Additional Background Check for Proposed Conservators and Guardians in Colorado CAPS Checks
A new bi-partisan bill passed by the Colorado Legislature would impose an additional requirement on an individual requesting appointment as a conservator and/or guardian of an at-risk adult beginning January 1, 2022.
The bill, HB21-1123, “CAPS Checks for Substantiated Mistreatment,” would mandate district and probate courts in Colorado to request a CAPS (Colorado Adult Protective Services) check by the state department on the petitioner prior to appointment. The state department would be required to provide the court with information within seven (7) days of the court’s request. This additional background check would determine if a person has been substantiated in an APS case of causing abuse, neglect, exploitation, or harmful act to an at-risk adult.
Currently, in order for a conservator and/or guardian of an at-risk adult to be appointed in Colorado, a name-based criminal history record check from the Colorado Bureau of Investigation (CBI) and a current credit report of the proposed conservator/guardian is to be filed with the court. In addition, a court visitor is appointed to interview the at-risk adult, the petitioner, and the proposed conservator. After the interviews, the court visitor files a report with the court establishing recommendations regarding the appropriateness of a conservatorship in the particular case, potential legal representation for the at-risk adult, and the qualifications of the proposed conservator. These requirements will remain in place if the CAPS check bill is signed into law.
Because APS investigations are private, as the law currently stands, a person could petition the court for appointment of conservatorship and guardianship, and the court may never know that he/she was found by APS to have previously abused or mistreated the individual he or she is now seeking to formally control. This additional CAPS check would improve the vetting process already in place.
If there is a substantiated finding, the state department would be required to provide the court with information regarding the mistreatment, and the court would use its discretion to consider the results and determine the weight of the information and its probative value. Of note, a person who may be appointed as a conservator or guardian of an at-risk adult who knowingly provides inaccurate information to the court for a CAPS check can be charged with a class 1 misdemeanor.
The bill would also require APS to share information on substantiated findings of abuse, neglect, exploitation, and harmful acts with the Department of Regulatory Agencies (DORA) within ten (10) days if the person who caused the mistreatment is a licensed healthcare professional, such as a nurse, doctor, or certified nurse's aide. DORA would then conduct a regulatory investigation.
The bill is currently with Governor Polis awaiting his signature.