An Overview of Guardianship

Guardianship is a legal arrangement in which someone is appointed to the affairs of an individual who is incapable of handling his own affairs. The appointed guardian is responsible for the care and custody of the individual and usually has control over the person’s assets and makes decisions regarding their health care and other financial affairs. Establishment of the guardianship is overseen by a court commissioner or judge. The judge or court commissioner must determine that the alleged incapacitated person, or AIP, is unable to manage his own affairs and that there are no lesser restrictive alternatives that could be implemented to avoid imposition of a guardianship. An example would be a person having established power of attorney in a trusted relative or friend, whom is capable of managing his affairs without needing to establish guardianship.

To establish a guardianship, someone must act as petitioner to address the court. This person can be a concerned relative, representative of a guardianship company or a social worker. The petitioner asks the court to make a determination that the AIP requires someone to handle his affairs. The guardianship can be one in which the AIP only requires help in managing financial affairs, or one in which the AIP requires help in making medical decision or matters related to daily living activities. Once the petition is filed, a “guardian ad litem”, usually an attorney, is appointed to serve as an independent party who conducts an inquiry into the AIP’s family and living situation, daily life and competency. The AIP also undergoes an evaluation by a physician.

The court commissioner or judge reviews and weighs all of the information from the physician as well as all other pertinent information, such as testimony from family members or the AIP himself. An appointment is then made, which is considered final unless someone appeals the decision or petitions the court to change the appointment. A guardianship usually lasts as long as the AIP or ward remains incapacitated and as long as the guardian remains competent and meets statutory requirements.

A guardianship can be terminated by an order of the court that established it. A guardian must report regularly to court to ensure the guardian is properly managing the AIP’s affairs and making appropriate decisions or his guardianship becomes delinquent and can be inactivated by the court. Appointed guardians receive Letters of Guardianship that terminate on a specific date that coincides with the due date of the guardian’s next report. Failure to report to court and obtain renewed letters before they expire causes the guardian to lose court authority to act on behalf of the AIP or ward, even though they remain legally responsible.

Guardianship is not without some disadvantages. Guardians have been known to abuse their authority in a manner that serves their own interests over that of the AIP or AIP’s family. Examples include using the assets of their ward or AIP for their own purposes, providing extra services the AIP or ward does not need, or being incompetent. You should immediately consult with an attorney if you suspect a relative or friend is the victim of a guardian abusing his authority.

Colorado Criminal Defense Attorney Kevin Ellmann
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