Legal issues around aging: Guardianship, Conservatorship and Grandparent Rights
“My mom needs a guardian/conservatorship because she can’t take care of herself. She needs help and I need to take over her care.” We hear this conversation often at Region 10. Numerous times children assume they can swoop in and take over. We also get calls from older adults who have children going through a divorce, and they are losing visitation of their grand/great grandchildren. To address the needs of both of these clients, we need to walk them through the many steps that need to be taken before any changes can occur.
What is a guardian?
A guardian is a person or persons appointed by a court to assist with the personal affairs and make decisions on behalf of a minor or an adult who is incapacitated (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.” (C.R.S. 15-14-102(5)). A person under a guardian is called a “ward”.
Some duties and responsibilities of a guardian?
- Make decisions only as necessitated by the ward’s limitations
- Encourage the ward to participate in decisions, act on his/her own behalf, and develop/regain the capacity to manage his/her own personal affairs
- Determine where the ward should live
- Arrange for and make decisions about care, medical treatment, or other services for the ward
- See that the basic daily personal needs of the ward are met, including food, clothing and shelter
- Financial management for a ward with limited assets if there is no conservator
- Submit annual reports to the court regarding the status of the guardianship and condition of the ward
- Obtain permission from the court to move the ward out of the State of Colorado
What is a conservator?
A conservator is a person, or persons, appointed by a court to manage finances and property for an adult who is incapacitated, and whose assets may be wasted or dissipated unless management is provided; or if protection is necessary for the adult to obtain or provide money for the individual’s or his/her dependent’s support. A person under a conservatorship is called a “protected person”. The appointment of a conservator is not a determination of incapacity of a protected person. (Colorado Revised Statutes 15-14-409(4)). A rule of thumb is that conservatorship is not necessary if the person only has enough income and assets to meet his/her daily needs.
Some duties and responsibilities of a conservator?
- Make decisions which the protected person would have made, if known, if not, make decisions based upon the protected person’s best interest.
- File a financial plan with the court within 90 days of appointment and file amendments as necessary.
- File a detailed inventory of the protected person’s estate within 90 days of appointment.
- File an annual report with the court.
- With court approval, and in consideration of the decision that the person would have made. (C.R.S. 15-14-411)
For an in-depth discussion of the duties and responsibilities of a guardian and conservator, visit http://www.guardianshipallianceofcolorado.org.
What rights do grandparents possess?
There is also a lot of confusion on whether or not grandparents have visitation right of their grandchildren. Grandparents’ Rights and Current Colorado Law state that there are protections in Colorado for grandparents’ rights in case of divorce.
There are currently two laws in Colorado under which grandparents may seek to establish parental rights and responsibilities or visitation with a grandchild. The first law is the Uniform Dissolution of Marriage Act (“UDMA”), and the second is the Children’s Code. Under the UDMA, grandparents may seek visitation or parental rights and responsibilities in situations where the child is not currently in the physical care of a parent, or when the grandparent has had physical care of the child for at least six months. The Children’s Code provides grandparents with the opportunity to preserve their visitation rights with the child. Often times a grandparent will request visitation under the Children’s Code after a disruption in the child’s family.
If you would like to learn more, please join us for the Guardianship, Conservatorship, and Grandparents’ Rights workshop offered by Region 10 and the Uncompahgre Volunteer Legal Aid. Presented by attorney at law “Jock” John Fleming, this class will discuss these topics in great detail. The class is free and takes place on May 19th from 12-1 pm at 300 N. Cascade Road, Suite 1 in Montrose. To learn more or register for the event, please register online or call 970.249.2436 x 208.