The following information is intended to give an overview of alternatives to guardianship. The information is provided for educational purposes only and is not a substitute for legal advice. For advice on making legal decisions, please seek the assistance of an attorney.
Guardianship
Guardianship is determined through a court process. Guardians are appointed and overseen be a court. Guardians are responsible for protecting the person and a Conservator is responsible for protecting money and property of the protected person. In Colorado, the law separates a guardianship and a conservatorship.
For a court to appoint a guardian, it must first determine that the individual for whom a guardianship is sought, is incapacitated and unable to make decisions necessary to protect the individual from harm. Once an individual is appointed a guardian, the individual is referred to as a “ward.”
A court gives a guardian the authority to make decisions for the ward. This means that the ward may no longer be able to make decisions to:
• Determine residence
• Consent to medical treatment
• Make end-of-life decisions
• Contract or file lawsuits
A guardian will take into account the wishes and desires of the incapacitated person when making all decisions. Pursuant to C.R.S. 15-94-314: Except as otherwise limited by the court, a guardian shall make decisions regarding the ward’s support, care, education, health, and welfare. 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 affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian, at all times, shall act in the ward’s best interest and exercise reasonable care, diligence, and prudence.
A guardian is a “fiduciary,” or a person having a duty to act primarily for the benefit of another person in matters related to that which gives rise to the duty.
A guardianship should be the last resort, therefore a Limited Guardianship or alternatives to guardianship should always be considered before seeking a full, or unlimited, guardianship.
Limited Guardianship
If an incapacitated person is able to make some of their own decisions, a court may limit the guardian’s authority to make decisions on behalf of the incapacitated person.
The guiding principle in all guardianship is that of least restrictive measures to assure the incapacitated person has as much autonomy as possible.
Modification or Termination of a Guardianship
Guardianship can be modified or terminated by the court. The ward may ask the court to modify or terminate a guardianship at any time. Guardians file annual reports to the court indicating whether the guardianship should be modified or terminated. The guardian should regularly assess the ward to see if the ward has regained capacity to make their own decisions. Guardians should ask the court to modify or terminate a guardianship if the ward has regained capacity. The court usually requires medical evidence that the ward has regained capacity.
Alternatives to Guardianship
• Representative Payee
• Case/care management with Community advocacy systems or Community agencies/services
• Trusts
• Durable powers of attorney for property
• Durable powers of attorney for health care
• Living wills
• Joint checking accounts
• Supported decision-making networks
Representative Payee or Fiduciary
A Representative Payee is an individual or organization appointed by the Social Security Administration (or a Fiduciary appointed by the VA) to receive government benefits on behalf of an individual who cannot manage his/her money.
The payee’s/fiduciary’s responsibility is to use the benefits to pay for the current and foreseeable needs of the beneficiary and properly save any benefits not currently needed.
Case/Care Management with Community Advocacy Systems or Community Agencies/Services
There are state and local agencies that may offer case management services for the incapacitated person. This may allow the incapacitated person to live independently with support. There are national and local advocacy systems and agencies.
Some examples are:
• Rocky Mountain Human Services
• Arc of Colorado
• Area Agency on Aging
• Veterans Administration
• Aging and Disability Resource Center
Trusts
Special needs trusts provide oversight and management of money held in the trust. A special needs trust ensures that the individual’s resources are spent for the benefit of the individual.
Durable Powers of Attorney
A Durable Power of Attorney is a legal document executed by an individual with capacity. Generally, the document gives an individual called the “agent” or “attorney in fact,” the authority to act on behalf of the individual appointing them.
Powers of attorney may give authority to the agent or attorney in fact to act upon the individual’s finances or medical decisions.
A Power of Attorney is a private agreement and not subject to automatic court oversight.
If you regain the ability to make your own medical decisions, your “agent” is no longer allowed to make medical decisions on your behalf.
Living Wills
Living Wills are a legal document. It allows a person to state future health care decisions when that person becomes incapacitated to make those decisions.
The living will describes the type of medical treatment the person would want or not want to receive at the end of life or if the person is terminally ill. Before your health care team uses your living will to guide medical decisions, two physicians must confirm that you are unable to make your own medical decisions and you are in a medical condition that is specified by Colorado law as terminal illness or permanent unconsciousness.
Supported-Decision Making Networks
Supported decision-making refers to ways of helping individuals of any age or ability understand information and make decisions that affect important areas of their life, such as legal, financial, medical, housing, education, and relationships. The individual is the decision maker.
Resources
Overview of Guardianship and Alternatives
to Guardianship
CHAPTER SUMMARY • July 2018
David Godfrey, ABA Commission on Law and Aging
Self-Determination and Supported Decision-Making
Supporting Individuals with Disabilities to Take Charge of Their Lives
NGA’s mission is to advance the nationally recognized standard of excellence in guardianship.