Assuming Guardianship

Note from The Arc Pikes Peak Region: 

While Guardianship is necessary for some individuals, it is also the most restrictive form of care. Before deciding that guardianship is right for the individual with IDD, we encourage everyone to explore less restrictive options such as Supported Decision Making.

Purchase a Guardianship Packet

Philosophy:

The majority of adults who are developmentally disabled can manage their own affairs with informal assistance and guidance from family, friends, citizen advocates and service agency personnel. The adult acting on his own behalf must have some ability to foresee and appreciate future consequences of present day decision, actions, or failure to act. Consequently, some individuals may require the more formal protection and assistance provided by a guardian who is appointed by a court and is legally empowered to act on their behalf. The Arc believes the decision to seek guardianship should be made ONLY to enhance rather than limit a person’s ability to exercise his or her rights. Barring evidence to the contrary and if they so choose, parents should be viewed as qualified and concerned guardians of their adult offspring who are developmentally disabled.

Information Regarding Guardianship:

Parental Authority: When a person reaches age 18, a parent’s legal authority to make decisions for that person ceases.

Needed for Guardian:

  1. The law presumes a person to be competent at age 18. The question of whether or not an adult with developmental disabilities needs a guardian poses a serious question. The deprivation of an adult’s right to make decisions directly affecting his/her life is a serious matter.
  2. The appointment of a guardian requires that a petition be filed with the court which declares the person to be “incapacitated.”
  3. For persons with a mental incapacity so severe as to prevent them from significant decision making, guardianship offers both protection and enhancement of individual rights. The only consideration of the Court is whether or not an individual has the ability to give “informed consent.”

Definitions:

Means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause to the event that he or she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person.

A person, agency or corporation appointed by the Colorado Probate Court to represent the interest of, act on behalf of, make decisions for and substitute consent for a person declared to be incapacitate.

A person for whom a guardian has been appointed. A “minor ward” is a minor for whom a guardian has been appointed solely because of age.

A person appointed by the court to evaluate a person for guardianship proceedings.

Sometimes touted as an alternative to guardianship, it permits a person to transfer some or all authority over his/her life and estate to a person of his/her choosing.

The legal doctrine that guarantees statutory and constitutional rights.

A person appointed by a judge to evaluate the alleged incompetent person.

The court must appoint a court appointed visitor who shall meet, interview, and consult with the person. The visitor will explain the basis of the guardianship petition, the nature, purpose and effect of the guardianship proceedings and the general powers of the guardian. The visitor must also determine the person’s views on the imposition of the guardianship, the scope of the guardianship and the appointment of the proposed person to be the guardian. The visitor is required to explain that the “incapacitated” person has a right to have an attorney, and if her or she cannot afford an attorney, the court will provide an attorney without cost.

Furthermore, the visitor must interview the person seeking appointment as guardian, visit the present home of the incapacitated person and the proposed future residence of that person, and interview any physicians or other persons who have counseled or given treatment to the allegedly incapacitated person in the recent past.

After making these visits, the visitor files a written report to the court that describes any current incapacity or disability of the incapacitated person, the fitness of the proposed guardian and any recommendation to limit the powers of the guardian. The report will include any expression of approval or disapproval by the incapacitated person concerning the guardianship and any request for appointment of an attorney to represent the incapacitated person. If such a request is not made, then the visitor should make a recommendation as to whether or not an attorney should be appointed to represent he incapacitated person.

Guardianship legal book

Authority and Responsibility of a Guardian:

  • Any competent adult (residing in or out of Colorado) or suitable agency can be appointed as guardian.
  • In appointing a guardian, the court considers the qualities needed by the guardian to fill this role effectively. Those qualities would minimally include an understanding of developmental disabilities and the individual and the ability to relate to the ward so as to understand and represent his or her needs and desires effectively.
  • Guardians are responsible for acting in the best interest of their ward.
  • Guardians are not liable for the actions of their ward.
  • Guardians are not financially responsible for the “care and custody” of their ward.
  • Guardianship is not a tool to manage problem behaviors. Guardianship’s are not designed to override or contradict a person’s wishes but to substitute consent.
  • A guardianship can be altered or modified at any time by Court order.
  • A guardian should be available for emergency services.
  • A guardian can provide consent for medical treatment in accordance with the orders of the Probate Court. Referral to the Probate Court of decisions regarding withdrawal of treatment.
  • A guardian must provide a written report to the Probate Court yearly on the status of the ward.

So you want to be a guardian:

Under the new statute there is not a provision for appointment of a temporary guardian. Instead, an emergency guardian may be appointed for up to 60 days if there is cause for concern of substantial harm to the ward’s health, safety or welfare. Appointment of an emergency is not a determination of incapacity. If a guardian is not performing effectively a temporary substitute guardian may be appointed for up to six months.

Reports that a guardian must submit have been expanded to include a personal care plan, accounting for assets within 60 days of appointment. Annual reports from the guardian are required that include: current mental, physical and social condition of the ward’s living arrangement; medical, educational and vocational services and adequacy of care; summary of guardian visits and actions, including the ward’s participation on his/her own behalf; information as to whether the current care plan is in the best interest of the individual; plans for future care; and recommendations as to continued need for guardianship or suggested changes to the guardianship.

If you are currently a guardian for an individual, or are considering becoming a guardian, please be sure you are familiar with the roles and responsibilities of such a decision especially in regard to this new statute.

Buy a Guardianship Packet- for those interested in becoming a Guardian for someone with IDD

  • Included in packet:
    • Forms needed to be filled out and turned in with examples on how to fill out forms included
    • Educational information regarding the guardianship process
    • Information for the individual that guardianship is being considered for. This includes resources explaining the guardianship process, as well as a reminder that the individual is able to obtain legal representation

Purchase a Guardianship Packet

Disclaimer: The Arc Pikes Peak Region (hereinafter “The Arc”), as one of its services, provides information about the procedure for appointment of a guardian for an incapacitated adult and information regarding a guardian’s duties and responsibilities, as set forth in Colorado Law. The Arc does not render legal services. The interpretation and use of the information provided by The Arc is the sole responsibility of the person, persons or organization requesting and receiving such information, and The Arc disclaims all liability therefore.

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