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So Now You Are a Guardian

 

You recently have been named as someone’s guardian by the courts. What does this mean? What are your responsibilities? What are potential liabilities? This pamphlet is meant as a general guide. If you have detailed questions, you should consult an attorney knowledgeable in this area of the law.

Introduction

A guardian is appointed to assist with the personal and medical affairs and day-to-day life of a minor or a person who is impaired. The person you are appointed to help is referred to as a "ward."

These impairments can be mental illness, mental deficiency, physical illness or disability. This means the ward cannot receive or understand information or make or communicate decisions and that the ward cannot satisfy essential requirements for his or her physical health, safety, and self-care even with reasonably available technological assistance.

A guardian is not the same as a "conservator." A conservator is appointed to manage someone’s financial affairs. A person may have either a guardian or a conservator or both. Where there is both a guardian and conservator, the same person might serve in both capacities, especially if it’s a family member. If a professional caretaker or case manager is involved, that person can only serve as guardian or as conservator, but not as both.

When you are appointed, the clerk of the court prepares a written document called "Letters of Guardianship" as evidence of your authority to act as your ward’s guardian. You should get certified copies, and either show them or deliver them to interested parties like schools, health care providers, hospitals and government agencies upon their request. The Letters of Guardianship and the court order will state any special powers or limits on your authority.

As guardian, you have limited authority to manage the finances of your ward. A guardian can receive and use income for support and maintenance and to pay the ward’s current bills. Guardians can generally receive their ward’s Social Security benefits, disability income and similar benefits, and may be asked to help the conservator in deciding on a monthly budget and financial plan. Extra money should be given to the conservator, trustee or other person generally responsible for the ward’s finances.

Your Responsibility To The Court

The court requires you to file a Guardian Report within 60 days of your appointment and at least yearly after that. The Guardian Report is filed with the court along with a Notice of Filing By Guardian or Conservator. You may be able to get these forms for the Guardian Report and the Notice of Filing By Guardian or Conservator from the court clerk's office.

The Guardian Report gives information about your ward’s health, including his or her physical and mental condition, diagnosis and prognosis; a personal care plan for the ward; plans for any therapies or treatments or other services; plans for future care; and any other issues that should be brought to the Court’s attention. If there is any significant change in the ward’s condition or situation or you move to a new address, you should notify the court without waiting for the regular time to file the Guardian Report. Unlike conservators, guardians are not normally required to post bond or file a periodic financial accounting.

Your Responsibility To Your Ward

Your responsibility will vary with the circumstances.

If your ward is a minor, your responsibility will include deciding where the child lives and attends school. You will sign school enrollment papers, routine medical consents and other consents. If your ward is incapacitated by physical or mental disability, you will be responsible for housing (including the difficult decisions regarding nursing home or other institutional care), choosing a doctor and medical care, and generally seeing that basic daily personal needs of your ward are met, including food, clothing and shelter. If there is no conservator for your ward’s estate, you are responsible for applying for and obtaining periodic benefits for your ward such as Social Security, disability income and other public assistance.

The philosophy of the guardianship law is that your powers as guardian should be no greater than necessary to see to the particular needs of your ward. The idea is that your ward should be encouraged to develop and maintain the greatest degree of independence and self-esteem possible under the circumstances. The limits of your powers and authority may be stated in the Letters of Guardianship and the court order.

Your original order of appointment may have some limits on your power to act without court order (for example, removal of the ward from the state or removal from the family home to a nursing home). Your attorney can advise you regarding how these limitations apply to you as a guardian.

The law specifies certain authorizations a guardian cannot give. For instance, you cannot consent on behalf of the ward to involuntary treatment for mental illness, developmental disability or alcoholism.

It is important to note that under the Colorado Probate Code that by serving as guardian you do not normally assume personal financial responsibility for the needs of your ward. However, you may be personally liable if you do not state that you are acting as a guardian or make a personal guarantee in your individual capacity.

Compensation

As guardian you are entitled to reasonable compensation for your services, payable from the funds of the ward. Any compensation that you receive is taxable income to you and is tax deductible from the income of the protected person. Many family members serve for no compensation other than reimbursement for out-of-pocket expenses, including mileage, parking and the like. There is no statutory schedule or precise criteria for a guardian=s fees. Rather, the Probate Code simply mandates that these fees must be fair and reasonable based on the time spent and results obtained, leaving the matter of compensation to be determined on a case-by-case basis.

If you plan to claim compensation, you must keep a record of your time involved in acting as a guardian, including a description for each time entry of the services performed. Keep this record to support and answer any questions the court may have about your claimed compensation when the court reports are reviewed. Note that time spent for friendship and companionship is not compensable. Petitions for compensation may be prepared and presented to the court on a periodic basis by the attorney for you as guardian. Reasonable attorneys= fees are also payable out of the funds of the ward and may also be reviewed by the court on a periodic basis.

Termination

A guardianship most often terminates upon the death of the ward, or upon order of the court. You must go to court to wind up the guardianship and to get your discharge or release from liability as guardian. A court proceeding is necessary to relieve you of responsibility to the court and to your ward, and to protect you from possible future liability during the time you spent serving as guardian.

Words of Caution

This pamphlet cannot and does not try to answer everything you may need to know about being a guardian. It is intended to tell you your responsibilities and to introduce you to certain important guardianship issues. If you have questions on how to proceed, consult your attorney before acting. Obtaining an attorney's advice BEFORE you act may avoid more costly legal services later.

 

(2003) This pamphlet is published as a public service by the Colorado Bar Association. Its purpose is to inform citizens of their legal rights and obligations and to provide information regarding the legal profession and how it may best serve the community. Changes may have occurred in the law since the time of publication. Before relying on this information, consult an attorney about your individual case.