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?
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.
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
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
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
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).
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:
Filing For Guardianship
Step 1: Complete Forms
- 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.
- 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.
Step 2: File Forms
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.
Step 3: Notice to Interested Person(s)
- 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 by Publication
Proof of publication by publisher