2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 14 - Persons Under Disability - Protection
Part 3 - Guardianship of Incapacitated Person
§ 15-14-304. Judicial Appointment of Guardian - Petition

1. An individual or a person interested in the individual's welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual.
2. The petition must set forth the petitioner's name, residence, current address if different, relationship to the respondent, and interest in the appointment and, to the extent known, state or contain the following with respect to the respondent and the relief requested:
   1. The respondent's name, age, principal residence, current street address, and, if different, the address of the dwelling in which it is proposed that the respondent will reside if the appointment is made;
   2. 1. The name and address of the respondent's: (b) (I) The name and address of the respondent's:
         1. Spouse or partner in a civil union or, if the respondent has none, an adult with whom the respondent has resided for more than six months within one year before the filing of the petition; and
         2. Adult children and parents; or

      2. If the respondent has neither spouse, partner in a civil union, adult child, nor parent, at least one of the adults nearest in kinship to the respondent who can be found with reasonable efforts;

   3. The name and address of each person responsible for care or custody of the respondent, including the respondent's treating physician;
   4. The name and address of each legal representative of the respondent;
   5. The name and address of each person nominated as guardian by the respondent;
   6. The name and address of each proposed guardian and the reason why the proposed guardian should be selected;
   7. The reason why guardianship is necessary, including a brief description of the nature and extent of the respondent's alleged incapacity;
   8. If an unlimited guardianship is requested, the reason why limited guardianship is inappropriate and, if a limited guardianship is requested, the powers to be granted to the limited guardian; and
   9. A general statement of the respondent's property with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts.

History. Source: L. 2000: Entire part R&RE, p. 1792, § 1, effective January 1, 2001 (see § 15-17-103 ). L. 2013: (2)(b)(I)(A) and (2)(b)(II) amended,(SB 13-011), ch. 49, p. 165, § 19, effective May 1.

This section is similar to former § 15-14-303 as it existed prior to 2001.

Law reviews. For note, “Settling the Personal Injury Claim of a Minor”, see 38 U. Colo. L. Rev. 377 (1966). For article, “Adult Guardianships and Conservatorships: Protection of Constitutional Rights”, see 15 Colo. Law. 820 (1986). For article, “Colorado Guardianship and Conservatorship Law: A Status Report”, see 16 Colo. Law. 421 (1987). For article, “Interrogating Medical Witnesses As to Mental Capacity”, see 23 Colo. Law. 2753 (1994). For article, “The Self-Interested Fiduciary: Implications in Guardianship and Conservatorship Law”, see 24 Colo. Law. 2181 (1995). For article, “The Court Friends Program of the Denver Probate Court”, see 25 Colo. Law. 49 (Mar. 1996). For article, “Defects, Due Process, and Protective Proceedings”, see 27 Colo. Law. 39 (Apr. 1998). For article, “How to Reconcile Advance Care Directives With Attempted Suicide”, see 42 Colo. Law. 97 (July 2013).

Annotator's note. Since § 15-14-304 is similar to repealed and reenacted § 15-14-303 and repealed § 152-9-2, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

The use of the term adjudicating in article 10 of title 27 indicates that a jury verdict is not an essential requisite of adjudication within the meaning of this section. Young v. Brofman, 139 Colo. 296 , 338 P.2d 286 (1959).

Allegations of complaint insufficient to confer jurisdiction to appoint guardian. Nelson v. Nelson, 31 Colo. App. 63, 497 P.2d 1284 (1972).

Proof by clear and convincing evidence is required in guardianship proceedings because of the possibility of being deprived of basic liberties. Sabrosky v. Denver Dept. of Soc. Servs., 781 P.2d 106 (Colo. App. 1989).

An evidentiary hearing is necessary to consider the factual circumstances to determine whether a petitioner is a person interested in the welfare of the incapacitated person. In re Estate of Edwards, 794 P.2d 1092 (Colo. App. 1990).

No authority existed to interview allegedly incapacitated person in her home ex parte, even though the probate judge was motivated by her concern for the allegedly incapacitated person's welfare, by her deteriorated physical and mental condition, and by the court's desire to evaluate her without the undue influence of third parties. Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App. 1998).

This section unambiguously entitled the allegedly incapacitated person to attend her competency hearing. Anything less would implicate constitutional concerns because a potential deprivation of fundamental rights and liberties is involved. Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App. 1998).

A necessary inference from the express right to be present by counsel is the right to retain counsel. Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App. 1998).

No authority existed to deny the allegedly incapacitated person counsel on the grounds that she was incompetent to engage counsel. Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App. 1998).

Because a guardian ad litem and counsel represent different interests, appointment of a guardian ad litem for the allegedly incapacitated person did not substitute for counsel. Estate of Milstein v. Ayers, 955 P.2d 78 (Colo. App. 1998).

It is within the court's discretion to appoint legal counsel in addition to a guardian ad litem for an incapacitated person where the guardian ad litem does not undertake to represent the incapacitated person's legal interests in a proceeding to gain permission to withhold life-sustaining treatment. Dept. of Insts. v. Carothers, 821 P.2d 891 (Colo. App. 1991).

Although subsection (6) does not unambiguously grant the court power to assess attorney fees against another branch of government, it was within the court's discretion to assess attorney fees against the department of institutions. Dept. of Insts. v. Carothers, 821 P.2d 891 (Colo. App. 1991).

Defendant, department of institutions, waived its right to appeal issue that attorney fees may not be assessed against it on grounds that this section does not contain express authorization for the assessment of such fees against state agencies where argument was not presented at trial and there was no indication that the court of appeals ruled on the issue. Carothers v. Dept. of Insts., 845 P.2d 1179 (Colo. 1993).

Applied in Romberg v. Slemon, 778 P.2d 315 (Colo. App. 1989); Arguello v. Balsick, 2019 COA 20 M, 446 P.3d 937.