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Power of Attorney vs. Guardianship – What Are They and Why Do You Need Them?

On Behalf of | Jun 28, 2022 | Estate Planning News

Question – “I’ve been designated as an individuals’ power of attorney. Do I need a guardianship or conservatorship from the Court?” To answer this question, let’s first define a few terms:

  • Power of Attorney – is a document that is signed, witnessed and notarized by a competent individual, selecting another individual (referred to as an “agent”), with the authority to manage all or some of a person’s medical or financial affairs should that individual become incapacitated.
  • Incapacitated Person – in Colorado this is defined as “an individual who is unable to effectively receive or evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care even with appropriate and reasonably available technological assistance.”

Guardianships and conservatorships for adults are established through a Colorado probate court for those incapacitated individuals who need a representative or agent to assist them in making personal, medical, or financial decisions.

  • A Guardian – is responsible for that incapacitated individual’s safety, medical, and personal care.
  • A Conservator is responsible for the incapacitated individual’s estate and financial affairs. A court proceeding to seek the appointment of a guardian or conservator is referred to as a “protective proceeding” and the individual for whom a conservator has been appointed is called the “protected person.”

In the absence of planning, and when the individual is too ill or no longer competent to name an agent to help manage financial and medical affairs, court intervention such as a guardianship or a conservatorship may be necessary. Other times a guardianship or conservatorship may be necessary when there are conflicts between agents, when there are concerns that an agent for someone is inappropriately influencing the incapacitated person, or in the case of a true emergency where a court appointed guardian or conservator is the only way to get a decision made.

If you need to obtain a guardianship or conservatorship for an incapacitated individual, or if you are interested in obtaining a durable power of attorney, please contact Anne McMichael([email protected]) or Jill Curry ([email protected]) or call us at 303-572-4200 for a reduced-rate consultation.