Let's assume: You are the parent of a son who has a disability, whether from birth or acquired as a result of a brain injury or serious illness. He is now age 18, however, he functions at a mental age of approximately 7 years. You have cared for him both physically and emotionally for the 18 years of his life. As his parent you have always made the decisions necessary for him to receive services and treatment. Now you are being told, that just because he turned age 18, you no longer have authority to make any decisions for him. He is now emancipated and he has authority to manage his own life. But you know he is not capable of managing his life. You've always been there for him. You've always taken responsibility for whatever happens for and with him, both good and bad. Why would that change just because his chronological age changed? His mental age hasn't changed -- and it probably won't, at least not very much!

Your authority changed because the law provides that when all persons become 18 years of age they are emancipated, i.e., released from paternal care and responsibility and have full legal rights or capacity.The law does NOT say that if a person has a disability or illness that causes him to be unable to manage his own life, then he is not emancipated. Rather, in that case, it is necessary for a court to make a legal determination that (1) the person is incapacitated, and (2) someone should serve as his guardian.

Guardianship gives a person or agency responsibility for making decisions on behalf of someone who is unable to make or communicate responsible decisions about his/her own life. The person for whom a guardian is appointed is called a "ward." Without being the guardian, you cannot legally make decisions for your son or daughter. Often service providers, including doctors and residential care staff, consult with parents who are not guardians and may take their consent in certain situations. However, they are not obligated to do so and may refuse because of concern for their own liability.

Guardianship is a serious responsibility and one that should be approached with the same seriousness and attention which you apply to your own life. As a guardian you have overall responsibility for your ward's welfare.While guardianship provides important protection, it is also very restrictive. An unlimited guardianship can remove all of an individual's legal rights to manage his/her own life.

Before considering guardianship for an adult with a disability, there must be an assessment of the person's functional capacity. This may include a recent psychological or psychiatric evaluation and a medical examination which, together, clearly describe the history, nature and degree of the disability.

Before appointing a guardian, the court must find by “clear and convincing evidence” that the person is incapacitated. Colorado law defines an incapacitated person as “an individual, other than a minor, who is unable to effectively receive and evaluate information 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.” (C.R.S. 15-14-102(5))

You must first consider if limited guardianship would be appropriate. Under limited guardianship, you are only responsible for specific matters with which the ward may need assistance, for example, money management and/or medical decisions. The ward remains responsible for all other decisions. Colorado law presumes that only limited guardianship is required. If unlimited guardianship is requested, you must prove to the court that it is necessary.

The procedure for obtaining a guardianship is not difficult. It can be done with the assistance of an attorney or, if there is no contest to the guardianship, it is relatively easy to do on your own. The Guardianship Alliance provides a pro se packet which includes the necessary forms and instructions. We also make referrals to experienced attorneys.

As a guardian, your duties and responsibilities may be similar to those you have exercised as a parent. However, there are a few exceptions. Namely, you are NOT responsible to provide for your ward out of your own funds and you are NOT liable to third persons for your ward's actions and behaviors. Also, if you use reasonable care in choosing a service provider for your ward, you are not liable for injury to the ward resulting from negligent or wrongful conduct of the provider.

In addition, as a guardian you MAY NOT admit your ward for involuntary treatment for mental illness, alcohol and drug abuse or for institutionalization for developmental disabilities. Neither can you give consent for sterilization.

Even though, as a guardian, you will have responsibility for protecting and caring for your ward, it is important to carefully distinguish between providing adequate protection and imposing excessive restrictions. The law requires guardians to make every effort to include their ward in all decisionmaking. The kind of information and how it is presented will have a bearing upon the ward's ability to participate in a decision. Information should be tailored to the understanding of the individual; the language must be simple; repetition may be necessary, and visual aids may be helpful. Following the attempt to inform, special efforts should be made to determine whether the person has in fact understood the information, perhaps through quizzing or other feedback.

In general, guardians have responsibility for personal and medical matters. If a ward has more assets than are required to provide for his/her daily needs, or if he/she owns real estate, a conservatorship may be necessary. Conservators are only responsible for money and property. Most adults with developmental disabilities do not need a conservator. Guardians can manage limited amounts of money such as income from SSI, Social Security, and low wages. A guardian may also be the Representative Payee for a ward.

A conservatorship is a court appointment for an adult who is incapacitated, missing, detained or unable to return to the United States. The appointment of a conservator gives a person or an organization the responsibility to prevent waste or dissipation of the protected person’s assets; to obtain or provide for the support, care, education or welfare of the protected person or someone entitled to support by the protected person. Conservatorship for adults in Colorado is authorized by Colorado Revised Statues, Title 15, Article 14, Part 4. This section of the statutes was repealed and re-enacted effective January 1, 2001 and is known as the Colorado Uniform Guardianship and Protective Proceedings Act.

A conservatorship is a protective proceeding. The person for whom a conservator is appointed is called a “protected person.” The definition of a protected person is defined as “any individual, for reasons other than age, who is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance or because the individual is missing, detained or unable to return to the United States.”

The appointment of a conservator or the entry of another protective order is not a determination of incapacity of the protected person. (C.R.S.§15-14-409(4))

A conservator may not serve in dual roles. This means the conservator cannot be the same person or entity as the guardian or the direct service provider and may not employ the same person as both a case manager and direct services provider. Owners, operators or employees of long-term care providers are expressly prohibited from serving as conservator unless related to the respondent by blood, marriage or adoption. (C.R.S.§15-14-413) The court, in appointing a conservator, considers persons otherwise qualified in the order of priority:

1. Conservator, guardian or like fiduciary appointed by the court of another jurisdiction;
2. A person nominated by the respondent in a durable power of attorney;
3. An agent appointed by the respondent under a durable power of attorney;
4. Spouse
5. Adult child
6. Parent
7. An adult with whom the respondent has resided for more than six months.

Bond is mandatory unless the court makes specific findings as to why a bond is not required in the particular case. (C.R.S.§15-14-415)

Appointment of a conservator vests title in the conservator. (C.R.S. §15-14-421) However, this does not sever joint tenancies. A conservator has the powers to continue, modify or revoke a financial power of attorney, unless limited in the order. All agents under financial powers of attorney must cease any further action under the power of attorney without the conservator’s specific authorization. The conservator may also require the agent to report and account for actions taken under the power of attorney. If the protected person owns real estate, the Letters of Conservatorship should be recorded in the county where the property is situated to give notice of title between the conservator and the protected person.

The interest of the protected person in property vested in a conservator is not transferable or assignable by the protected person. An attempted transfer of the property by the protected person is ineffective but may give rise to a claim against the protected person. Property vested in the conservator and the interest of the protected person are not subject to levy, garnishment or other claims unless incurred by the conservator or presented as a claim in essentially the same manner as for a decedent’s estate. However, if the protected person transfers personal property for substantially equivalent value to an individual unaware of the conservatorship who acted in good faith, the individual is protected as if the protected person or transferee had valid title.(C.R.S.§15-14-422)

If there’s a substantial conflict of interest between the conservator’s fiduciary and personal interest in a given transaction, that transaction is voidable unless expressly authorized by the court. This includes any sale, encumbrance or other transaction involving the conservatorship estate entered into by the conservator, the spouse, descendant, agent or lawyer of a conservator, or a corporation or other enterprise in which the conservator has a substantial beneficial interest. (C.R.S. §15-14-423)

A conservator may, after notice and only with express court approval, gift, convey, release or disclaim, create, revoke or amend trusts; exercise rights and change beneficiaries under retirement plans, insurance policies and annuities; and exercise rights to elective shares. Of particular note is the conservator’s authority to make, amend or revoke wills. (C.R.S.§15-14-411)

A conservatorship terminates on the death of the protected person, or upon an order determining that the conservatorship is no longer necessary.

Duties of a Conservator

As a conservator you are expected to understand and carry out the responsibilities outlined in the specific conservatorship orders of your appointment. Familiarize yourself with those things requiring court approval before you can act. If ever in doubt, seek court approval or court instruction. There are general duties and responsibilities which every conservator is expected to fulfill.

Court orders appointing conservators are required to encourage maximum self-reliance and independence of the protected person. Any decisions should first be those which the protected person would have made, if such can be ascertained, and if not, then based upon the protected person’s best interest. Additional factors which the court is required to consider include:

1. The financial needs of the protected person and dependents, and the interest of creditors;
2. Possible reduction of income, estate, inheritance, or other tax liabilities;
3. Eligibility for governmental assistance;
4. The protected person’s previous pattern of giving or level of support;
5. The existing estate plan;
6. The protected person’s life expectancy and the probability that the conservatorship will terminate before the protected person’s death; and
7. Any other factors the court considers relevant, including the best interest of the protected person.

Notice of appointment. A notice is required to be given within 30 days of the order to the protected person, other interested persons listed in the petition and any others required by the court . (C.R.S.§15-14-409(3)) “Interested persons” include:

1. Protected person;
2. Spouse; and if no spouse, an adult with whom protected person has resided for at least 6 out of the 12 months preceding the filing of the petition;
3. Adult children and parents; or if the protected person has neither spouse, adult child, nor parent, at least one of the adults nearest in kinship to the protected person who can be found with reasonable efforts;
4. Each person responsible for care or custody of the protected person;
5. Treating physician; and
   
6. Each legal representative of the protected person, i.e., Guardian, Trustee, Agent under Power of Attorney, etc.)

Inventory: Conservators are required to prepare and file with the appointing court within 90 days of appointment, unless an earlier time is set by the court, a detailed inventory of the estate subject to the conservatorship. ( C.R.S. §15-14-419)

Financial Plan: Conservators are required to file a financial plan within 90 days of appointment. The plan must compare projected income and expenses and set forth a plan to address the needs of the protected person and management of the estate. (C.R.S.§15-14-418)

Conservator’s reports are filed annually and, in addition to the customary accounting of receipts and disbursements, must reflect services provided to the protected person; state recommended changes in the financial plan and recommendations as to the continued need for and changes in scope of the conservatorship. It is a comprehensive report and requires narrative text. (C.R.S. §15-14-420)

Powers of a Conservator

A conservator has broad powers. (C.R.S.§15-14-425) Unless limited by the court in its order of appointment and shown on Letters, a conservator, acting reasonably and without further court authorization, may:

• Hold and acquire or dispose of assets;
• Continue the operation of a business;
• Invest assets;
• Repair or demolish buildings;
• Subdivide or develop land;
• Enter into or lease property;
• Hold, vote, acquire and sell securities;
• Insure assets against loss, including insuring the conservator against liability with respect to a third person;
• Borrow money;
• Pay or contest claims in part or in whole;
• Pay taxes, assessments, compensation of the conservator and any guardian and other expenses incurred in the collection, care, administration and protection of the estate.
• Pay funds to the protected person or a person dependent on the protected person in any manner deemed appropriate by the conservator
• Any powers enumerated in the “Colorado Fiduciaries’ Powers Act”, Part 8 of Article 1 of Title 15.
• The court may confer additional powers on the conservator.

Authority to petition for dissolution of marriage or legal separation. (C.R.S.§15-14-425.5) The conservator may petition the court for authority to commence or maintain an action for dissolution of marriage or legal separation on behalf of the protected person.

Delegation. (C.R.S.§15-14-426) A conservator may not delegate to an agent or another conservator the entire administration of the conservatorship estate, but may otherwise delegate the performance of functions that a prudent trustee of comparable skills may delegate under similar circumstances. The rules are set out in this statute.

Principles of distribution by conservator. (C.R.S.§15-14-427) Unless otherwise specified in the order of appointment, or contrary to the financial plan, the conservator may distribute principal or income for the support, care education, health and welfare of the protected person and those individuals dependent on the protected person, including child support or spousal maintenance. The rules are set out in this statute.

Obviously, conservators have great powers, with greater responsibilities and court accountability. You step into the protected person’s shoes, manage their finances and spend their money for their benefit and those who depend on them, balancing needs and resources, all the while under the magnifying glass of court scrutiny.

Guardianship is a court appointment which gives a person or an organization responsibility and authority for making decisions on behalf of an adult who is unable to manage his/her own affairs and make his/her own decisions. Guardianship for adults in Colorado is authorized by Colorado Revised Statutes, Title 15, Article 14, Part 3. The person for whom a guardian is appointed is called a “ward.” Guardianship is a serious responsibility and one that should be approached with the same seriousness and attention which you apply to your own life. Besides being a “legal representative” for your ward, you will also be an advocate and watchdog. You may also be a surrogate family member, teacher and a friend. While guardianship provides important protection and assistance, it is also very restrictive. It can remove all of a person’s legal rights to manage his/her own life and must be imposed only as a last resort.

If you are considering becoming a guardian for someone you must first consider if limited guardianship would be sufficient. Colorado law presumes that only limited guardianship is necessary and you must prove to the court otherwise if an unlimited guardianship is requested. Limited guardianship may include authority to make only medical decisions, only residential decisions, or only financial decisions. Or it may include a combination of one or two areas. In all other matters, the guardian has no authority. An unlimited guardianship can be reduced to a limited guardianship, or the reverse can be done, through a petition to the court which made the initial guardianship appointment.

Duties of a Guardian

As a guardian you are expected to understand and carry out the responsibilities outlined in the specific guardianship orders of your appointment. When in doubt about your authority to decide about a specific matter, you may always seek prior approval from the court. While individual guardianship orders may contain specific instructions, there are general duties and responsibilities which every guardian is expected to fulfill.

Colorado law gives guardians authority to make decisions regarding the ward’s support, care, education, health, and welfare.It further states:

“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.” (C.R.S. 15-14-314(1))

In addition, a guardian shall:

• Become or remain personally acquainted with the ward and maintain sufficient contact to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health. (C.R.S. 15-14-314(2)(a))
• Take reasonable care of the ward’s personal effects and bring protective proceedings if necessary to protect the property of the ward. (C.R.S. 15-14-314(2)(b))
• Spend the ward’s money that is in the guardian’s control, for the ward’s current needs for support, care, education, health, and welfare. (C.R.S. 15-14-314(2)(c))
• Save any of the ward’s excess money for the ward’s future needs. If a conservator is appointed for the ward, the guardian must pay the excess money to the conservator, at least quarterly, to be saved for the ward’s future needs. (C.R.S. 15-14-314(2)(d))

  If your ward has substantial assets (more than the amount required for his/her daily living needs), it is necessary that a conservator be appointed. A conservator is a person or organization appointed by the court to manage the financial affairs of another. The process for appointment of a conservator is similar to that for a guardian. If your ward is also your relative, it may be possible for you to serve as both the guardian and conservator.

Immediately notify the court if the ward’s condition has changed to the degree that guardianship may no longer be necessary.

• Inform the court of any change in the ward’s residence.
• Immediately notify the court of the ward’s death.

Powers of a Guardian

Unless limited by the court order, guardians have the following powers:

• Consent to medical or other care, treatment, or service for the ward. (C.R.S. 15-14-315(1)(d))

  Advance Directives are arrangements and desires which your ward may have expressed in writing while competent. The Living Will is an example of such an advance directive regarding withholding or withdrawing medical life support systems and/or nourishment. You are obligated to respect your ward’s wishes and directions contained in the Living Will.

  Another Advance Directive is a Medical Durable Power of Attorney with which your ward would have designated an agent who is to be responsible for making such decisions on his/her behalf. The agent specified to make decisions on your ward’s behalf in the Medical Durable Power of Attorney, has precedence for making health-care decisions over a guardian unless the Medical Durable Power of Attorney is revoked by the court. A guardian may not revoke the ward’s Medical Durable Power of Attorney. (C.R.S. 15-14-316(3))

• Apply for and receive money payable to the ward, guardian or custodian for the support of the ward from any government or private source. (C.R.S. 15-14-315(1)(a))
• If not in conflict with other court orders, the guardian may take custody of the ward and decide where the ward is to live. Guardians must obtain permission from the court to move the ward outside of the State of Colorado. (C.R.S. 15-14-315(1)(b))
• If there is no conservator, the guardian may take necessary actions to force an obligated party to support the ward or to pay money for the benefit of the ward. (C.R.S. 15-14-315(1)(c))
• Depending upon circumstances, a guardian may allow a ward to make certain decisions affecting the ward’s well-being. (C.R.S. 15-14-315(1)(e))
• With specific authority or direction from the court, a guardian may consent to the adoption or marriage of the ward. (C.R.S. 15-14-315(2))
• A guardian may petition the court for authority to apply for a divorce or legal separation on behalf of the ward if it is in the best interest of the ward based on evidence of abandonment, abuse, exploitation, or other compelling circumstances, and the ward either is incapable of consenting or has consented . (C.R.S. 15-14-315.5)

Rights, Immunities, and Limitations

With approval by the court, guardians are entitled to reasonable compensation for services as a guardian and to reimbursement for room and board provided by the guardian or one affiliated with the guardian. If there is a conservator, other than the guardian or one affiliated with the guardian, reasonable compensation and reimbursement to the guardian may be paid by the conservator without order of the court.

Guardians are not required to provide for their ward, or pay for their ward’s expenses, out of the guardian’s own funds. However, you must very carefully read all documents before signing. If you sign something personally accepting financial liability, you may be held personally liable. Neither are guardians liable to third parties for acts of the ward solely by reason of the guardianship. Further, a guardian who exercises reasonable care in selecting parties to provide medical or other care, treatment, or service for the ward, is not liable for injury to the ward resulting from the negligent or wrongful conduct of the providers.

Guardians may not consent to involuntary commitment, or care and treatment of a ward for mental illness, developmental disabilities, or for alcoholism or substance abuse. In all of these instances, a guardian must proceed under the appropriate statute.

Reports to the Court

Within 60 days of appointment, or as otherwise directed by the court, guardians must submit a written report to the court including:

• the condition of the ward,
• the guardian’s personal care plan for the ward, and
• account for money and other assets in the guardian’s possession or control.

Thereafter, guardians are required to submit annual reports which cover:

• the current mental, physical, and social condition of the ward;
• the ward’s living arrangements;
• medical, educational and vocational services provided and the adequacy of the ward’s care;
• a summary of the guardian’s visits with the ward and actions on behalf of the ward, including the ward’s participation in decision-making;
• whether the current care plan is in the ward’s best interest;
• plans for future care; and
• recommendation as to continued need for guardianship and changes.

In addition, the court may appoint a visitor to review a report, interview the ward or guardian, and make any other investigation the court directs.

General Responsibilities

As a guardian you must know and care about all aspects of the well-being of your ward. If he or she does not live with you, you must visit and spend time with him/her as often as possible. It is your responsibility to make arrangements for, keep informed about, and maintain documentation of your ward’s current situation regarding finances, living arrangements and care givers, health and medical care, education and training, personal needs, preferences and desires, employment, recreation and leisure time.

It is very important to get acquainted with the people who are significant in your ward’s life, for example, family, doctors, nurses, recreation directors, case workers, employers, therapists, teachers, friends, and neighbors.

You are expected to plan for your ward’s future. Anticipate and be prepared for emergencies. Be aware of options in living arrangements or daily living activities in case changes might be necessary. Make sure that insurance or appropriate health care benefits are in place. Assure that funeral and burial or cremation arrangements are in place.

It is important for you to be familiar with laws, rules and regulations that may impact the life of your ward. For example, laws and regulations regarding nursing homes or other residential facilities; laws against discrimination and safety requirements if your ward is employable; education laws if he/she is under age 21; any government benefits and entitlements that he/she might be eligible to receive. You will also need to know how to advocate for your ward in these matters. There are community resources available to provide help, information and assistance.

Making Decisions on Behalf of Someone Else

Even though, as a guardian you will have responsibility for protecting and caring for your ward, it is important to carefully distinguish between providing adequate protection and imposing excessive restrictions. As has already been stated, Colorado law requires guardians to include their wards in making decisions. A ward’s ability to participate will depend to a large extent upon the magnitude of the decision. For example, what to wear to a particular event is a much easier decision than whether or not to have surgery. The kind of information and how it is presented will also have a bearing upon the ward’s ability to participate in a decision. Information should be tailored to the understanding of the individual; the language must be simple, repetition may be necessary, and visual aids may be helpful. Following the attempt to inform, special efforts should be made to determine whether the person has in fact understood the information, perhaps through quizzing or other feedback. You may also enlist the help of others to explain a matter to your ward, possibly in a different setting and at a different time of day.

As a guardian you must weigh all decisions critically and objectively. The following guidelines may be helpful. First, allow your ward to make the decision alone with support and assistance only as needed. If that is not possible, include your ward in a decision-making process whereby all relevant information is discussed and your ward is an active participant. Finally, if a decision must be made by you alone, you must be sensitive to the expressed preferences of your ward, if known, and to the greatest extent possible, make decisions based upon the same set of values he/she would use if making his/her own decisions. In the case of a ward who has never been able to make his/her own preferences known, you have no choice but to make the decision that you believe is best for your ward.

When making decisions for your ward, you must apply informed consent principles in the same manner applied when making decisions about your own life. For example, before giving consent you should have answers to the following questions:

• What are the alternatives?
• What are the risks?
• What are the benefits?
• What are the consequences?
• What discomforts might occur?
• Can I change my mind later?

Termination or Modification of a Guardianship

A guardianship terminates upon death of the ward, or if the ward no longer meets the standard for establishing the guardianship. (Incapacity by clear and convincing evidence.) A ward, guardian or any interested person may petition for removal of a guardian on the grounds that removal would be in the best interest of the ward or for other good cause. Before terminating a guardianship, the court will follow the same procedures to safeguard the rights of the ward as apply to a petition for guardianship. The court may remove a guardian or permit a guardian to resign. A petition for removal or permission to resign may include a request for appointment of a successor guardian. (C.R.S. 15-14-112 and 318)

The court may modify the type of appointment or powers originally granted to the guardian if the extent of protection or assistance is currently excessive or insufficient or the ward’s capacity to provide for support, care, education, health, and welfare has so changed. (C.R.S. 15-14-318(2))

A temporary substitute guardian may be appointed for up to six months when a guardian is not performing effectively and the ward’s welfare requires. (C.R.S. 15-14-313) Except as otherwise ordered by the court, a temporary substitute guardian has the same powers as the original guardian.

Delegation of Power by a Guardian

By the use of a power of attorney, a guardian may delegate to another person, for a period not exceeding 12 months, any power regarding care, custody, or property of a ward, except the power to consent to marriage or adoption. This provision is useful if a guardian must be out of the geographical area for an extended period or during a medical leave. (C.R.S. 15-14-105)

Transfer to another country or state

The court making the appointment of a guardian may transfer the guardianship to a court in another county or another state if the court is satisfied that a transfer will serve the best interest of the ward. (C.R.S. 15-14-107(1))

Living Will- Declaration Concerning Medical or Surgical Treatment

1. Can only be set up while a person is competent to understand the consequences of the decisions.
2. In order for a Living Will to become operative, four conditions must exist:
   1. The individual (the declarant who has signed the Declaration) must be terminally ill due to an incurable or irreversible condition.
   2. The individual must be unable to decide whether to accept or reject medical or surgical treatment.
   3. The individual must be unable to make that decision because of unconsciousness or incompetence.
   4. The individual, or one acting for the individual, must submit the Declaration to the physician for entry into the individual’s medical record.
3. When these required conditions exist, the attending and one additional physician must:
   1. Certify the individual’s terminal condition in writing on the hospital record.
   2. Immediately attempt to notify the individual’s spouse, any adult child, parent or agent under a Medical Durable Power of Attorney (in that order) of the certification.
4. After the physicians’ certification is made, a period of 48 consecutive hours is granted by law for a challenge to the validity of the Declaration.
   1. A parent, adult child, spouse or MDPOA agent may challenge the Declaration in the district court in the county in which the patient is located.
   2. A legal representative is appointed for the patient and notice is given to certain adult relatives.
   3. The court determines the validity of the Declaration.
5. A physician, or a hospital or person acting at the physician’s direction, is free of criminal or civil liability for acting in accordance with a valid Declaration.
6. In certain situations, the law allows the physician to take actions not specifically provided in the Declaration:
   1. If the declarant is pregnant and if life-sustaining measures would enable the fetus to develop and survive, the Declaration is not enforceable.
   2. If pain results from the discontinuance of artificial nourishment, the physician may order that nourishment be provided to alleviate the pain.
7. A Declaration does not have to be notarized, but must be witnessed by two witnesses. Said witness shall not be:
   1. The attending physician or any other physician; or
   2. An employee of the attending physician or health care facility in which the declarant is a patient; or
   3. A person who has a claim against any portion of the estate of the declarant at his death at the time the declaration is signed; or
   4. A person who knows or believes that he is entitled to any portion of the estate of the declarant upon his death either as a beneficiary of a will in existence at the time the declaration is signed or as an heir at law.
8. If the declarant is a patient or resident of a health care facility, the witnesses shall not be patients of that facility.
9. In the event that the declarant is physically unable to sign the Declaration, it may be signed by some other person in the declarant’s presence and at his direction. Such other persons shall not be any of those listed in Paragraph 7 above.
10. A Declaration may be revoked by the declarant orally, in writing or by burning, tearing, canceling, obliterating or destroying such declaration.
11. Forms are available from hospitals, medical societies, the Guardianship Alliance and most stationery supply stores.
12. It is wise to have both a Medical Durable Power of Attorney and a Living Will. The Medical Durable Power of Attorney gives someone (an agent) authority to make decisions; the Living Will sets forth one’s desires regarding life sustaining treatment and gives direction to the agent under the Medical Durable Power of Attorney.

Durable Powers of Attorney

1. With a Power of Attorney, a person (the Principal) appoints another person or organization (the Agent or Attorney-in-fact) to act on his/her behalf in all matters as designated in the document. A person (the Principal) must have capacity to understand the consequences of the document.
2. In Colorado, there are two Durable Powers of Attorney:
   1. Medical Durable Power of Attorney includes medical and personal decision-making authority which may be limited or broad.
   2. General or Financial Durable Power of Attorney includes decisions about money and property and can include other matters, except medical decisions.
3. "Durable" means the agency continues if the principal becomes incapacitated. To be durable the document must contain wording such as "this power of attorney shall not be affected by the subsequent incapacity or disability of the principal.
4. A principal may revoke any power of attorney at any time even if he/she is considered to be incapacitated by a doctor, caregiver or family. To make changes in a document, he/she must write a new one.
5. An agent may not override the principal’s wishes even though the principal may be assessed as incapacitated.

   “Nothing in this section or in a medical durable power of attorney shall be construed to abrogate or limit any rights of the principal, including the right to revoke an agent’s authority or the right to consent to or refuse any proposed medical treatment, and no agent may consent to or refuse medical treatment for a principal over the principal’s objection.” C.R.S. 15-14-506.(4)(a)

6. An agent has the same authority for medical treatment as a guardian. If another person is appointed as the guardian for the principal, the agent has priority for making medical treatment decisions unless the Power of Attorney is revoked by the court.
7. An agent is obligated to follow the principal’s instructions when making decisions. Unless the DPOA states otherwise, the agent has the same authority to make decisions which the principal would make if able to do so.
8. The appointment of a spouse as an agent dissolves on divorce.
9. It is a good idea to designate a successor agent in the event an agent is unwilling, unable, or ineligible to act when a decision is necessary. A successor agent has the same authority as the primary agent.
10. Powers of Attorney can be set up through an attorney knowledgeable about estate planning and health care issues or set up with preprinted forms which are available from hospitals, nursing homes, or the Guardianship Alliance.
11. Colorado law does not require a DPOA to be witnessed, however, it is recommended that there be two witnesses or have the document notarized.

1. CPR - cardiopulmonary resuscitation are measures to restore cardiac function or support breathing in case of cardiac or respiratory arrest or malfunction. Includes:
   1. chest compression
   2. electric shock to the chest
   3. placing tubes in the airway to assist breathing.
2. May be executed by any person over age 18 who has decisional capacity to provide informed consent or any person authorized by law to make medical treatment decisions on behalf of an adult who lacks decisional capacity.
3. There is a duty to comply with CPR Directives by:
   1. emergency medical service personnel
   2. health care providers and facilities
4. No one is subject to civil or criminal liability for complying with a person's CPR Directive.
5. A person's consent to CPR is presumed without a CPR Directive.
6. In an inpatient setting, the Directive is implemented as a physician's order concerning resuscitation as directed by the person in the Directive.
7. May be revoked at any time by the person making the Directive or the person who is the subject of the Directive.
8. Form can only be obtained through a licensed health care facility or a physician.
9. Physician must inform person or surrogate of consequences and sign the Directive form.
10. Person can obtain a specific identifying bracelet or necklace.
11. Bracelet and necklace and more information available from the Colorado Medical Society.

The "Proxy Decision-makers for Medical Treatment Act" is intended to be used to make medical decisions on behalf of someone when no advance directive has been made, when there is no current guardian and when only medical treatment decisions are required. It is applicable for all adults regardless of the nature of a disability or illness and prevents the need to obtain guardianship in many cases. The procedure is authorized by Colorado statute. (C.R.S. 15-18.5-101 et.seq.)

The Proxy Decision-makers process is not an advance directive and must not be established upon admission to a long-term care facility or hospital.. It may be followed for a decisionally impaired adult if all of the following conditions exist:

1. Decisions are needed for medical treatment.

   "Medical treatment means the provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient's physical or mental health or personal care." (C.R.S. 15-14-505-(7))

2. A physician has determined that the patient lacks decisional capacity to provide informed consent to or refusal of medical treatment.

   Decisional capacity means the ability to provide informed consent to or refusal of medical treatment. To give informed consent the patient must be given all relevant information pertinent to the decision and be able to:

   • Recognize that a decision is needed.
   • Process the information, i.e. discuss it, remember it, evaluate the various factors, understand the consequences.

     Be cautious - making poor, stupid or unpopular decisions does not necessarily mean the patient lacks decisional capacity.

3. The patient has not made any Advance Directives such as a Living Will and/or Medical Durable Power of Attorney.
4. The patient does not have a guardian.
5. The patient has an interested person or persons, i.e., a spouse, parents, adult children, sibling or grandchildren or a close friend, involved in his/her life.
6. An interested person is available and able to serve as a proxy decision-maker.

The following is a step-by-step description of the Proxy Decisionmakers procedure.

NOTE: NO specific forms, attorneys, notary, or court are required. Some agencies use forms for their own records. A proxy decision-maker does not have to sign anything.

1. The attending physician or a court determines that an adult patient lacks decisional capacity to provide informed consent to or refusal of medical treatment.
2. Such findings along with specifics regarding the cause, nature, and projected duration of the patient's lack of decisional capacity is recorded in the patient's medical record.
3. The attending physician, or the physician's designee, makes reasonable efforts to notify the patient of the patient's lack of decisional capacity.
4. The attending physician, or designee, makes reasonable efforts to locate as many interested persons as practicable and may rely on those individuals to notify other family members or interested persons.
5. Upon locating an interested person, the physician or designee, informs such person of the patient's lack of decisional capacity and that a proxy decision-maker should be selected.
6. The identified interested persons are responsible for making reasonable efforts to reach a consensus as to whom among them should be the proxy decision-maker.

   It should be a person who has a close relationship with the patient and who is most likely to be currently informed of the patient's wishes regarding medical treatment decisions. (15-18.5-103(4)(a)

7. If any interested person disagrees with the selection or the decision of the proxy decision-maker, or if the interested persons cannot decide among them who the proxy decision-maker should be, then any of the interested persons may seek guardianship.
8. The attending physician or another health care provider makes reasonable efforts to advise the patient of the identity of the proxy decision-maker, and of the patient's right to object. (C.R.S. 15-18.5-103 (5))

   The definitions and provisions in C.R.S. 15-14-505 to 15-14-509 (the Medical Durable Power of Attorney) are applicable to the Proxy provisions. For example, just as a DPOA agent cannot override the principal’s wishes, neither can a proxy decision-maker make decisions against the wishes of the patient, regardless of the patient’s decisional capacity.

Additional information:

1. Artificial nourishment and hydration may be withheld or withdrawn from a patient upon a decision by a proxy ONLY after the attending physician and a second independent physician trained in neurology or neurosurgery certify in the patient's medical record that the provision or continuation of artificial nourishment and hydration is merely prolonging the act of dying and is unlikely to result in the restoration of the patient to independent neurological functioning.
2. A proxy decision-maker may request assistance with a decision to withhold or withdraw medical treatment from a health care facility's medical ethics committee or for an outside referral if there is no facility ethics committee.
3. If any interested person, the guardian or the attending physician believes the patient has regained decisional capacity, the physician must reexamine the patient and determine whether or not the patient has regained such decisional capacity and enter the decision in the patient's medical record, and notify the patient, the proxy decision-maker, and the person who initiated the redetermination.
4. Any attending physician, health care provider, or health care facility that makes reasonable attempts to locate and communicate with a proxy decision-maker is not subject to civil or criminal liability or regulatory sanction.

The following process is generally followed for appointment of a guardian of an incapacitated adult. It may vary with particular cases and by court. (From Colorado Revised Statutes, Title 15, Article 14, Part 3)

1. The law defines an incapacitated person as “an individual other than a minor, 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.” (C.R.S. 15-14-102(5))
2. A Petition for Appointment of a Guardian for an Incapacitated Person is filed with the District Court in the county in which the allegedly incapacitated person lives. In Denver, it is filed with the Probate Court. A petition can be initiated by any interested person.
3. There is a $136 filing fee which is payable when the petition is filed. In most counties, the Visitor’s Fee is around $25/hour. In Denver, there is a flat fee of $75.00 for the Court Visitor. If appropriate, the court may waive the fees based on the respondent's and petitioner's inabilities to pay as described in an Affidavit of Support of Petition to Proceed In Forma Pauperis.
4. Medical information must be attached to the petition to support the need for guardianship. This can be a letter or report resulting from a professional evaluation by a physician, psychologist, or other individual qualified to evaluate the respondent's alleged impairment. If not submitted with the petition, the court may order such an evaluation and shall do so if demanded by the respondent. The evaluation report must contain: (C.R.S. 15-14-306)
   1. A description of the nature, type, and extent of the respondent's specific cognitive and functional limitations, if any;
   2. An evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
   3. A prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and
   4. The date of any assessment or examination upon which the report is based.
5. In addition to general information about the respondent and the need for guardianship, the petition must specify the type of guardianship requested. The law presumes that a limited guardianship is necessary in order to preserve the rights of the respondent to manage as many of his/her own affairs as possible while still providing necessary protection and oversight. Limited guardianship may include authority to make only medical decisions, only placement decisions, or only financial decisions. Or it may include a combination of one or two areas. In all other matters, the guardian has no authority. The petition must specify the powers to be granted to the limited guardian. If an unlimited guardianship is necessary, the petition must state the reason why limited guardianship is inappropriate. (C.R.S. 15-14-304(2)(h))
6. The petition must include a general statement of the respondent's property with an estimate of its value, any insurance or pension, and the source and amount of any other anticipated income or receipts. (C.R.S. 15-14-304(2)(i))
7. Priorities For Appointment as Guardian (C.R.S. 15-14-310)
   1. current court-appointed guardian;
   2. respondent's nominee;
   3. agent under health care power of attorney;
   4. agent under general power of attorney;
   5. spouse or spouse's nominee in will or other writing;
   6. adult child;
   7. parent or parent's nominee; or
   8. adult with whom respondent resided for 6 out of 12 months preceding.
8. Prohibitions Against Appointment as Guardian
   1. Long-term care providers are prohibited from serving as guardian for a person for whom they provide care unless related by blood or marriage. (C.R.S. 15-14-310(4))
   2. Professionals may not serve the same person as both:
      1. guardian and conservator
      2. guardian and direct service providers; or
      3. conservator and direct service provider. (C.R.S. 15-14-310(5)(a))
   3. A guardian or conservator may not employ the same person to act as both care manager and direct service provider for a ward. (C.R.S. 15-14-310(5)(b))
   4. Prohibition against dual roles may be overturned by the court for good cause.
9. Following the filing of the Petition, the court appoints a Visitor who serves as an investigator for the court. (C.R.S. 15-14-305)
   1. Must interview the respondent to:
      1. explain the substance of the petition,
      2. the nature, purpose, and effect of the proceeding,
      3. the general powers and duties of a guardian, and
      4. the following rights of the respondent:
         1. to have notice of and be present in person at any court proceeding;
         2. to see or hear all evidence bearing on respondent's condition;
         3. to be represented by counsel of choice or court-appointed counsel;
         4. to present evidence;
         5. to cross-examine witnesses, including any court-appointed visitor, evaluator or physician;
         6. to contest the petition;
         7. to object to the appointment of the proposed guardian or his/her powers or duties;
         8. to object to the creation of the proposed guardianship, or its scope or duration;
         9. to have a guardian ad litem appointed to represent the respondent's best interests if the court determines that need for such representation exists.
      5. inform the respondent that all costs and expenses of the proceeding, including attorney fees, will be paid from the respondent's estate, unless otherwise directed by the court.
   2. Interview the petitioner and the proposed guardian (if different).
   3. Visit the present and proposed dwellings of the respondent.
   4. Obtain information from any physician or other person who is known to have treated, advised or assessed the respondent's relevant physical or mental condition.
   5. Make any other investigation the court directs.
   6. Must promptly file a report in writing with the court which must include:
      1. a recommendation as to whether an attorney and/or a guardian ad litem should be appointed;
      2. a summary of daily functions the respondent can manage without assistance, those he/she could manage with the assistance of supportive services or benefits, including use of appropriate technological assistance, and those he/she cannot manage;
      3. recommendations regarding the appropriateness of guardianship;
      4. whether less restrictive means of intervention are available;
      5. the type of guardianship and, if limited, the powers to be granted to the limited guardian;
      6. a statement of the qualifications of the guardian and a statement as to whether the respondent approves or disapproves of the proposed guardian, the powers and duties proposed and the scope of the guardianship;
      7. a statement of whether the proposed dwelling meets the respondent's individual needs;
      8. a recommendation of whether a professional evaluation or further evaluation is necessary;
      9. and any other maters the court directs.
10. A Hearing is scheduled on the matter of the petition for guardianship.
11. Notice of the Hearing to the Respondent (C.R.S. 15-14-309(1))
    1. Must state that the respondent must be physically present for the hearing, unless excused by the court; include the respondent's rights at the hearing; describe the nature, purpose and consequences of an appointment.
    2. A copy of the Notice of Hearing to Respondent must be personally served on the respondent, with a copy of the petition attached, at least 10 days prior to the hearing. Personal service may be done by any disinterested person. It is not necessary to hire a Process Server.
12. Notice of Hearing to Parties Listed on the Petition (C.R.S. 15-14-309(2))
    1. Includes:
       1. spouse or, if no spouse, an adult with whom respondent has resided for at least 6 out of the 12 months preceding the filing of the petition;
       2. adult children and parents;
       3. if none, at least one of the adults nearest in kinship to the respondent who can be found with reasonable efforts;
       4. each person responsible for care or custody of the respondent;
       5. treating physician;
       6. each legal representative of the respondent;
       7. each person nominated as guardian by the respondent.
    2. A copy of the Notice of Hearing to Interested Persons must be served on the above along with a copy of the petition, at least 10 days prior to the hearing.
13. Hearing Presence, Rights and Findings (C.R.S. 15-14-308)
    1. The respondent must attend the Hearing unless excused by the court for good cause. The Petitioner must make reasonable efforts to secure the respondent’s attendance.
    2. The court may hold the Hearing in a manner that reasonably accommodates the respondent, for example by telephone or in the respondent’s place of residence.
    3. The hearing is open unless it is closed by request of the respondent or any other showing of good cause. It cannot be closed over the objections of the respondent.
    4. The petitioner and proposed guardian (if different) and the respondent must attend the Hearing.
    5. Any person may request permission to participate in the proceeding.
    6. A guardian can be appointed only if the court finds by clear and convincing evidence that the respondent is an incapacitated person whose needs can not be met by less restrict means, including the use of appropriate and reasonably available technological assistance. (C.R.S. 15-14-311(1))
    7. The court must limit the guardian's powers so as to encourage maximum self-reliance and independence of the ward. (C.R.S. 15-14-311(2))
14. Notice of Appointment (C.R.S. 15-14-311(3))

    Within 30 days of the appointment of the guardian, a copy of the Notice of Appointment of Guardian and/or Conservator and Notice of Right to Request Termination or Modification, with a copy of the Order, must be given to the ward (respondent) and persons listed in the petition.

15. Reports to Court (C.R.S. 15-14-317)
    1. Within 60 days after appointment, the guardian must file a report with the court on the condition of the ward, the guardian’s pers
    onal care plan for the ward, and account for money and other assets in the guardian’s possession or control.
    2. Guardians must file an annual report with the court on a form provided by the court.
16. Notice of post-appointment hearings must be given to the ward and any others required by the court. (C.R.S. 15-14-309(3))
17. Emergency Guardianship (C.R.S. 15-14-312)
    1. The court may appoint an emergency guardian when substantial harm to the respondent's health, safety or welfare is likely to occur without intervention.
    2. Emergency guardianship is limited to 60 days.
    3. Appointment of an attorney for the respondent is mandatory and continues throughout the emergency guardianship.
    4. Appointment of an emergency guardian is not a determination of incapacity.
18. A Temporary Substitute Guardian may be appointed for up to 6 months when a guardian is not performing effectively and the ward's welfare requires. (C.R.S. 15-14-313)
19. A Successor or Co-Guardian may be named by a guardian and appointed by the court upon filing of an Acceptance of Appointment either at any time after the appointment or within 30 days after a vacancy occurs. (C.R.S. 15-14-112(3))