The Arc of Pueblo, CO -- Advocacy Information

The Arc of Pueblo provides assistance to families who need to petition for guardianship for their family member who has been deemed incapacitated. We assist them in preparing court documents and/or serve as court appointed Visitor.

Philosophy: (back to top)

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. If parents or other family members are unable to accept guardianship appointment, or are determined inappropriate by the Probate Court, The Arc of Pueblo can accept appointment and provide services through its court appointed agents.

Information Regarding Guardianship: (back to top)

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

Need for Guardian: 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 decision directly affecting his/her life is a serious matter.

The appointment of a guardian requires that a petition be filed with the court which declares the person to be “incapacitated.”

For persons with a mental incapacity so severe as to prevent them from significant decisionmaking, 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: (back to top)

Incapacitated Persons: 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.

Guardian: 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.

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 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.

Due Process: The legal doctrine that guarantees statutory and constitutional rights.

Authority and Responsibility of a Guardian: (back to top)

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. Guardianships 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 twice a year on the status of the ward

Unless the allegedly incapacitated person has an attorney, 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 recommendation as to whether or not an attorney should be appointed to represent he incapacitated person.

Colorado's New Law Regarding Guardianship for Adults: (back to top)

A guardian shall exercise authority only as necessitated by the ward's limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal values of the ward to the extent known to the guardian, at all times, shall act in the ward's best interest and exercise reasonable care, diligence, and prudence. (Colorado Revised Statute 15-14-314(1), effective 01/01/01

On June 1,2000 House Bill 00-1375 was signed into law, to become effective January 1, 2001. The bill becomes the Colorado Uniform Guardianship and Protective Proceedings Act. It was designed by a group of approximately 30 individuals from the bar and bench, court administrators, guardianship advocates and private non-profit care management agencies. The new law is very extensive, a summary of some of the major changes to the law will follow. A copy of complete statute may be downloaded from the Colorado General Assembly Home Page at: www.state.co.us/gov_dir/stateleg.html. The document is 80 pages in length. It may be best to download to a disk first and then print from the disk.

One of the most significant changes to occur is the recommendation of limited guardianships over full guardianships. This is, at least in part, due to a new definition of incapacitated person. The new law redefines incapacitated person as: "...an individual, other than a minor, who is unable to effectively receive and evaluate information or make or communicate decisions to such an extent that the individual lacks ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance." This new definition is significantly different from the former definition and makes it clear that a disability is not in itself reason for a guardian and does not in itself meet the definition.

As found in the newly outlined duties of a guardian, there is a new emphasis that a guardian should always consult with the individual in the decision making process. Except as limited by the court, a guardian shall exercise authority only as necessary based on the nature and duration of the incapacity and technology available to assist the individual. The visitor also has the obligation to inform the respondent of his or her rights, as specified in the new statute.

Notice of petition for guardianship has changed from old provisions. A copy of the petition must be served personally at least ten days prior to the date of the hearing. There is an expanded notification requirements for others who may need to be served. Others receiving notice may include the respondents physician, care custody, legal representatives and any other person who could be nominated as a guardian. The notice must include that the respondent must be physically present for the hearing, unless excused by the court; include the individual's rights; and describe the nature and purpose of the proceedings. Other notice requirements after appointment of a guardian have changed as well. People granted guardianship need to become familiar with the new requirements.

There is a new priority order for those potentially appointed as guardian. The court has the authority to depart from the statutory priority list and appoint someone with lower or no priority. New provisions prohibit long-term care providers from serving as guardian, unless related by blood or marriage and against professionals serving in dual capacities. Professionals may not serve dually as: guardian/conservator; guardian/direct service provider; or conservator/direct service provider. additionally, professional care managers cannot also serve as direct service providers.

If a guardian is appointed notice is required to be given to the ward and to all others listed in the petition within 30 days after the appointment. This is a new requirement to inform those receiving initial notice as to the outcome of the hearing

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.

For more information on the guardianship process or other alternatives to guardianship, please contact: