Another Step in Guardianship Oversight

New law is intended to increase transparency of appointment process, advocates say

An 8th Circuit Court of Appeals ruling held up a lower court’s award of $106 million in a decades-long case involving bad actors and a bank's involvement in a Ponzi-like scheme.

Laws regulating guardianship for adults are difficult to understand even for people involved in Colorado’s guardianship system and have also been vulnerable to misuse by bad actors. State action to protect people’s rights and increase process transparency has increased incrementally through the years. On July 10 Gov. Jared Polis signed a bill that advocates say will make a significant step toward protecting the rights of at-risk adults who may have an emergency guardian or special conservator appointed.

Once someone files a petition to have a guardian appointed for a vulnerable adult, a court-chosen visitor is supposed to evaluate the person’s capacity in order to determine the needs for guardianship. Senate Bill 129 codifies a process once a petition for an emergency guardian or special conservator is filed, requiring the visitor to interview the adult and members of their community. 

The visitor must report on any engagement in supported decision-making for the person by family and community members. They then have to make recommendations about whether the emergency guardianship or special conservatorship is necessary and what the scope should be. In situations when a court appoints an emergency guardian or conservator without notice to the adult, the legislation requires a court visitor to prepare their report within 14 days. 

 According to advocate and former state Senator Rob Hernandez, the state has had a need for increased protection from abuse of the guardianship system for vulnerable adults and those close to them for years. He has learned of situations where judges have granted petitions filed by Adult Protective Services for emergency guardians or conservators without an investigation or notice to the person. At the other extreme, he also has learned of situations where guardianship petitions have lingered for long periods of time without a judge’s review.

“It takes a while before you can really get the legislature focused in on something like this to where they have a level of consciousness and awareness that this is really happening,” Hernandez said. The protections created by Senate Bill 129 put it at “the top of the list of [what] needed to be done.”

Senate Minority Leader Chris Holbert was a prime sponsor of the bill. He was unavailable for comment, and his staff told Law Week he defers to Hernandez to speak for the bill.

Guardianship is intended for adults who for some reason don’t have capacity to make legal decisions for themselves. That can include people with intellectual or developmental disabilities, elderly people who have declined cognitively or sometimes people with substance use issues. A court-appointed guardian can make decisions about the person’s finances, medical care and where they live. In an ideal situation, a court appoints a close family member or friend as a guardian, and the decision-making authority the guardian has should be designed for the adult to keep as much of their independence as possible.

But, not every adult in one of those circumstances needs a guardian or conservator. For example, people with disabilities may still have the capacity to make their own decisions and can get help from their friends and family with decisions when needed. Or, poor decision-making by a person with substance addiction doesn’t mean they don’t have control over those decisions. 

In reality, guardianship systems don’t always take this type of nuance of a person’s needs into account. Courts tend to grant full guardianships rather than more limited arrangements tailored to the specific person, and the terms of a guardianship aren’t necessarily revisited to adjust if a person’s capacity has changed.

The CBA also had a key role in drafting Senate Bill 129’s drafting. Letty Maxfield, a member of the CBA and a partner at Trust & Estate Advocates, said members of the bar’s elder law section do a lot of guardianship and conservatorship work, as well as contracting with the court system as court-appointed counsel. 

CBA Executive Director Amy Larson added the bar’s involvement in guardianship legislation dates back several years, including a 2016 bill that allows physicians to make medical decisions for unrepresented patients in some circumstances. The CBA played a “convener” role to facilitate discussions and negotiations between stakeholders throughout the summer in 2019, including members of the judiciary and activists such as Hernandez and Maureen Welch, another advocate who has worked to hold Colorado’s guardianship systems accountable to transparency. 

“It’s year-over-year efforts and conversations and coalitions, and … when you get stuck, how do you move the ball forward? And that’s where the bar has been very, very present, even before we get into details of bills,” Larson said. “ How can we bring disparate views into the room to begin to untie the knot, especially when we get stuck?”

Senate Bill 129 survived the last few weeks of the legislative session, which saw other pending bills – even others with bipartisan support and no state cost – die en masse. Hernandez said he believes the bill got through because it had the right combination of circumstances, including the fact that it had already passed the Senate with broad support before the two-month break and that it didn’t call for any state money.

“Maureen and I burned through a lot of political capital to make sure that happened,” Hernandez said, including meeting with Polis’ office to solidify his support.

Not every aspect of regulating guardianship falls in the CBA’s purview, but Maxfield said the bar association has a goal to produce a plain-language guide that explains existing guardianship and conservatorship laws. She said it would be intended to help petition respondents and those close to them understand their rights, know how to find legal representation and communicate with other involved parties, such as the judiciary and court-appointed attorneys.

“We’ve seen over the years that a lot of the reform efforts have been [attempts] to just pass another law, because people are feeling like the system’s not doing what it’s supposed to, even though that’s what the law already says,” Maxfield said. “I think there’s a missing educational component where the judiciary and the attorneys and just average everyday people don’t really understand how the system works.”

—Julia Cardi

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