Bill Clears a Path to Public Guardianship Program

House Bill 1045 would help relieve the Office of Public Guardianship Commission’s fundraising woes, but shrink its pilot program

For nearly two years, a state program to provide guardianship services for at-risk adults has been stalled by fundraising hurdles. A bill nearing the governor’s desk is poised to lower those hurdles, albeit with caveats.

In 2017, the Colorado General Assembly created a pilot program for the Colorado Office of Public Guardianship, which would serve at-risk adults in Denver and rural judicial districts. After collecting a few years of data, the office would submit a report to the legislature weighing whether a statewide program would be fiscally viable.

The bill also established a commission of volunteers that would help set up the office. But before the commission could take any meaningful action, including hiring someone to direct the office, it had to raise all of its own money to fund the first year of operation.

Of the $1.7 million the legislature required the Office of Public Guardianship Commission to raise through gifts, grants and donations, its handful of members has only raised about $2,000 to date.

On April 22, the Senate Judiciary Committee unanimously approved a bipartisan bill that would make the office’s fundraising obstacles more surmountable. House Bill 1045 would help fund the pilot program by raising probate filing fees by about 20% starting in July. It would also appropriate $427,000 from the state’s general fund toward the program.

HB 1045 extends the deadline for the pilot program report from June 30, 2021 to the end of 2023. But the bill also narrows the pilot program to Denver, whereas it originally was slated to include the 7th Judicial District (which includes Gunnison and Montrose counties) and the 16th Judicial District (which includes Bent County).

‘Despite Initial Optimism …’

Through the office, Colorado would provide guardians to incapacitated adults, like those suffering from dementia or traumatic head injuries, who lack friends or family to make decisions on their behalf. While some of these “unbefriended” patients might be able to afford private guardians, many lack the assets to pay for those services. As a result, the state’s health care systems and law enforcement are often at a loss for what to do with these at-risk adults.

“Without representation, many of these citizens are more or less warehoused for months or even years at a time in hospitals and jails — probably the two most restrictive, and frankly dangerous, places they could be,” Deb Bennett-Woods, chair of the Office of Public Guardianship Commission, told the Senate Judiciary Committee. “They are also the two most expensive places for these vulnerable citizens to be held.”

A public guardianship program would help fill that gap, but while Colorado is among at least 45 states with public guardianship statutes, its program cannot provide services yet. Proponents say the public guardians would help the state save money on Medicaid, Adult Protective Services and law enforcement.

Carl Glatstein, former chair of the Colorado Bar Association’s Elder Law section, testified in support of HB 1045. Illustrating the need for public guardianship, he recounted a recent case he had at a hospital in which a woman had died and her husband was hospitalized. “He did not realize his spouse had expired, and this was the day after Thanksgiving. He did not get placed until one week ago, because the hospital cannot get social services to petition or take on the responsibility of just doing the social placement.”

The Office of Public Guardianship hasn’t lacked for supportive stakeholders, from hospital associations to the AARP. But “despite initial optimism based on the widespread stakeholder support” for the office’s pilot program, Bennett-Woods said, her commission “found numerous barriers” in fundraising. Stakeholders questioned why it should be left to private donors to fully fund a public program. And to many of them, giving money to the effort seemed too risky; under the state’s gifts, grants and donations rules, if the commission failed to reach its $1.7 million goal, any funds toward that threshold would just go to the state’s general fund and never be used as the donors intended.

“We are not professional grant writers or fundraisers, are operating with no budget, no office, no staff, no state-sponsored telephone number or email,” Bennett-Woods said. “And as a result, we gathered a total of $2,000 in cash donations.”

Democratic bill sponsor Rep. Marc Snyder, himself a trusts and estates lawyer, worked with the CBA and the Colorado Judicial Department toward raising the probate fees to help support the public guardianship program.

“And while there was perhaps a modest amount of grumbling,” Glatstein said, “the reality is that the bar does strongly support this effort.” The fees hadn’t been raised in many years, he added.

Can the Program Do Enough With Less?

Should HB 1045 get Gov. Jared Polis’ signature as expected, it will assuage many of the commission’s concerns about obtaining the funds necessary to launch the pilot program and start serving clients. But restricting the public guardianship study to Denver, at least to start, would limit the data the office can gather from the program, Bennett-Woods told Law Week.

“We already knew that that’s where we were going to see the bulk of the cases in the pilot project. … [But] we won’t learn as much as we would like in the first year,” she said.

Even more concerning, she added, is that the bill would cut the number of public guardians in the program from 10 to four, which is fewer than the commission originally expected would serve Denver. Even if each guardian handles a caseload exceeding the national standard of 20, it would be tricky to maintain a representative sample for the sake of the data. If the guardians take on too many clients with chronic mental issues, for example, it could skew the estimated costs for a full-fledged public guardianship program.

“The range of people we’re going to be serving is huge, and their needs are different,” Bennett-Woods said. “I don’t even know if it’s possible with four guardians to get a representative cross section [of cases].”

Still, HB 1045 would allow the commission to hire a director for the office immediately, launch the project and start collecting data. And it’s possible the program could scale up if it receives more private financial backing over time, Bennett-Woods said.

While the office would have to figure out how to gather reliable data on a much smaller scale, the upside is that every client it serves is someone who would otherwise be receiving no guardianship services, she said.

“Starting somewhere is better than starting nowhere.”

— Doug Chartier

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