Assuming Guardianship
What it means to become a guardian for an adult with an intellectual or developmental disability in Colorado — and how to decide whether it is the right step.
A 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 an individual with IDD, we encourage everyone to explore less-restrictive options such as Supported Decision-Making.
Our 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. An adult acting on their own behalf must have some ability to foresee and appreciate the future consequences of present-day decisions, actions, or failures to act.
Consequently, some individuals may require the more formal protection and assistance provided by a guardian who is appointed by a court and 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 their rights.
Barring evidence to the contrary, and if they so choose, parents should be viewed as qualified and concerned guardians of their adult children 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.
When a guardian is needed
The law presumes a person to be competent at age 18. Whether an adult with developmental disabilities needs a guardian poses a serious question, because the deprivation of an adult’s right to make decisions directly affecting their life is a serious matter.
The appointment of a guardian requires that a petition be filed with the court declaring the person to be “incapacitated.”
For persons with a mental incapacity so severe as to prevent significant decision making, guardianship offers both protection and enhancement of individual rights. The only consideration of the court is whether the individual has the ability to give “informed consent.”
Key Definitions
Incapacitated Person
Any person 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 extent that they lack sufficient understanding or capacity to make or communicate responsible decisions concerning their person.
Guardian
A person, agency, or corporation appointed by the Colorado Probate Court to represent the interests of, act on behalf of, make decisions for, and substitute consent for a person declared to be incapacitated.
Ward
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.
Guardian Ad Litem
A person appointed by the court to evaluate a person for guardianship proceedings.
Power of Attorney
Sometimes offered as an alternative to guardianship, it permits a person to transfer some or all authority over their life and estate to a person of their choosing.
Due Process
The legal doctrine that guarantees statutory and constitutional rights.
Court Visitor
A person appointed by a judge to evaluate the alleged incapacitated person.
The Court Visitor Process
The court must appoint a court visitor who meets, interviews, and consults with the person. The visitor explains the basis of the guardianship petition; the nature, purpose, and effect of the proceedings; and the general powers of the guardian. The visitor also determines the person’s views on the imposition of the guardianship, its scope, and the appointment of the proposed guardian.
The visitor must explain that the person has a right to an attorney — and that if they cannot afford one, the court will provide an attorney without cost. The visitor also interviews the person seeking appointment as guardian, visits both the present home and the proposed future residence of the person, and interviews any physicians or others who have counseled or treated the person in the recent past.
After making these visits, the visitor files a written report with the court describing any current incapacity or disability of the person, the fitness of the proposed guardian, and any recommendation to limit the guardian’s powers. The report includes any expression of approval or disapproval by the person concerning the guardianship, and any request for — or recommendation about — appointing an attorney to represent the person.
Authority & Responsibility of a Guardian
- Any competent adult (residing in or out of Colorado) or a suitable agency can be appointed as guardian.
- In appointing a guardian, the court considers the qualities needed to fill the role effectively — an understanding of developmental disabilities and of the individual, and the ability to relate to the ward so as to understand and represent their needs and desires.
- 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. It is designed to substitute consent — not to override or contradict a person’s wishes.
- A guardianship can be altered or modified at any time by court order.
- A guardian should be available for emergency services.
- A guardian can consent to medical treatment in accordance with the orders of the Probate Court; decisions regarding withdrawal of treatment are referred to the Probate Court.
- A guardian must provide a written report to the Probate Court each year on the status of the ward.
So You Want to Be a Guardian
Under the current statute there is no provision for appointing 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. The appointment of an emergency guardian 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.
The reports a guardian must submit have expanded to include a personal care plan and an accounting for assets within 60 days of appointment. Annual reports from the guardian are required and include:
- The ward’s current mental, physical, and social condition and living arrangement.
- Medical, educational, and vocational services provided and the adequacy of care.
- A summary of the guardian’s visits and actions, including the ward’s participation on their own behalf.
- Whether the current care plan is in the best interest of the individual.
- Plans for future care.
- Recommendations as to the continued need for guardianship or suggested changes to the guardianship.
If you are currently a guardian, or are considering becoming one, please be sure you are familiar with the roles and responsibilities of such a decision, especially in regard to this statute.
Purchase a Guardianship Packet
For those interested in becoming a guardian for someone with IDD
The Guardianship Packet includes:
- The forms that need to be completed and turned in, with examples showing how to fill them out.
- Educational information regarding the guardianship process.
- Information for the individual guardianship is being considered for — including resources explaining the process and a reminder that the individual is able to obtain legal representation.
Disclaimer
The Arc Pikes Peak Region (“The Arc”), as one of its services, provides information about the procedure for the appointment of a guardian for an incapacitated adult and about 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 therefor.