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

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
(mcmichael@ccrjlaw.com) or Jill Curry (curry@ccrjlaw.com) or call us at 303-572-4200 for a free initial
consultation.

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