The Office of Public Guardianship monthly meeting on Aug. 26 showed the pilot office at a crossroads in structuring its operations.
The OPG has run into delays in getting appointed as guardian for incapacitated adults because of uncertainty over whether the office should file the petitions, nominating itself as guardian. The petition filing costs have also delayed the appointment process because of ambiguity regarding whether the OPG or the petitioning party should pay the fees.
The OPG is designed to provide guardianship for at-risk adults, such as people with disabilities or people who have declined cognitively, who need someone to make legal decisions for them but whose family or friends can’t serve as guardian or afford a privately appointed guardian. The office currently comprises Executive Director Sophia Alvarez, four guardians and a support staff member, all overseen by a five-member commission. The Colorado legislature will review the OPG in 2023 to determine whether the office will continue operating.
The guardianship petitioning and appointment process goes through Denver’s probate court. As of Wednesday’s meeting, the OPG has been appointed as guardian for two people, known as wards.
Commissioners and Alvarez spent much of Wednesday’s meeting discussing whether the OPG can file guardianship petitions and nominate itself as the person’s guardian.
Alvarez told the commissioners that she believes the statute creating the OPG allows the office to file petitions, but she has concerns about an appearance of conflict of interest because guardianship limits people’s and the office would be asking the probate court to appoint its own guardians to control the potential wards’ decision making.
An ideal system of guardianship is intended to allow at-risk people to maintain as much of their independent decision-making ability as possible.
“I feel like it’s a bit self-serving, and I feel like it’s a bit unethical as a state agency to be taking people’s rights away, even if I look at a referral” and believe it’s an appropriate case for the OPG to take on, she said. “I’d rather separate that role of serving as a guardian versus being the petitioning party.”
And because the OPG doesn’t operate to a make a profit, the office doesn’t have a financial interest in nominating itself.
The OPG’s limited resources present the more significant concern about the office acting as petitioner, Zinn said. Alvarez brought up at the meeting and also previously discussed with Law Week pushback from parties requesting the OPG serve as guardian over who should foot the filing fees. But Alvarez said during the meeting she doesn’t want to set a precedent of the OPG paying the fees in case there comes a point when the office doesn’t have the funds to do so.
“It’s a little frustrating that we have entities out there that want to utilize the system that are unwilling to even put forward $200 towards a filing fee,” Zinn said.
Commissioner Marco Chayet said the OPG should have a clear policy on whether the office will file petitions. He added people and organizations requesting the OPG to serve as guardian should file the petitions unless individual circumstances in a case merit the OPG filing the guardianship petition. Given that the OPG has 14 petitions filed nominating the office as of Wednesday, Chayet asked Alvarez whether she ran into pushback from the requesters about the filings.
“It seems like we have a good sample size of folks. … We have 14 petitioners here. And so maybe the answer is to figure out in what circumstances that are well defined, would we be willing to act as a petitioner,” Chayet said.
Alvarez said in those instances, she was able to connect the parties such as hospitals and the VA requesting the OPG serve as guardian with outside counsel, such as from the Medical Legal Partnership to be the filers.
The commissioners ultimately decided at their meeting to defer to Alvarez’ position of not acting as petition filers for the time being. However, in voicing her support, commissioner Deb Bennett-Woods said the OPG should keep detailed records of guardianship cases it declines to take in which the office’s position of not serving as petitioner prevents the petition from getting filed.
“If we take the position that as a pilot project we can’t do that, we need to be able to … demonstrate what the impact of that decision was” when the OPG’s pilot period sunsets and the office is up for evaluation and renewal by the legislature, she said.