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Personal service requirement in guardianship proceedings

The Colorado probate courts can expedite guardianship proceedings in emergency situations. In these cases, the emergency guardian appointment cannot last more than 60 days.

A temporary (emergency) guardianship can be converted to a permanent guardianship, but service requirements must be followed carefully. A Colorado Court of Appeals case illustrates what can go wrong and how mistakes can invalidate a court appointment.

 

Personal service on the alleged incapacitated person

The case started with a petition from a county department of human services asking for an emergency appointment of a guardian. A man could no longer function independently in the community, and a long-term care facility would accept him only if he had a guardian.

Within three days, the court held a hearing. It appointed an emergency guardian, finding that the man would be “substantially harmed” if there was a delay.

In these situations, the protected person needs to be personally served with a notice of appointment within 48 hours. It is important to note that personal service is NOT just placing a form in the mail, but requires directly handing paperwork to an individual and proof of service generally in the form of a signed affidavit. No evidence existed in the court record that this ever happened.

Delays and more mistakes

What happens when the protected person still needs a guardian after the emergency 60-day period? Regular guardianship rules apply.

One important requirement in a guardianship is personal service on the respondent (the person considered to be incapacitated). At least 14 days before a scheduled hearing, the person – who could lose his or her rights to make important decisions – must receive notice.

In the appellate case, the emergency guardian served much longer than 60 days. A reschedule request meant pushing a hearing on permanent guardianship out more than six months. Then there was no proof of personal service. The man, however, did appear at the hearing.

The argument from the petitioner (the county requesting the guardianship) was that the man’s presence at the hearing functioned as a waiver of the service requirement. The appeals court disagreed.

Because there was no proof of personal service prior to the hearing, the appellate court vacated the guardianship. In effect, the petitioner had to start over again with a new guardianship proceeding. This case demonstrates how a mistake can be costly and time-consuming.

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