- Elder Law
- , Guardianships
When most people think of conflict in a guardianship and conservatorship situation, they think of conflict among the family members deciding who will be appointed guardian and conservator for an elderly parent or another relative who may need assistance. However, there are times when the person may disagree about the need for help.
It is quite common for a person in the early stages of Alzheimer’s or dementia to be physically healthy and be able to move around, and perhaps even drive. Persons in the early stages of Alzheimer’s or dementia generally have “good” days and “bad” days. On “bad” days, when their memory fails, they may become very suspicious of the people trying to help them. They may even believe that the son or daughter they trusted to help them with their finances, and who is actually doing a good job in helping, is stealing from them or hiding things from them. They may have even given their caretaker child a power of attorney to act on their behalf.
However, when suspicion takes over on a “bad” day, the parent may decide to call their financial institution or institutions and tell them that their child is no longer allowed to have access to their account. The financial institution, out of an abundance of caution, will interpret this as a revocation of the power of attorney. So, despite earlier attempts at planning for incapacity, the child is left with no means to assist the parent because the power of attorney is deemed revoked. The parent may strenuously deny that they need any help with their affairs.
The solution to this problem is for the child to petition the court to be appointed conservator for the parent. It is likely that the parent could object, in which case the court may appoint an attorney to represent the parent. The hearing will be “contested” and it will then be up to the petitioner (that is, the child who filed the petition) to present medical evidence (usually in the form of testimony from the parent’s personal physician) that the person really does have cognitive decline and needs assistance in order to successfully be appointed conservator. In some cases, the court may require a neuropsychological evaluation to determine the extent of the parent’s cognitive ability.
Generally, such cases do result in the appointment of a conservator for the parent, but obviously, there will be more time and costs associated with such a contested matter. There are also some creative ways to allow the parent to still feel that they are in control of their finances. For example, the court may order that the parent receive a weekly allowance or “mad money” that they can use however they see fit. The amount will be relatively small so as not to diminish the person’s assets, but this may be enough for the elderly parent to feel in control again.
If you have an elderly relative who is experiencing cognitive decline, be aware that the transition will not always be smooth. Alzheimer’s and dementia can produce feelings of suspicion and agitation and can cause the elderly person to shut out the very people who are trying to help. If this is the situation, our attorneys can sit down with you and determine the best course of action.
Reasons a Person Can Be Appointed as Guardian/Conservator
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.
About the Process
At the hearing, the elderly person who needs assistance with their affairs is known as the Respondent. In contested cases, the court will almost always appoint an attorney to represent the Respondent. The person who filed the petition to appoint a guardian and/or conservator is known as the Petitioner. In contested cases, another person may file a competing petition to be appointed guardian and/or conservator.
Prior to the hearing, the court will appoint a Visitor who will interview the Respondent, the Petitioner or Petitioners, caregivers, and even other family members. The Visitor will then file a report with the court. In the report, the Visitor will present their impressions as to the Respondent’s cognitive status and whether the appointment of a guardian and/or conservator is appropriate. The Visitor will also present their opinions of the competing Petitioners and whether they would be able to handle the duties of being a guardian or conservator. This report is not binding on the court but it can be fairly persuasive, especially in contested cases.
The Respondent not only has a right to be at the hearing, the statute actually requires the Respondent to attend unless excused by the court for good cause. “Good cause” varies but generally requires a significant health problem that would either prevent the Respondent from attending the hearing or make it dangerous for the Respondent to attend the hearing. The Respondent has a right to express a preference as to who he or she wants to serve as guardian and/or conservator and the Court should take this preference into account.
Depending on the level of conflict, the hearing may involve testimony from experts as to the Respondent’s level of cognitive functioning. The Petitioner or Petitioners can present testimony from other family members and even friends to support their position that they are best suited for the role of guardian and/or conservator. This is not the time to present petty disagreements or air “dirty laundry.” The court’s task is not to determine who is the “favorite” son or daughter or to avoid hurt feelings. The court has the very serious task of deciding who is best suited to manage the Respondent’s finances and medical decisions.