Legal safeguards are available to protect the interests of adults having difficulty with self care or finances.
Three main scenarios can evolve in which the appointment of a guardian or conservator may be in the best interest of an adult because that person is not able to make his or her own decisions or provide for his or her own care without help and support:
- An adult may have an accident or get an illness that causes physical or mental limitations.
- Physical or mental disability may evolve in association with the aging process.
- A child with a developmental disability, mental illness or physical disability reaches the age of 18 and becomes an independent adult.
Broadly, a guardian is a person appointed by the state court to assume responsibility for an incapacitated person's physical, emotional and mental needs. For example, a guardian makes decisions in the incapacitated person's best interest concerning medical, residential, safety, vocational and similar kinds of personal care services needed. A guardian also protects the person's personal property.
In certain circumstances, the court may appoint a conservator to help a person unable to manage his or her money, property or business interests. A conservator may receive essentially full powers to manage the protected person's financial affairs or the court may craft a more limited conservatorship in which the conservator only receives certain responsibilities such as, for example, management of a particular bank account, assistance with paying bills or managing a business.
Sometimes a person requires both a guardian and a conservator, but sometimes only one is appropriate.
Guardianship and conservatorship laws and court procedures in Colorado are extremely complex. This is only a broad introduction. Legal counsel should be consulted for advice in a given situation.
It should be noted that before guardianship or conservatorship becomes necessary, other protections can be put into place in appropriate instances. For example, a state court may issue a protective order to assist with some aspect of a person's life such as initiation of a one-time transaction.
Similarly, part of important estate planning for a competent adult in Colorado should include executing an advanced medical directive like a living will to specify the person's instructions to family and physicians should the person become unable to direct his or her own medical care or end-of-life decisions. A health care power of attorney is used to appoint someone to act as an agent to make medical decisions on behalf of the person should he or she become unable to do so independently.
Execution of a power of attorney gives authority to a close family member, friend or professional to take over the person's financial affairs should illness incapacitate the person in the future. It may be sufficient for an adult who is still competent to add an adult child to the person's checking account as a co-signer. Each situation is unique. An attorney can answer questions about these devices as well as assist with drafting and executing them.
However, despite these safeguards and in the kinds of scenarios described above, concerned family members and close friends may consider whether guardianship or conservatorship is a step they should take to protect a vulnerable loved one. If you have questions about guardianship or conservatorship or already know that you need to file for appointment by the state court, seek the advice, counsel and representation of an experienced probate lawyer.
From her office in Arvada, attorney Karen Brady of the Law Offices of Karen Brady, P.C., serves clients throughout the Denver area and across the state in matters of guardianship, conservatorship and other legal tools to assist individuals with incapacity and similar concerns.