Imagine that you have just discovered that your father has received several unsolicited emails asking for money and that he has sent almost $500,000 to anonymous offshore bank accounts. Worried for your father, you decide to seek a conservatorship to protect his assets.
These are the facts that started the dispute resulting in a recent Colorado Court of Appeals case, In re Neher, 2015 COA 103 (July 30, 2015).
At the hearing, there was no medical evidence presented, but rather, expert testimony from a CPA. The Court ruled in favor of son and his father appealed. The father’s primary argument on appeal was that Colorado’s conservatorship statute requires medical evidence before a court can determine whether a conservator is necessary.
Colorado’s conservatorship statute provides that a petitioner must prove by clear and convincing evidence that the individual is unable to manage his property and business affairs because they cannot effectively receive and evaluate related information. In addition, a petitioner must prove, by a preponderance of the evidence, that the individual has assets that will be wasted or dissipated unless management is provided and that protection is necessary.
The Court of Appeals denied the father’s appeal and held that medical evidence is not required evidence in a proceeding requesting appointment of a conservator. The Court of Appeals considered the following in reaching the decision:
- The language of the statute does not expressly require expert testimony like other statutes in Colorado.
- The language of the statute does not require that a petitioner show the causes of the individual’s inability to effectively receive or evaluate information.
- The Court’s interpretation is consistent with other conservatorship statutes.
- To determine legislative intent, the Court compared the Colorado statute to the Uniform Probate Code and specifically identified that the Colorado statute did not contain the language “an impairment” like the Uniform Probate Code.
The Court of Appeals rejected the father’s arguments that the judicial department forms regarding the appointment of a conservator and the termination of a conservatorship contain references to a physician’s letter or professional evaluation. The Court of Appeals also rejected the father’s out of state case citations as unpersuasive.
Litigation in the area of conservatorships is continuing to grow and this case provides important guidance for the interpretation of the Colorado standard for the appointment of a conservator.