Conservatorship and Guardianship
Often, an individual loses the ability to make health care and financial decisions for themselves. If the incapacitated individual did not make provisions in advance to provide for this possibility, through the preparation of a power of attorney it often becomes necessary to have a court intervene and appoint someone to make decisions for the individual who cannot make decisions for themselves. These types of proceedings are referred to in Colorado as a conservatorship and a guardianship proceeding.
A conservator is an individual or entity (ofter a bank trust department) who handles the financial affairs of the incapacitated individual. This involves bill paying, investment management, applying for public benefits, if a appropriate, and any other imaginable financial decision. As a conservator it is necessary to file annual reports with the court which has appointed the conservator.
A guardian is an individual (rarely an entity,such as a bank trust department) appointed by a court to make the health care decisions of the incapacitated person. The guardian makes decisions involving the living arrangements of the incapacitated individual, the medical decisions presented by an attending physician, monitors medications and many other health care decisions.
Genrally, both a conservator and a guardian are appointed in a single court proceeding, but incapacitated individuals do not always need to have both a guardian and a conservator. For instance, an individual may need assistance through a conservator appointment to pay bills or locate a facility in which to live, but may be able to make his or her medical decisions. Courts are supposed to give a conservator and/or a guardian the power (and control) over the incapacitated individual which are the least restrictive, leaving the incapacitated person as much control over their life as possible.
Also, it is not necessary to have the same individual acting in both the capacity as a guardian and a conservator. It may make sense to have someone with a medical background (say a child, relative, or friend who is a nurse) act as the guardian, while a different person (such as an accountant) acts as the conservator.
The proceedings usually are not contested and fairly straight forward. A Petition is filed with the court by the person (usually) who wants to be appointed to act as the conservator or guardian. The court will appoint a "visitor" who will visit the alleged incapacitated person and report back to the court on the appropriateness of any appointment. Such proceedings may turn "contested" when two persons (most often siblings) want to act in a single capacity as a conservator or a guardian. Such proceedings may turn contentioius and emotional and are to be avoided if possible. Mediation of the dispute is often a helpful to resolve some of the conflict in determing who is help the incapacitated person.