Quick Reference Regarding Common Legal Terms Affecting Incapacitated Adults

I.    GUARDIANSHIP: 

a.     Appointment of person by the Court to manage the care, custody and healthcare of another person.  Requires a finding of incapacity. 

b.     The subject of the guardianship is the “ward.”

1.       Who is Involved?

a.      Court:  Must approve and monitor all guardianships.

b.      Proposed Guardian:   Family member or independent person.  The Ward pays the fees if able.

c.      Medical/Mental Health Providers:  Must certify incapacity/incompetency.

d.      Court Visitor:  Appointed by Court to independently assess situation, $100 flat fee in Denver.

e.      Court Appointed Attorney:  Will be appointed if ward opposes petition, or if Court deems necessary.  Ward pays fees if able, or the state will pay.

2.     Powers & Duties of the Guardian:

a.      Guardianship is tailored to the need to the individual.

b.      Guardian must report to the Court.

c.      Guardian has a restricted ability to initiate commitment to mental health facility.

d.      Guardian usually does not manage financial affairs unless ward has limited assets.

3.     What is Incapacity?

a.      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.”

b.      Key:  This is a functional analysis, i.e., the key for the Court is whether a person can make decisions that are in his or her best interest regarding personal affairs and care.  A particular diagnosis (i.e., dementia) is irrelevant if the person can still make appropriate decisions.

II.           CONSERVATORSHIP: 

a.     Appointment of a fiduciary by the court to manage the financial affairs of a person.  Does Not require a finding of incapacity or incompetency.

b.     The subject of the conservatorship is the “protected person.”

1.     Who is involved?

a.      Court:  Must approve and monitor all guardianships.

b.      Proposed Conservator:   Family member or independent person.  The protected person pays the fees if able.

c.      Court Visitor:  Appointed by Court to independently assess situation, $100 flat fee in Denver.

d.      Court Appointed Attorney:  Will be appointed if protected person opposes petition, or if Court deems necessary.  Protected person pays fees if able, or the state will pay.

2.     Powers & Duties of the Guardian:

a.      Guardianship is tailored to the need to the individual.

b.      Guardian must report to the Court.

c.      Guardian has a restricted ability to initiate commitment to mental health facility.

d.      Guardian usually does not manage financial affairs unless ward has limited assets.

III.      OTHER METHODS OF ADDRESSING INCAPACITY:

1.     Durable Powers of Attorney:  

a.      Document drafted while person still competent, in which they detail who will have the power to make financial, health and care decisions for them if they become incapacitated.

b.      The terms and extent of the powers granted are extremely flexible.

c.      Usually no court involvement or oversight.

2.     Trusts:

a.      Document drafted while a person is still competent, in which they detail who will have power over financial affairs. 

b.      The trustee also can be given power of attorney.

c.      The terms and extent of the trust are extremely flexible

d.      Usually no court involvement or oversight.

3.     Advanced Medical Directives (Living Wills):

a.      Document drafted while person still competent, in which they detail what life saving measures they do, or do not, want to be implemented if terminally ill or in vegetative state in a hospital.

b.      Usually coordinated with the health care power of attorney.

c.      Usually no Court oversight or involvement