Thank you for choosing Evans Case, LLP to assist you with your probate matter. Serving as a guardian can be overwhelming at times, so we stand ready to be of assistance should you have any questions or concerns. This brochure provides an overview of the roles and responsibilities of a guardian.
A guardian is a person who a Colorado Court appoints to oversee the general welfare and care of a minor or an individual who is incapacitated by illness or accident. In general, guardians are responsible for:
Carrying out any specific Court orders.
Managing the individual’s welfare and care, including medical.
Determining where the individual lives, as well as their educational and/or vocational
Under Colorado law, a guardian is deemed to be a fiduciary, and as such, is held to a very high standard of care. A guardian is accountable to the individual, the Court and other interested persons. They are expected to act prudently and in the best interests of the protected individual at all times.
How is someone appointed to be guardian?
The petitioner – typically a family member or friend – will nominate a guardian within the Petition for Appointment of Guardian. It is important that family members and friends work together with the petitioner to identify who best to serve in this role before filing the petition. Sometimes people identify who they wish to have act as the guardian in their will or power of attorney documents many years before needing one. As a result, that individual may not want to take on that responsibility or is no longer capable of serving in that capacity. If this occurs, the petitioner should meet with the protected person’s family to discuss who else should be nominated as the guardian before filing the petition.
What authorities do I have as guardian?
Your authority is outlined in documents: “Letters of Guardianship” and the “Order Appointing Guardian.” Both documents will be issued by the Court following the hearing. The guardianship may be limited in duration, scope and level of Court involvement. The Court seeks to maximize the protected person’s independence and involvement, and may require specific actions to achieve this standard.
Upon appointment, you will be asked to review and sign an Acknowledgment form that summarizes your appointment and responsibilities. It is important that you read the Court’s Order thoroughly and comply with the terms of the appointment before signing it. The form also outlines specific due dates for reports to file with the Court. It is very important that any reports requested by the Court are filed on or before the due date.
Once appointed, you will have a fiduciary duty to the protected person, meaning that you must always act in the best interest of and with undivided loyalty to them. In most situations, it is necessary to disclose the guardian/ward relationship. You will usually have the authority to make most or all decisions related to the individual’s health, education and welfare. A guardian may also sign legal documents on behalf of the individual; choose an appropriate living situation; and grant, withhold and withdraw consent to medical treatment.
What duties do I have as guardian?
Guardians are expected to:
What are my liabilities as guardian?
You may be personally liable to the individual or a third party in certain circumstances, including when the relationship is not disclosed, you are directly at fault, grossly negligent or acted criminally. In some situations, you may be personally liable even though your improper actions were not intentional or negligent.
How long must I serve as guardian?
A guardianship may end for several reasons, including:
A guardian’s duties to the individual continue until a successor guardian is appointed or otherwise directed by the Court.
Mandatory reporting of an at-risk elder
At at-risk elder is any person who is 70 years of age or older. As the guardian, you are considered a “mandatory reporter.” If you witness or become aware that an at-risk elder is or at risk for abuse, caretaker neglect or financial exploitation, you must make a report to law enforcement within 24 hours. Am I compensated for serving as guardian? Who is responsible for related expenses? You are entitled to reasonable compensation and reimbursement of out-of-pocket expenses from the guardianship estate for acts on behalf of the protected individual during the guardianship (e.g. hiring professionals to help you provide care and make decisions). Reasonable compensation is determined on a case-by-case basis and good recordkeeping and accounting is absolutely necessary. Any compensation is considered income to you, and as such, is generally taken as a tax deduction by the individual you are guarding.
Thank you again for choosing Evans Case, LLP.
Evans Case is a full-service Denver Law Firm. With more than 110 years of collective experience we are relentless and compassionate advocates for our clients. The deep legal experience and wisdom of our senior attorneys combined with fresh thinking of younger associates ensure the best possible results in each case. Our attorneys understand that the best outcomes are built on thorough understanding, compassion, and respect.