2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 14 - Persons Under Disability - Protection
Part 3 - Guardianship of Incapacitated Person
§ 15-14-310. Who May Be Guardian - Priorities - Prohibition of Dual Roles

1. Subject to subsection (4) of this section, the court in appointing a guardian shall consider persons otherwise qualified in the following order of priority:
   1. A guardian, other than a temporary or emergency guardian, currently acting for the respondent in this state or elsewhere;
   2. A person nominated as guardian by the respondent, including the respondent's specific nomination of a guardian made in a durable power of attorney or given priority to be a guardian in a designated beneficiary agreement made pursuant to article 22 of this title;
   3. An agent appointed by the respondent under a medical durable power of attorney pursuant to section 15-14-506;
   4. An agent appointed by the respondent under a general durable power of attorney;
   5. The spouse of the respondent or a person nominated by will or other signed writing of a deceased spouse;

      (e.5) The partner in a civil union of the respondent or a person nominated by will or other signed writing of a deceased partner in a civil union;

   6. An adult child of the respondent;
   7. A parent of the respondent or an individual nominated by will or other signed writing of a deceased parent; and
   8. An adult with whom the respondent has resided for more than six months immediately before the filing of the petition.

2. A respondent's nomination or appointment of a guardian shall create priority for the nominee or appointee only if, at the time of nomination or appointment, the respondent had sufficient capacity to express a preference.
3. With respect to persons having equal priority, the court shall select the one it considers best qualified. The court, for good cause shown, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.
4. An owner, operator, or employee of a long-term-care provider from which the respondent is receiving care may not be appointed as guardian unless related to the respondent by blood, marriage, or adoption.
5. 1. Unless the court makes specific findings for good cause shown or the person is a family caregiver as defined in section 25.5-10-202, C.R.S., or the person is a caregiver to an eligible person pursuant to section 25.5-6-1101 (4), C.R.S., the same professional may not act as an incapacitated person's or a protected person's:
      1. Guardian and conservator; or
      2. Guardian and direct service provider; or
      3. Conservator and direct service provider.

   2. In addition, a guardian or conservator may not employ the same person to act as both care manager and direct service provider for the incapacitated person or protected person unless the person is a family caregiver as defined in section 25.5-10-202, C.R.S.

History. Source: L. 2000: Entire part R&RE, p. 1796, § 1, effective January 1, 2001 (see § 15-17-103 ). L. 2009: (1) amended,(HB 09-1260), ch. 107, p. 445, § 11, effective July 1. L. 2010: (1)(b) amended,(SB 10-199), ch. 374, p. 1753, § 18, effective July 1. L. 2011: (5) amended,(SB 11-083), ch. 101, p. 305, § 10, effective August 10. L. 2012: (5)(a) amended,(SB 12-074), ch. 110, p. 386, § 1, effective April 13. L. 2013: (1) amended,(SB 13-011), ch. 49, p. 165, § 20, effective May 1; IP(5)(a) and (5)(b) amended,(HB 13-1314), ch. 323, p. 1803, § 25, effective March 1, 2014.

This section is similar to former § 15-14-311 as it existed prior to 2001.

For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101 .

COMMENT

This section gives top priority for appointment as guardian to existing guardians appointed elsewhere, to the respondent's nominee for the position, and to the respondent's agent, in that order. Existing guardians are granted a first priority for two reasons. First, many of these cases will involve transfers of a guardianship from another state. To assure a smooth transition, the currently appointed guardian, whether appointed in this state or another, should have the right to the appointment at the new location. Second, other cases will involve situations where a guardianship appointment is sought despite the appointment in another place. Granting the existing guardian priority will deter such forum shopping. If the existing guardian is inappropriate for some reason, subsection (b) permits the Court to pass over the existing guardian and appoint another with or without priority. While an existing guardian is generally granted a first priority for appointment, a temporary substitute and an emergency guardian are excluded from priority because of the short-term nature of their involvement.

A guardian or individual nominated by the respondent or the agent named in the respondent's health care power of attorney has priority for appointment over the respondent's relatives. The nomination may include anyone nominated orally at the hearing, if the respondent has sufficient capacity at the time to express a preference. The nomination may also be made by a separate document. While it is generally good practice for an individual to nominate as the guardian the agent named in a durable power of attorney, the section grants such an agent a preference even in the absence of a specific nomination. The agent is granted a preference on the theory that the agent is the person the respondent would most likely prefer to act. The nomination of the agent will also make it more difficult for someone to use a guardianship to thwart the authority of the agent. To assure that the agent will be in a position to assert this priority, Sections 5-304(b)(4) and 5-309(b) require that the agent receive notice of the proceeding. Also, until the Court has acted to approve the revocation of that authority, Section 5-316(c) provides that the authority of an agent for health-care decisions takes precedence over that of the guardian.

Subsection (a)(7) gives a seventh-level preference to a domestic partner or companion or an individual who has a close, personal relationship with the respondent. Note that there is no requirement that the respondent had resided with the adult for more than six months to the filing of the petition, just that the requisite residency have occurred at some point in time before the petition is filed. Courts should use a reasonableness standard in applying this subsection so that priority is given to someone with whom the respondent has had a close, enduring relationship. For factors to consider in making this determination, see the comment to Section 5-304, which discusses the interpretation of the phrase “an adult with whom the respondent has resided for more than six months before the filing of the petition” within the context of the persons required to be listed in the petition for appointment. Note that although the phrase can be interpreted quite broadly, it is intended to be descriptive of those individuals who have had an enduring relationship with the respondent for at least a six month period and who, because of this relationship, should be given a priority for consideration as guardian.

Subsection (c) prohibits anyone affiliated with a long-term care institution at which the respondent is receiving care from being appointed as guardian absent a blood, marital or adoptive relationship. Strict application of this subsection is crucial to avoid a conflict of interest and to protect the ward. Each state enacting Parts 1-4 of this article needs to insert the particular term or terms used in the state for those facilities considered to be long-term care institutions.

A professional guardian, including a public agency or nonprofit corporation, was specifically not given priority for appointment as guardian because those given priority are limited to individuals with whom the ward has a close relationship. The committee which drafted the 1997 revision of the Uniform Guardianship and Protective Proceedings Act (Parts 1-4 of this article) recognized the valuable service that a professional guardian, a public agency or nonprofit corporation provides. A professional guardian can still be appointed guardian if no one else with priority is available and willing to serve or if the Court, acting in the respondent's best interest, declines to appoint a person having priority. A public agency or nonprofit corporation is eligible to be appointed guardian as long as it can provide an active and suitable guardianship program and is not otherwise providing substantial services or assistance to the respondent, but is not entitled to statutory priority in appointment as guardian.

This section is based on UGPPA (1982) Section 2-205 (UPC Section 5-305 (1982)).

Law reviews. For article, “Anticipating Disabilities: Voluntary Planning Opportunities in Colorado”, see 17 Colo. Law. 437 (1988). For article, “Divorce Considerations Relevant to an Estate Planning Practice”, see 29 Colo. Law. 53 (Feb. 2000). For article, “The Basics on Juveniles in Probate Court for Protective Proceedings”, see 36 Colo. Law. 15 (Feb. 2007).

Trial court failed to make findings regarding whether the respondent had sufficient capacity to nominate a guardian or conservator. Although a trial court, upon a showing of good cause, has the authority to appoint a respondent's preferred guardian and conservator, the court must make findings relative to good cause. In re Estate of Runyon, 2014 COA 181 , 343 P.3d 1072.

Trial court did not abuse discretion by denying appointment of potential guardian when it concluded that facts demonstrated a potential conflict of interest between potential guardian and a long-term care provider that rendered potential guardian unsuitable as a guardian. Arguello v. Balsick, 2019 COA 20 M, 446 P.3d 937.