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The rights of protected persons

In Colorado, conservatorship allows a conservator/fiduciary to handle the financial matters of an incapacitated person, the protected person.

A conservatorship and guardianship (related to living arrangements, daily needs and health care) are common for a minor child or an adult with developmental disabilities. Situations exist where a protected person may only be the subject or a conservatorship or vice versa.

What happens when conflicts arise?

Friction can develop between a conservator and a protected person over the amount of money needed to cover living expenses. Is cable a necessity or a luxury to cut out of the budget? Is a certain grocery store debit card preferable to cash when there are issues of addiction? How much does a conservator micro-manage (more management often increases fees paid from the assets of the protected person)?

These issues can come up in many types of cases. For example, in trust management, a trustee may reject requests for disbursements and differences in definitions of what is a necessary expense can cause ongoing and escalating conflicts. When relatives serve in these roles, it can ruin family relationships. Arm’s length professionals – bank trust managers or professional conservators – can also have personalities/viewpoints that cause conflict.

Unlike a trustee, a protected person faces an added issue when these problems come up. In the past, judges sometimes questioned whether a person under a guardianship or conservatorship had the capacity to retain their own legal counsel. Last year, a change in Colorado law gave these individuals the right to hire a private attorney.

A judge may still review whether an individual has the necessary capacity to hire a lawyer. But the presumption shift makes it easier for an individual to obtain legal assistance.

What is needed to move forward and resolve these problems? Often it requires appointing a new person to stand in the role as conservator or trustee. An experienced attorney who understand conservatorship and trust administration rules can help.

 

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