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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 orconservatorship 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 competentindividual, selecting another individual (referred to as an “agent”), with the authority to manageall or some of a person’s medical or financial affairs should that individual becomeincapacitated.
  • Incapacitated Person – in Colorado this is defined as “an individual who is unable to effectivelyreceive or evaluate information or make or communicate decisions to such an extent that theindividual 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 forthose 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. Acourt 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 calledthe “protected person.”

In the absence of planning, and when the individual is too ill or no longer competent to name an agentto help manage financial and medical affairs, court intervention such as a guardianship or aconservatorship may be necessary. Other times a guardianship or conservatorship may be necessarywhen there are conflicts between agents, when there are concerns that an agent for someone isinappropriately influencing the incapacitated person, or in the case of a true emergency where a courtappointed 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 areinterested 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 free initialconsultation.