Can facilities in Colorado gain control of patient assets?
Alzheimer Disease, dementia, and other illnesses can steal away the memories of our loved ones and incapacitate them to the point they cannot take care of their own needs and finances. When this happens, if a power of attorney is not in place, families can apply to the courts for the appointment of a guardian and/or conservator. We shared an article on our Facebook page (“Bourrillion & Geiger, LLC on Facebook) regarding nursing care facilities in Delaware applying and receiving guardianship over some of their residents to satisfy the costs of care for those residents. It triggered a concern in many on whether that can happen in Colorado.
A guardian serves to help make decisions about the support, care, education, health and welfare of the “protected person.” Guardians are usually appointed when a person needs help making effective decisions about their own care. Much of the time this happens when the individual is elderly, or suffering from a disease like Alzheimer’s or dementia; or if the individual suffers from some cognitive deficiency – closed brain trauma, diminished I.Q., etc – which affects them making good decisions for their care. It does require that a doctor familiar with the person recommend the need for a guardian.
Under the Colorado Probate Code guardians and conservators can be appointed for individuals who are incapacitated or cannot manage their own care and finances. Specifically, §15-14-310 of the Colorado Revised Statutes states which persons have priority of appointment in these cases and what restrictions exist. Generally, family members seek out these appointments to help elderly parents, aunts, uncles, etc. when their minds start to fade. Barring certain circumstances family allows has priority of appointment as a guardian/conservator.
In addition, to their priority of appointment, family members can also serve in a dual role of guardian and conservator, where a third unrelated party may be barred from appointment to both positions. This is to prevent fraud and to safe guard the person, and their assets. In Colorado an owner, operation, or employee of a long-term care provider where the protected person is receiving care cannot be appointed unless they are related by blood, marriage or adoption. A safeguard that Delaware did not have which lead to facilities getting appointed as guardians and taking all the patient’s assets and money.
For the most part it is usually family who is appointed to these fiduciary positions. However, when there is no family then friends, accountants, other persons familiar with the person or those who accept judicial appointments from the court can serve in that capacity. The biggest problem with an unfamiliar person holding this role is that it can cost the protected person money for their services whereas family and/or friends will usually not charge for their time.
The purpose of the probate code is to protect the elderly, incapacitated and deceased. When a state fails to keep up with the times or give a hard look for loopholes in their laws it can be devastating to persons in this position. If you have any questions, you can always contact an attorney for advice.
Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com