Conflicts in Guardianships and Conservatorships, Part II: Priority for Appointment
When it is determined that, due to cognitive decline, an elderly person needs a guardian, conservator, or both to manage their affairs, family members may disagree as to who should be in that role. Before the arguments get too heated, it is important to understand who has priority to be appointed as guardian/conservator. In Colorado, this is determined by statutes. Although the priority for guardians and conservators are contained in two different statutes, the list is identical for both roles. This list is as follows:
- A person already acting as guardian/conservator. This situation is not very common but may occur if the guardian/conservator was appointed in another state.
- A person nominated to act as guardian/conservator by the elderly person. This is usually found in a durable power of attorney document. The nomination language typically states that if a court-appointed guardian or conservator is needed, the agent under the power of attorney is nominated to act in such role. It is common for the same person to be nominated to act as both guardian and conservator. However, this is not required, and there are times when an elderly person may nominate one person to make medical decisions and another to make financial decisions. In such situations, the medical decision-maker has priority to be appointed guardian and the financial decision-maker has priority to be appointed conservator.
- An agent appointed by the elderly person under a durable power of attorney. Sometimes, a power of attorney document will not contain the nomination language which would allow priority in point #2, above. This is common in pre-printed forms provided by financial institutions, medical facilities, and free documents downloaded from the Internet. However, even without the specific nomination language, the law presumes that the person named as agent would also be the choice to act as guardian/conservator. As in point #2, an agent for medical decisions may be different from an agent for financial decisions.
- A spouse or a person nominated by will or other signed writing of a deceased spouse. This is important to keep in mind in the case of second marriages where the stepchildren do not get along with the stepparent.
- A partner in a civil union or a person nominated by will or other signed writing of a deceased partner in a civil union.
- An adult child. It is important to note that all adult children have equal priority.
- A parent or an individual nominated by will or other signed writing of a deceased parent.
- An adult with whom the elderly has resided for more than six months immediately before the filing of the petitions for guardian/conservator.
This list is not set in stone. The statutes specifically state that a court, “for good cause, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.” However, there must be “good cause” for deviating from the list. There is also the option of appointing a professional to act as a guardian and another professional to act as conservator (the law prohibits the same professional from acting in both roles). Although this can become expensive, it may be appropriate if the conflict among family members would be detrimental to the welfare of the elderly person.
If you have an elderly relative who is experiencing cognitive decline, be aware that there may be conflict among family members. If this is the situation, our Longmont elder law attorneys can sit down with you and determine the best course of action. Call our office today at (720) 809-8310 to schedule an appointment.