This is a picture of my cousin Martin and me at the Centennial Chalk Art Festival last weekend.
The Colorado Court of Appeals recently issued a decision concerning the type of evidence that must be submitted in a conservatorship proceeding. In Colorado, a conservatorship is the tool for managing the finances of a person who is unable to manage his or her property or business affairs because the person is “unable to effectively receive or evaluate information.” Colo. Rev. Stat. § 15-14-401(1)(b)(I). Imposition of a conservatorship on a “protected person” takes away a person’s ability to make their own financial decisions and just as in the case of a guardianship for an incapacitated person, the required evidentiary showing for imposing such restrictions on a person’s autonomy must be made by clear and convincing evidence.
The decision In Re the Interest of Neher v. Neher determined that the conservatorship statute did not require that medical evidence of a person’s inability to manage financial affairs due to an inability to effectively receive or evaluate information be included in the court’s determination. In the Neher case, father had been dissipating many of his assets and a special conservator was appointed. Father opposed the petition brought by his son to impose a conservatorship and so he was appointed counsel by the court to assist him in representation. In Colorado, a respondent in a conservatorship proceeding or an alleged incapacitated person has the right to be represented by counsel. In the Neher decision, the court of appeals made important observations in addition to confirming there is no requirement of medical evidence to support imposition of a conservatorship: the current conservatorship statute does not require expert testimony; nor does it require a petitioner to demonstrate the cause of the respondent’s inability to “effectively receive or evaluate information or both to make or communicate decisions;” the legislature’s removal of “mental illness” in the 2000 amendment to the statute supported the interpretation that medical evidence was not required; and the mere fact that the Colorado State Judicial form for Petition for Conservatorship of an Adult (JDF 876) includes a check box for medical evidence does not mean that such is required.
At this point, I will take a quick detour to explain a little bit about what is the role of respondent’s counsel. A court-appointed attorney is an independent legal advocate who takes part in hearings and proceedings. Contrast this with another role of an attorney in protective proceedings – that of the guardian ad litem. The guardian ad litem acts as the “‘eyes of the court’ to further the best interests of the alleged incapacitated person or respondent in a protective proceeding and serves as independent fact finder and an investigator for the court. In a nutshell, the court appointed respondent’s counsel must subjectively represent the client’s intentions, while the guardian ad litem evaluates (on a more objective level) and advocates for the best interests of the alleged incapacitated person.
Protective proceedings involve the stripping away of a person’s civil rights, and so appointment of counsel or appointment of a guardian ad litem can afford protections to the person who stands to lose their autonomy and can provide more information for the court as to the respondent’s situation, desires and rights. A compelling reason for executing effective durable powers of attorney is to avoid protective proceedings. There are times when financial or medical powers of attorney do not work for their intended purposes, which may require instituting protective proceedings – conservatorship for financial affairs and guardianship for health care decisions and living arrangements, but these instances are relatively rare.
Dementia can threaten an elder’s finances in several ways. Bad financial decisions are of course not always indicative of dementia or other legitimate reasons for a person’s need for protection, but a conservatorship may be warranted to protect the assets of a person whose financial solvency would otherwise be threatened. These threats often come in the forms of scams and other forms of exploitation of elders, but many times it is family members whose “protective” behavior looks strikingly similar in tactics to an abuser who controls another’s behavior through domestic violence. Conservatorships are often pursued simultaneously with guardianship proceedings for an incapacitated person. You can read a chapter from the Colorado Bar Association’s Senior Law Handbook about conservatorships here.
In addition to having the difficult conversation about end-of-life medical wishes and decision-making, I think it is also advisable to have another difficult discussion about financial affairs with a spouse, an elder parent or another family member whose autonomy is or may be threatened by bad financial decision-making and vulnerability to financial exploitation.
I will close this post with a poem about certain uncertainty, in honor of the fall equinox today:
What to hold onto?
Falling leaves a reminder
A season of change.
And the letting go –
What allows the drawing in
Will overtake me.
I must discern leaves
From branches, giving what falls
Willingly, in thanks.
Only ever change –
Love’s mantra, its face yielding
Secrets of the heart.
So I lie still here
Within the deep ground, knowing
What cannot be known.
©Barbara Cashman 2015 www.DenverElderLaw.org