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Dealing with incapacity in Colorado, part 1: Guardianships

When does a Colorado probate court appoint a guardian? It is often in crisis after a parent suffers a sudden incapacitating illness or complications following a routine surgery that limit his or her ability to manage personal care.

The family may then realize that no advance directives or powers of attorney were in place. This is where the court will step in and appoint a guardian through proceedings in the Colorado probate court.

The court appoints a guardian only when there is clear and convincing evidence of incapacity. In this post, we will take a closer look at what incapacity is and who can serve as a guardian.

Colorado statute defines an incapacitated person as 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.”

A breathing tube that impedes communication or cancer medications that take a serious toll could meet the definition. Memory loss that reaches the point it affects decision-making abilities is another example.

What are basic requirements for a guardian?

The main requirement for a guardian relates to age. He or she must be over the age of 21. The court then reviews whether an individual is qualified to make medical and health care decisions taking into account the protected person’s well being.

Colorado probate code sets an “order or priority” and gives preference to someone who has been acting in the role of a guardian then any expressed desires. With expressed desires, the court reviews whether the individual had sufficient capacity at the time of nomination.

The court may vary from the statutory priorities, but may only do so when there is good cause.

The guardianship process can take time and create conflicts within a family. This is why advance directives are so important to have in place. They lay out your desires and limit the role of the probate court.

Source: Guardianship Alliance of Colorado, “Frequently Asked Questions

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