.org/index.cfm/ID/20301
If you are in this situation, the process is not straight-forward. If you need assistance, please call the Grand Junction Estate Attorneys Reams & Reams at (970) 242-7847
