Guardian

What is Legal Guardianship?

In Colorado, individuals who are deemed incapacitated can have a legal guardian appointed by the courts. An incapacitated adult is defined in the Colorado Probate Code as an adult “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.”

A functional analysis is used to determine if the person is incapacitated. A particular diagnosis is not used to determine if a person is incapacitated. Instead, it’s based on whether the person can make decisions that are in the individual’s best interest regarding their personal affairs. Another important aspect of determining if a person is incapacitated is whether the person with the use of appropriate, reasonably available technological assistance is able to receive information to make informed decisions. For example, if the person cannot hear, access to hearing aids can help the person remain independent eliminating the need for a guardian.

A guardian may make decisions for the incapacitated adult as allowed within the scope of the guardian’s authority. The guardian’s authority and limits will be outlined in the order of appointment issued by the court. The guardian is required to see that the basic daily personal needs of the incapacitated adult for food, clothing, and shelter are met; however, the guardian is not personally responsible for paying for the incapacitated adult’s care.

Legal guardianships requests are made in the county district court where the person in question lives. There is a filling fee that varies by county. The court may order the fees to be waived if the parties involved are not able to pay.

It’s important to note that Colorado has separate duties outlined for guardianship and conservatorship. A conservatorship also has to be petitioned in the county district court to assist an incapacitated adult with their assets and finances.

Who Can Be A Legal Guardian?

Any person age 21 or older can request to be a legal guardian. The person will have to include in the petition to the court a criminal history background check and current credit report.

Types of Guardianships

Limited guardianships restrict the guardian’s authority to certain specific matters only. This is to ensure the guardian’s powers are not greater than necessary to see meet the needs of the incapacitated person.

All guardianships are limited to ensure the state’s laws are followed when seeking psychiatric treatment or substance about treatment.

An emergency guardianship can be requested in cases where there is an imminent threat. An imminent threat is described as a substantial harm to a person’s health, safety, or welfare.

Guardian Responsibilities

 A guardian may make decisions for the incapacitated adult as outlined in the scope of the guardian’s authority  approved by the court. This information can be found in the letters of guardianship issued by the court.

The guardian is required to see that the basic daily personal needs of food, clothing, and shelter are met; however, the guardian is not personally responsible for paying for the ward’s care.

It’s typical for the guardian’s authority to include where the incapacitated adult should live and arranging for and making decisions regarding the incapacitated adult’s care, medical treatment, and other services.

If the incapacitated adult has limited assets, the guardian may also need to address basic financial management services for the ward. The guardian is usually allowed to manage the incapacitated adult’s government benefits if there is no conservator appointed by the court.

Common Terms for Guardians

Guardian: A person who has qualified as a guardian for an incapacitated adult and appointed by the court.

Guardian ad Litem: A person who will interview the Respondent in person and explain their rights and make recommendations to the court.

Guardian Nominee: A person named in the petition to serve as the guardian.

Interested Persons: Persons identified by Colorado law who must be given notice of a guardianship proceeding. Includes spouse, civil union partner, living parent(s), adult child(ren), any current guardians or conservators, and others.

Letters: Official document identifying the authority of the guardian.

Order: Official document identifying the authority of the guardian and their responsibilities during the guardianship.

Petitioner: A person who files a Petition for the appointment of a guardian.

Respondent: A person for whom the appointment of a guardian is required.

Ward: The title of the Respondent (incapacitated person) who is deemed by the court to possess limited decision making capacity.

Fees for Guardianship

There are several fees to be paid during the conservatorship petition process and the fee amounts vary by county.

Filing Fees

Paid to the Court when petition is filed

Amount varies by county

If unable to pay, complete a Motion to File without Payment and Supporting Financial Affidavit (form JDF 205). Once you submit the completed JDF 205 form and a blank Order Concerning Payment of Fees (JDF 206), the Court will decide whether to waive the fee.

Certification and Copy Fees

Paid to the Court for officially certified copies of documents such as Court Orders and Letters Testamentary

Flat rate certification fee (usually around $20)

Per page copy fee (usually around $0.75 per page)

Obtain enough copies of Orders and Letter to provide to all individuals and organizations to which you may be required to provide copies

Service Fees

Several documents and filings are required to be served to all or certain parties involved in the case

Service can be performed variously by the Sheriff's Department, a private process server, or someone you know who is 18 years or older, who is not involved in the case, and who knows the rules of service, or for some forms by mail or publication

Fees will vary depending on the type of service needed.

Court Appointee Fees

The Court must appoint a Court Visitor and may appoint a Guardian ad Litem (GAL) to investigate and report back to the Court, for the purpose of determining if the guardianship is in the best interest of the Respondent.

The Court may also appoint an attorney for the Respondent to serve as an advocate for the Respondent.

The Court may require either party to pay the hourly fee of the Court Visitor, GAL or Respondent’s Counsel.

Background Check and Credit Report

The person who applies to be the guardian will need to request a name-based criminal history record and a current credit report to submit to the Court. All costs for background checks and credit reports are the responsibility of the guardian nominee.

Name-Based Criminal History Record

The person applying to be appointed guardian must submit a name-based criminal history record check from the Colorado Bureau of Investigations (CBI).

Request a background check online at colorado.gov/cbi (under the Public Background Check link), by phone at 303-239-4300, or by mail to CBI, 690 Kipling Street, Denver, CO 80215.

Current Credit Report

The person applying to be appointed guardian must submit a current credit report from one of the major credit bureaus.

Some of the major bureaus include:

  • Equifax, Inc., P.O. Box 740241, Atlanta, GA 30374, 1-800-685-1111, or at www.equifax.com
  • Experian, P.O. Box 2002, Allen, TX 75013, 1-888-397-3742, or at www.experian.com
  • TransUnion, P.O. Box 2000, Chester, PA 19022, 1-800-916-8800, or at www.transunion.com

Filing For Guardianship

Multiple forms and documents must be submitted to the Court at each step of the process.

Step 1: Complete Forms

To start the process of petitioning for a guardianship of an at-risk individual, the following forms and documents must be completed.

Petition for Appointment of Guardian for Adult (JDF 841)

  • The Petitioner completes the JDF 841 to provide the Court with information about the Respondent, including their living situation and the reasons the individual may need a guardian.
  • The JDF 841 must be signed by the Petitioner in the presence of a County Clerk or Notary Public.
  • Attach copies of a physician's letter or other professional evaluation by a qualified individual.

Acceptance of Office (JDF 805)

  • The guardian nominee (who may be the same person as the Petitioner) completes the JDF 805 to accept the nomination and to provide information for the Court to judge their suitability to serve as conservator.
  • Attach the name-based criminal background check, and current credit report for the guardian nominee to the JDF 805.
  • Submit a legible copy of the guardian nominee’s driver’s license, passport or other government-issued identification.

Letters of Guardianship - Adult (JDF 849)

The JDF 849 is submitted blank for the Court's use. Complete only the caption at the top, with the information about the case. The Court will complete the remainder of the form and sign it if a guardian is appointed.

Proposed Order - Order Appointing Emergency Guardian for Adult (JDF 843) or Order Appointing Guardian for Adult (JDF 848)

A JDF 843 is used for temporary or emergency situations. A JDF 848 is the permanent form. The JDF 843 or JDF 848 is submitted blank for the Court's use. Complete only the caption at the top, with the information about the case. The Court will complete the remainder of the form and sign it if a guardian is appointed.

Waiver of Notice (JDF 719)

Any interested person who would otherwise need to be served notice of the court action in the next phase can complete a JDF 719 and waive the need to be separately served. The Respondent cannot waive service and should not complete this form.

Irrevocable Power of Attorney (JDF 721)

The guardian nominee completes the JDF 721 only if he or she lives outside of Colorado. The JDF must be signed before a Court Clerk of Notary Public. The form allows the Court to accept all service and notices for the nominee, and to allow the Court to send those documents to a permanent mailing address of the nominee.

Step 2: File Forms

Once all the required forms are completed, they must be filed with the District Court of the county where the at-risk individual resides.

Locate the appropriate District Court to file the case. Only the appropriate District Court can hear the case.

Make copies of all the documents submitted to the Court. You will need to provide copies to all interested persons.

A filling fee of $164.00 is required. If you are unable to pay, complete form JDF 205, to file without payment, and submit it to the Court. Once you submit JDF 205 form and a blank JDF 206 form, the Court will decide whether you need to pay the filing fee.

Step 3: Notice to Interested Person(s)

All persons listed below need to be given notice of the upcoming hearing. You can either inform people by mail if you have their contact information, or by publication in a local newspaper if you do not have their contact information.
  • Spouse of the incapacitated person, if married.
  • Partner of the incapacitated person in a civil union, if the civil union is not dissolved.
  • Parents of the incapacitated person, if any.
  • Adult children of the incapacitated person, if any.
  • Any Guardian or Conservator currently acting for the incapacitated person.
  • Any person who has care and custody of the incapacitated person, including the Respondent’s treating physician.
  • Any adult with whom the Respondent has resided for more than six months within one year before the filing of the Petition.
  • Any adult relative nearest of kin, if there is no spouse, partner in a civil union, parent, or adult children.
  • Any legal representative of the Respondent.
  • Any nominated person as guardian by the Respondent.
Notice by Mail

Notice of Hearing to Interested Persons (JDF 806)

If the address of any interested person(s) are known, the Petitioner should complete a JDF 806 and mail a copy to all interested person(s), including copies of all documents filed with the Court. The JDF 806 must be mailed at least 14 days before the hearing. The Petitioner then completes and files the Certification of Service section with the Court to certify all interested person(s) with known addresses have been served.
Notice by Publication

Notice of Hearing by Publication (JDF 716)

If the address of any interested person is unknown, the Petitioner must serve notice by publication in a newspaper of general circulation in the county of the Court. The Petitioner should complete a JDF 716 provide to the newspaper for publication of the relevant information. The notice must be published once a week for three consecutive weeks, with the last date of publication being at least 14 days before the hearing date.

Affidavit Regarding Due Diligence and Proof of Publication (JDF 714)

The Petitioner completes a JDF 714 and files it with the Court to certify that all interested person(s) with unknown addresses have been sufficiently service notice by publication. The JDF 714 must be accompanied by Proof of Publication from the newspaper and must be signed in the presence of the Court Clerk or Notary Public.

Proof of publication by publisher

The publisher of the newspaper must provide a signed affidavit of publication to certify to the Court that the newspaper published the notice. This must accompany the JDF 714.
Personal Service to Respondent

Notice of Hearing to Respondent (Adult or Minor) (JDF 807)

The Petitioner must complete a JDF 807 and personally serve a copy of it to the Respondent at least 14 days prior to the hearing. The service must be performed by the county Sheriff's Department, a private process server, or an uninvolved adult who knows the rules of service. The server must complete the Return of Service section of the form. The Petitioner then files the completed JDF 807 with the Court.

Step 4: Hearing

Both the Petitioner and Respondent must attend the Hearing. Interested person(s) are not required to attend. If the Respondent cannot attend, the Petitioner should file a Motion to Excuse the Respondent and attach appropriate documentation. During the hearing the Petitioner and Respondent will have a chance to present evidence in the case. The Petitioner needs to be prepared to present evidence as to why this guardianship is necessary and that the interested persons are aware of the proceedings and that they consent to the guardianship.

Letters of Guardianship (JDF 849)

If the Court appoints a guardian, it will complete the JDF 849 initially filed by the Petitioner and provide it to the Guardian.

Signed Order - Order Appointing Emergency Guardian for Adult (JDF 843) or Order Appointing Guardian for Adult (JDF 848)

If the Court appoints a guardian, it will complete the Order JDF 843 or JDF 848 initially filed by the Petitioner and provide it to the guardian. Copies of the Order must be provided to all interested person(s) identified in the Order.

Step 5: Post-Appointment Filings

After the Court has appointed a guardian, the guardian must file several additional forms with the Court to report the condition of the ward's affairs. The guardian is also responsible for ongoing filings with the Court until the guardianship is terminated.

Acknowledgement of Responsibilities (JDF 800)

The guardian completes a JDF 800 to certify to the court that he or she has reviewed all the required training, and understand the legal responsibilities he or she bears to the Court and to the ward.

Probate Case Information Sheet (JDF 705)

The guardian completes a JDF 705 to formally identify the ward and the guardian to the Court. The initial Letters will not be issued before this form is filed. This form must be re-filed any time there is a change in the guardian, including co-guardians and successor guardians.

Notice of Appointment of Guardian and/or Conservator (JDF 812)

Within 30 dates of the appointment of the guardian, the ward and all interested persons must be served with a JDF 885 and an attached copy of the Order (JDF 843 or JDF 848). The JDF 885 and the Certificate of Service section must then be filed with the Court by the Conservator.

Guardian's Report (JDF 850)

The Court will determine when the guardian must file an annual report of the state of the ward's affairs on the JDF 850. The filing deadline will be listed in the Order (JDF 843 or JDF 848). The initial report is usually required within 60 days of the order. In all subsequent Annual Reports the Guardian will need to have a new care plan, the care plan from the previous year cannot be used.
 

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