Guardianship Litigation

A guardian will have legal authority over the incapacitated person’s legal affairs, including authority over the incapacitated person’s placement and living circumstances. A conservator will assume control over the finances of the incapacitated person. A guardianship and conservatorship is a drastic remedy that removes decision making authority from the incapacitated persona and removes control that the individual previously had over the their assets.

A relative or close friend can usually be appointed as guardian by the Colorado probate court in the county where the senior is living.

In some instances, the senior may contest the guardianship, in which case a contested guardianship hearing may be held to determine whether the senior is capable of managing his or her own affairs. In other instances, particularly in the case of affluent seniors, more than one family member may petition for the guardian role. In such cases a contested guardianship hearing would be held to determine who can best serve as guardian.

In cases where someone has stolen from the incapacitated senior, whether directly or through the abuse of a power of attorney or jointly titled accounts, a guardianship can be used to attempt to recover the stolen assets, using the power of the judicial system. In these situations, the person abusing the power of attorney or otherwising abusing a position of trust will also have used undue influence to cause the senior’s estate plan to be changed. A guardianship case can be a good tool to gather evidence regarding the undue influence that may have been used to alter the estate plan. The conservatorship may also be used to restore original beneficiary designations on financial accounts or otherwise restore the situation to that before the undue influencer was at work. In other more severe cases of elder abuse, including physical harm to the senior, emergency guardianships can be used to remove the senior from an unsafe situation. The guardianship can be a useful tool in such situations where the senior is in denial of the abuse and is unable to keep themselves safe from harm.