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What Elders Need to Know;
Changes in the Colorado Guardianship and Conservatorship Laws
Daniel P. Kapsak, Esq. The Colorado Legislature has revised the Colorado Guardianship and Conservatorship laws, effective in 2001. These changes will have a profound effect on all who are seeking protection for loved ones through either a guardianship or conservatorship . . . or both. Undoubtedly the most important change in the laws is the definition of an incapacitated person. The new law defines an incapacitated person as an individual 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. The old definition emphasized illness, disability, addiction, or deficiency; the new definition focuses on the cognitive and functional ability of the individual and finds incapacity only in the event the individual cannot satisfy essential requirements for health and care, after evaluating the person's resources, person's capabilities, limitations and demonstrated needs in his or her own home and then re-evaluating in light of reasonably available technological assistance. The protected individual is now afforded greater safeguards: He or she is entitled to an attorney simply by asking. Attendance at hearings is now mandated for the protected person and may be waived only upon a showing of good cause. The protected person has the right to examine all witnesses involved in the conservatorship or guardianship process, including the court appointed "visitor." The revised laws also address the responsibilities of the persons acting as guardians or conservators: "Dual capacity" is prohibited; that is, a conservator may not also act as guardian, direct service provider, or the like. The priority for appointment as guardian or conservator no longer presumes the spouse as the "shoe-in" fiduciary; currently existing relationships such as agencies and limited conservatorships or guardianships are considered most appropriate. The guardian is now required to be personally acquainted with the protected person in order to know his or her capabilities, limitations, needs, opportunities, and health. Guardians and conservators are to be held to a higher standard of care. Thus, a guardianship or conservatorship is considered a harbor of law resort; protection will be afforded only in circumstances where there are no other legal options available such as agencies under general or medical powers, and where available technological assistance cannot make up for the person's limited cognitive or functional abilities. About Daniel P. Kapsak Mr. Kapsak's practice is devoted to all aspects of estate and business planning, with a special emphasis in elder law issues. He is a member of the Boulder County Bar Association, the Colorado and Nebraska State Bars, and the American Bar Association. Mr. Kapsak is a member of the Boulder County Estate Planning Council as well as the Tax, Probate and Trust Sections of the Colorado and Boulder Bar Associations. He serves as co-chairperson for the Ethics Committee for Longmont United Hospital, and is a member of the National Academy of Elder Law Attorneys (NAELA). Mr. Kapsak is principal of The Kapsak Law Firm, LLC, Longmont, Colorado. |
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