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Law Offices of Ronald W. Rutz
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August 9, 2005: Guardianships

Q: Please write a column on guardianship/conservatorships for the readers of Senior Voice.

A: I have written several times about this topic, but this is such an important subject, the following is an updated column.

Even though the law has been changed to make a court-appointed guardianship/conservatorship the "last resort," in many Colorado jurisdictions, the cards still seem to be stacked against the individual who finds himself or herself caught up in the process.

Older individuals with decreased capacities and/or "peculiar" behavioral traits, especially if alcohol, dementia, Alzheimer’s, or other physical or psychological problems are involved, and people who do not actively resist when made part of a proceeding are most at risk in many counties. Especially if Social Services becomes involved. Court-appointed visitors, medical evaluators, and even a number of probate judges appear not to apply the spirit or intent of the new law but feel the need to protect the person from himself or herself.

Once in the system, an individual loses control over his or her life, even if it is deemed that on paper a "limited guardianship/conservatorship" was to be established. Thus, the court-appointed fiduciary could direct where the protected person lives, who is allowed to visit, make medical decisions, and of course control assets and income.

Depending upon the judge, abuses involving the fiduciary position may be tolerated even when the protected person objects. I have been called in where a probate judge did not insist on timely reports or push to hold the conservator accountable for funds spent by the conservator for the conservator’s benefit.

Even if the fiduciary does not take a fee, the cost of the proceedings can be an eye-opener, including expenditures for things like bonds, accounting, and asset management costs. And once started, it is extremely difficult to end, although I have been involved in one successful termination. But in that situation, everyone agreed that the person no longer needed protection. However, I got the feeling that the judge could have just as easily gone the other way and continued protected estate.

Thus, based upon my experience in several different Colorado counties, guardianship/conservatorships should be avoided and for defensive purposes the use of a Durable Power of Attorney should be considered.

A Durable Power of Attorney can be put in place so an agent (someone you pick) has the power to act on your behalf. Yes, a Power of Attorney can be abused but remember getting pulled into Court can be worse. Yes, complete control over the agent by the principal (the affected party) may be impossible. But the possibility of agent abuse of the power can be minimized by picking the right people as agents and by maintaining possession of the Power and only giving the original to the agent when something needs to be done. Thereafter the principal should take back possession of the document.

If an agent refuses to give back the Power, it can be revoked, even if it means going to Court to do so. It is much easier to get an injunction against an agent as opposed to trying to stop the guardianship/conservatorship proceedings once started.

The existence of a Durable Power of Attorney could also be significant to the probate judge, negating the need for a guardianship/conservatorship since arrangements have already been made by the principal. So, confer with the family or trusted friends and decide if the Durable Power of Appointment should be pursued and be mindful of the judicial quicksand waiting if the guardianship/conservatorship process is begun.

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