In re Estate of Morgan

• Decision Date: 08 March 2007
• Docket Number: No. 06CA0200.,06CA0200.
• Citation: 160 P.3d 356
• Parties: In re the ESTATE OF Sarah MORGAN, Respondent-Appellee, and El Paso County Department of Human Services, Appellant, v. Patricia L. Martin, Appellee.
• Court: Colorado Court of Appeals

160 P.3d 356

In re the ESTATE OF Sarah MORGAN, Respondent-Appellee, and El Paso County Department of Human Services, Appellant, v. Patricia L. Martin, Appellee.

No. 06CA0200.

Colorado Court of Appeals, Div. IV.

March 8, 2007.

Leo L. Finkelstein, Colorado Springs, Colorado, for Respondent-Appellee.

William H. Louis, County Attorney, Andrew C. Gorgey, Chief Deputy County Attorney, Colorado Springs, Colorado, for Appellant.

Patricia L. Martin, Guardian Ad Litem.

Opinion by Judge BERNARD.

The El Paso County Department of Human Services (DHS) appeals the trial court order appointing it as permanent guardian for the ward, Sarah Morgan. We reverse.

I. Background

The following facts are undisputed. Morgan is an adult who lives in El Paso County, Colorado. Gerald A. Kimble, Jr., served as Morgan's guardian ad litem in an earlier dependency and neglect action in which Morgan was the subject child in the legal custody of DHS. In October 2004, when Morgan was twenty years old but still under the jurisdiction of the court pursuant to the dependency and neglect action, Kimble petitioned the trial court for appointment of a guardian for her.

According to Kimble, Morgan had been born with fetal alcohol syndrome and had an IQ of 65. She also had been diagnosed with an attachment disorder, oppositional defiant disorder, and a neurological processing disorder.

In December 2004, the court appointed Eva Mesa as emergency guardian for Morgan. In January 2005, the court extended the emergency guardianship, and in February 2005, the court appointed Mesa as permanent guardian for Morgan.

When it became apparent the guardianship was not satisfactory, Kimble requested a status conference with the court. In June 2005, the court suspended the guardianship until a status conference could be held. At a hearing in August 2005, Mesa verified she no longer wished to serve as permanent guardian for Morgan.

The court found it necessary to appoint a permanent guardian for Morgan because her ability to make appropriate decisions concerning her personal safety was impaired; she had difficulty with abstract reasoning, language comprehension, and the arithmetic necessary for managing her finances; and she was likely to be overwhelmed with the tasks of everyday life. The court determined there was no other person with authority or willingness to act as Morgan's guardian. Morgan, through counsel, indicated she did not want DHS to be her guardian. The court appointed DHS as Morgan's permanent guardian on December 14, 2005.

Kimble has since retired from the practice of law, and attorney Patricia L. Martin has been substituted by court order as guardian ad litem for Morgan.

II. Trial Court's Authority to Appoint Guardian

DHS contends the trial court lacked statutory authority to appoint it as permanent guardian for Morgan. We agree.

Statutory interpretation is a question of law we review de novo. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027 (Colo.2006).

When interpreting a statute, our task is to give effect to the legislature's intent. Colo. Office of Consumer Counsel v. Pub. Utils. Comm'n, 42 P.3d 23 (Colo.2002). We look first to the language of the statute, giving words and phrases their plain and ordinary meaning, and we interpret the statute in a way that best effectuates the purpose of the legislative scheme. Harding v. Heritage Health Prods. Co., 98 P.3d 945 (Colo.App.2004). If the plain language of the statute is clear, we need not employ other tools of statutory interpretation. Anderson v. Watson, 953 P.2d 1284 (Colo.1998).

A. Requirements for Appointment of Guardian

To appoint a guardian for an incapacitated person, a court must find, by clear and convincing evidence, the person is incapacitated and the person's needs cannot be met by less restrictive means. Section 15-14-311(1)(a), C.R.S.2006. An "incapacitated person" is defined in § 15-14-102(5), C.R.S. 2006, as

an individual other than a minor, who is unable to effectively receive or evaluate information or both 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.

"`Guardian' means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by the court. The term includes a limited, emergency, and temporary substitute guardian but not a guardian ad litem." Section 15-14-102(4), C.R.S.2006. "A person becomes a guardian of an incapacitated person upon appointment by the court. The guardianship continues until terminated, without regard to the location of the guardian or ward." Section 15-14-301, C.R.S.2006.

A person becomes a guardian of an incapacitated person through a procedure set forth in §§ 15-14-304 to 15-14-311, C.R.S. 2006. In short, a person interested in the welfare of the ward files a petition with the court; the court orders a professional evaluation of the ward; and the court holds a hearing and appoints a guardian, considering a list of priorities.

The guardianship statutes indicate DHS could be appointed as a guardian of an incapacitated person. The priorities for who may be guardian are listed in § 15-14-310(1), C.R.S.2006:

(a) A guardian, other than a temporary or emergency guardian, currently acting for the respondent in this state or elsewhere;

(b) A person nominated as guardian by the respondent, including the respondent's specific nomination of a guardian made in a durable power of attorney;

(c) An agent appointed by the respondent under a medical durable power of attorney pursuant to section 15-14-506; (d) An agent appointed by the respondent under a general durable power of attorney;

(e) The spouse of the respondent or a person nominated by will or other signed writing of a deceased spouse;

(f) An adult child of the respondent;

(g) A parent of the respondent or an individual nominated by will or other signed writing of a deceased parent; and

(h) An adult with whom the respondent has resided for more than six months immediately before the filing of the petition.

Section 15-14-310(1) states a court "in appointing a guardian shall consider persons otherwise qualified in the following order of priority." Section 15-14-310(3), C.R.S.2006, states a court, "for good cause shown, may decline to appoint a person having priority and appoint a person having a lower priority or no priority." A "person" is defined in § 15-14-102(10), C.R.S.2006, to include, "government, governmental subdivision [or] agency." Thus, a court has the authority to appoint a governmental agency that does not appear on the priority list in § 15-14-310(1)(a) as a guardian.

This conclusion is reinforced by a comment to § 310 of the Uniform Guardianship and Protective Proceedings Act (1982 & 1997). Section 15-14-310 mirrors § 310 of the Act. Because of this similarity, we are guided by the comments to that section in construing its meaning. See In re Marriage of Hillstrom, 126 P.3d 315, 320 (Colo.App.2005). The comment to § 310 provides:

A professional guardian, including a public agency or nonprofit corporation, was specifically not given priority for appointment as guardian under this Act as those given priority are limited to individuals with whom the ward has a close relationship. The Committee which drafted the Act recognized the valuable service that a professional guardian, a public agency or nonprofit corporation provides. A professional guardian can still be appointed guardian if no one else with priority is available and willing to serve or if the court, acting in the respondent's best interest, declines to appoint a person having priority.

We conclude Colorado's statutory guardianship scheme contemplates the possibility a court can appoint DHS as a guardian for an incapacitated person. We now turn to the question of whether the scheme provides a basis for forcing DHS to accept such an appointment over its objection.

B. Guardian Who Does Not Consent

DHS argues it did not accept its appointment as permanent guardian for Morgan and therefore, the trial court lacked authority to appoint it to be Morgan's guardian. We agree.

DHS relies on § 15-14-110(1), C.R.S.2006, which provides: "A nominee for guardian, emergency guardian, conservator, or special conservator shall file an acceptance of office with the court." DHS also relies on § 15-14-111, C.R.S.2006, which provides: "By accepting appointment, a guardian or conservator submits personally to the jurisdiction of the court in any proceeding relating to the guardianship or conservatorship."

The verb "to accept" means "to receive with consent . . . assent to the receipt of." Webster's Third New International Dictionary 10 (1976). Here, DHS objected to the appointment, did not consent to it, and, thus, did not accept it.

Guardians of incapacitated persons assume significant duties and powers. Sections 15-14-314, 15-14-315, C.R.S.2006. To order an unwilling person, even a government agency, to assume these obligations without the force of clear and express legislative authorization invites the potential of disservice to the incapacitated person and the prospect of a judicially created, unfunded mandate imposed on the agency.

Here, DHS did not submit to the court's jurisdiction in any proceedings concerning Morgan's...