Are you or someone you know under an adult guardianship? Has the situation changed from the time the guardianship was created? Are you or the person under guardianship now able to make their own healthcare decisions? Should the guardianship be terminated? Can the guardianship be terminated? Before we get to how to terminate a guardianship, let’s briefly look at the requirements to create a guardianship.
Guardianships are established for adult persons, also known as a Ward, who are deemed incapacitated; meaning the Ward is found to be unable to make decisions about their day to day healthcare, safety or living arrangements, because they are effectively unable to receive or evaluate information or are unable to communicate decisions, even with the use of technological assistance. Please remember, Guardianships are only for making decisions for the person themselves on day to day decision for health, safety and welfare. A guardianship has nothing to do with finances or money, those decisions require a Conservatorship. Once the Court has found by clear and convincing evidence a person is incapacitated and unable to effectively make their own medical decisions, a Guardian is appointed to make these day to day healthcare and living decisions for the Ward.
So you might be asking yourself, once a court appoints a Guardian, can the Guardianship ever be terminated? Yes, there are two methods. The first is at the death of the ward. If the person for whom the guardianship is no longer living, then the Guardianship is no longer necessary. Any and all authority the Guardian may have had with respect to the Ward, ends the moment the Ward died. The Guardian has no more authority to act on behalf of the Ward in any capacity, such as making funeral decisions. A Guardian is required to file a Notice of Death and a Final Guardians Report before the Court will formally terminate the Guardianship. The second method of ending a Guardianship is through a Court Order terminating the Guardianship. This can be done when the Ward, the Guardian or any other person interested in the Ward’s well-being files a petition asking the Court to end the guardianship. Typically, this petition is filed because the Ward’s condition has changed to the point where they can now take care of themself and make their own decisions without the help of another. The Court will require a hearing to be held for evidence and typically testimony of the Ward before making a decision on whether or not to terminate the Guardianship.
An example of this is as follows: A 46 year old man, Peter Piper, is riding his motorcycle and is hit by a Ford Truck. Peter is taken to the hospital for his injuries. He is unconscious and does not wake up. Peter has not executed a Medical Power of Attorney giving his wife, Penny Parker, the authority to make medical decisions for him. After several days, the doctors wish to operate to relieve pressure in his skull and potentially transfer him to a specialized trauma center to better assist him with a potential recovery that may occur. Because Peter has not designated an agent to make medical decisions for him when he is unable to communicate medical decisions, Penny is required to file a Petition with the Court to be appointed as his Guardian. After following all the necessary steps to be appointed, including obtaining a doctor’s letter stating the doctor believes Peter is incapacitated and needs a guardian, and a hearing was held before a Judge or Magistrate, who determines there is clear and convincing evidence that Peter needs someone to make medical decisions for him, Penny is appointed as his Guardian. We fast-forward 18 months, and Peter with the help of Penny and various medical professionals has completed extensive therapy, to the point that he is now able to walk, albeit slowly, talk, with minimal struggle, and can make informed decisions. Peter and Penny both believe that he understands the results and consequences of decision-making and would like to be in control of making his own decisions again. Peter completes Colorado’s required JDF form (a judicially approved form) number 852, Petition for Termination of Guardianship, found at www.courts.state.co.us and files it with the Court which has jurisdiction over his guardianship. Typically the Court prefers to have a doctor’s letter attached to the Petition which supports Peter’s claim he is capable of making his own decisions.
After receipt of the Petition, the Court will order a hearing in which all interested parties, including the Ward and Guardian are required to attend. After the hearing, the Court found Peter had in fact recovered from his injuries sustained in the accident and that while he did not move at the same pace in which he did prior to the accident, he was very capable of making his own day to day decisions and understood the choices he was making for medical purposes. The Court then ordered the Guardianship terminated. It is important to note that Guardianships don’t end just because the Ward or Guardian want them to end. There has to be a formal court order, either terminating the Guardianship because the Ward died or recovered sufficiently to start making his/her own medical decisions.