Appointment Guidelines for Guardians ad Litem (undated)
Conservator and Guardian Fees
E-Filing: Best Practices
Mandatory e-Filing (May 31, 2003) To view all orders regarding E-filing, you can view Efile_Orders.pdf
Motions to Withdraw and Substitution of Counsel
Prior Law Clerk Representation Before the Court
Restricted Access to Certain Court File(s)
Returns of Service
Requests for Court Documentation
This document defines the role of a guardian ad litem in the Denver Probate Court. The label "disabled person" encompasses protected persons, incapacitated persons, and minors.
Role and Responsibilities.
(1) A guardian ad litem is . . . a special fiduciary appointed by the court to represent and protect the interest of a minor, an allegedly incapacitated person, or a person to be protected.
(2) A guardian ad litem shall diligently take such steps as he deems necessary under the circumstances to represent and protect the interest of the person for whom he was appointed.
The common law supplements these guidelines; it adds restrictions and imposes duties.
First, the guardian ad litem's representation of the disabled person is limited to the matter in which the Court appointed the guardian ad litem.
Second, the Court is the ultimate protector of disabled persons; the guardian ad litem facilitates the Court's efforts in this regard. The guardian ad litem is an officer of the Court who reports to the Court and carries out its directions. The guardian ad litem is the Court's unbiased eyes and ears. Without the guardian ad litem’s reports the Court may not be aware of all the facts, as the other parties in the case will be interested primarily in developing those facts which aid their position. It is this disinterested fact-finding function that makes the guardian ad litem invaluable to the administration of justice. The guardian ad litem must be totally unbiased while investigating and reporting the facts.
Third, the guardian ad litem's duties are personal. The guardian ad litem should not delegate any substantial duties to another person without first securing the Court's assent.
Fourth, the guardian ad litem's work product shall generally be available for inspection by all interested parties. In the absence of unusual circumstances, secrecy will not be helpful to the Court in reaching the best result. If circumstances warrant, the Court will appoint an attorney to represent the disabled person, and the attorney will protect the disabled person's privacy interests to the same extent as any other litigant.
Fifth, the guardian ad litem is not the disabled person's attorney. Similarly, the guardian ad litem does not represent the interests of any other person related to or associated with the disabled person. Even if the guardian ad litem concludes that one party in the matter advances a position more in keeping with the disabled person's best interests, the guardian ad litem should not align with that party or appear to align with that party. A guardian ad litem who becomes a litigant in the case loses his or her usefulness to the Court.
Reports. In its Order appointing the guardian ad litem, or in subsequent Orders, the Court may request that the guardian ad litem report to the Court. Unless otherwise ordered by the Court these reports will be made in written form and will be available for review by all interested persons. If the guardian ad litem discovers facts which he or she believes should be brought to the immediate attention of the Court, the guardian ad litem should file an immediate report even if the Court has not ordered or requested one.
Evidence. The Court will consider the guardian ad litem's reports as ordinary documentary evidence in connection with the Court's management of the case. If the report of a guardian ad litem is used as evidence during a Court hearing it may be subject to objections and cross-examination as other evidence.
Compensation. Where appropriate, the Court will order the conservator or guardian of the disabled person to pay guardian ad litem fees to the guardian at a rate set by the Court. For disabled persons whose financial resources falls below the poverty level defined by the Colorado Supreme Court, the State will pay the guardian ad litem at a special rate. Whether paid from the disabled person's own resources or by the State, the Court recognizes the sacrifice made by professionals who accept these appointments and thanks guardians ad litem in advance for accepting the allowed fees and performing this valuable public service.
Court staff is often asked, "What is an appropriate rate to charge for services as guardian and conservator?" An appropriate answer is usually something like "It depends on the circumstances."
Here are a few general guidelines:
Family members generally serve without a "fee" although a family member usually keeps a record of out-of-pocket costs and applies for reimbursement.
For persons who are appointed to these fiduciary positions who expect and are entitled to be paid a fee for services, the rate can range from $15.00 per hour to over a hundred dollars per hour depending on a number of factors, including: the complexity of the service provided, the amount of responsibility assumed, the outcome or result achieved, time lost from regular employment, rate earned at regular employment, and fees typically charged in the community by similarly skilled persons providing similar services. Conservators and guardians should not expect to charge a fee for time spent in the routine preparation of a fee invoice or a petition for approval of fees. These standards are set out in the Colorado Probate Code and are discussed in Colorado case law.
Professional persons (such as lawyers and accountants), appointed as conservator or guardian, may ordinarily charge their regular hourly rate only for services provided in their professional capacity. For example, an attorney may charge his or her regular billing rate for drafting legal documents but not for attending a care conference or balancing a checkbook. Keeping in mind the factors set forth above, the attorney would either reduce his or her regular billing rate to the "market rate" or, if appropriate, delegate the tasks to his or her clerical or bookkeeping staff or hire another person to provide the service at the "market rate."
The Court's primary interest in overseeing protective proceedings is to insure that the protected/incapacitated person receives appropriate care and protection over the balance of his or her life at reasonable, competitive market costs. The Court is not interested in spending the least amount possible, but is also not willing to allow a fiduciary to spend more than is realistically necessary on services that could be provided under the circumstances for a lesser amount.
Colorado Registered Attorneys: Electronic filing is mandatory in the Denver Probate Court effective July 1, 2003 (except in sealed cases). If you chose not to e-file, court staff will e-file your document(s) for you for $50 per filing.
To be temporarily added to an existing case, please call the E-Filing Specialist at 720-865-8333. Include the case name and number, your name, attorney bar number, and your client’s name, address and phone number. You will be given 30 days access to the case. To enter your appearance in an existing case, please e-file an Entry of Appearance.
For questions about e-filing, please contact ICCES Support at firstname.lastname@example.org or 1-855-264-2237 or 720-625-5670.
Decedents’ Estates. According to C.R.S.15-12-516, the original will must be filed with the court within 10 days from the date of death. Meanwhile, a scanned copy of the will should be filed with the Application or Petition for Probate. You must include the decedent’s name as a Party (Party Type = Decedent). Associate yourself to your client’s name, not the decedent’s name.
If there is more than one codicil, include the most recent codicil’s date on the additional information tab. List other codicil dates in the Title section.
Letters. Submit a cover with your request for letters as a separate filing type, specifying the number of letters needed and whether you would like them mailed or left in “will-call”. You must submit proposed letters in editable format. The fee for letters is $20.00 plus $.75 per page plus postage.
Rejected Documents. Documents may be rejected if they are incomplete. The reviewing clerk will always include a comment explaining why the document was rejected. Read the comment at the end of Rejected Documents link.
When the date or time of filing of an electronic document is in issue in a case, the earliest date and time the pleading or other document was electronically filed by counsel is presumed to control without regard to rejection of a document by a court clerk.
Parties without Attorneys (Pro Se Parties): Parties who are not represented by an attorney shall continue to file documents in the traditional paper format in person or by mail. The Court does not accept fax filings. The Clerk of Court will scan and upload these documents to the eFile system.
Effective July 1, 2003, the following guidelines shall apply to all Denver Probate Court cases, except mental health cases:
1) Attorneys shall file with the Denver Probate Court all pleadings and other documents using the LexisNexis CourtLink eFile service. Counsel should refer to the electronic filing rules set forth at C.R.C.P. 121 §1-26.
2) Parties who are not represented by an attorney shall continue to file documents in the traditional paper format. The Clerk of Court will scan and upload these documents to the LexisNexis CourtLink eFile service.
The LexisNexis CourtLink web site, http://www.courtlink.com, provides information regarding computer requirements, fees, service of documents, and training opportunities. LexisNexis CourtLink customer service representatives may be contacted at (720) 904-3340 for technical assistance and to schedule free training.
To view all orders regarding E-filing, you can view Efile_Orders.pdf
A list of current filing fees and other costs can be found here: http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=176
In order to protect the integrity of the Court's File/S, minimize interruptions to the orderly process of litigation in the Court, provide complete access to public records and information, and conform with the Chief Justice's Directive Concerning The Adoption Of Standard Research Fees, the Probate Court adopts the following policy.
I. Interested parties may review File/S and make telephone inquiries at no charge. Because the Court's primary business is to serve its litigants, Court staff will serve the research demands and attend to the filing and docketing requirements of interested parties first.
II. Attorneys (or their staff) considering representation of a party may review File/S and make telephone inquiries at no charge, subject to confirmation that he or she is requesting the file for the sole purpose of considering representation of a party.
III. Agencies of federal, state, and local governments may review File/S at no charge, but subject to a schedule and procedure which accommodates the needs of the Probate Court and the agency. The Court asks the representatives of agencies seeking to access the Court's records to contact the Clerk of the Probate Court to arrange a mutually satisfactory procedure.
IV. The Court will collect $5.00 per file, or $20.00 per hour, whichever is greater, from commercial searchers.
V. Access to restricted File/S is allowed only according to the restriction Order accompanying the file or upon consent by the Court.
VI. An "interested party" is a party; in a decedent's estate, an heir, devisee, personal representative, special administrator, nominated personal representative or special administrator, or an individual or entity who has filed a claim; in a guardianship case, the persons listed in C.R.S. § 15-14-309; in a conservatorship case, the persons listed in C.R.S. § 15-14-405; in a trust case, a beneficiary, trustee, or nominated trustee. "Interested party" includes persons who have been identified as a potential witness in a pleading. "Interested party" includes members of the media; proof of publication or broadcast will be required. In all cases, "interested party" also includes a guardian or conservator of an interested party, an attorney of record of an interested party, a court-appointed guardian ad litem of an interested party, and the natural parents of an interested party who is a minor.
Revised September 1996
Lost or destroyed wills:
C.R.S. §15-12-402(3) governs the probate of lost, destroyed or otherwise unavailable wills. The Court requires formal proceedings to probate such wills. See C.R.S. §15-12-401 et. seq.
After notice to all interested persons, the following elements must be established to the satisfaction of the Court:
1. That the original was properly executed or qualified as a holographic will. See C.R.S. § 15-11-502.
2. That the decedent did not revoke the will.
3. The contents of the will.
If a photocopy of the missing, fully executed will is available, the elements may be established through affidavit and the matter set on the Court's non-appearance docket. See Colorado Rules of Probate Procedure 8.8.
If a photocopy of the missing, fully executed will is not available, the matter must be set on the Court's appearance docket. If all interested persons consent to the will's admission, the Court may waive a hearing and accept verified statements in lieu of testimony.
Improperly executed wills:
C.R.S. §15-11-503 governs the probate of improperly executed wills. The Court requires formal proceedings to probate such writings. See C.R.S. §15-12-401 et. seq.
After notice to all interested persons, the following element must be established by clear and convincing evidence:
1. That the decedent intended the writing to constitute his or her will.
If the original of the improperly executed writing is unavailable, the following elements must also be established to the satisfaction of the Court:
1. That the decedent did not revoke the will.
2. The contents of the will.
The matter must be set on the Court's appearance docket. If all interested persons consent to the will's admission, the Court may waive a hearing and accept verified statements in lieu of testimony.
Revised Sept. 8, 1997
The Denver Probate Court will consider an attorney's motion to withdraw from representation pursuant to C.R.P.P. 14 and counsel substitutions as described below.
Motions to withdraw must be served on the client and others as may be directed by the Court. Notice to the client must alert the client to the following:
(a) That the attorney wishes to withdraw;
(b) That the court retains jurisdiction;
(c) That the client has the burden of keeping the court informed where notices, pleadings or other papers may be served;
(d) That the client has the obligation to prepare for trial or hire other counsel to prepare for trial when the trial date has been set;
(e) That if the client fails or refuses to meet these burdens, the client may suffer possible default;
(f) Of the dates of any proceedings (list dates and times), including trial, and that holding of such proceedings will not be affected by the withdrawal of counsel;
(g) That service of process may be served upon the client at his last known address; and
(h) Of the client's right to object within 15 days of the date notice is received.
The Court will rule on the motion 18 days after the date of mailing as indicated by the certificate of mailing (3 days for mail time, plus the 15 day window for objections). Objections, if any, must be filed in writing. Neither the moving attorney nor any objectors need to set the matter for a hearing unless directed to do so by the Court.
If Motion is Granted
The Court will issue an Order Granting Withdrawal via Courtlink's Efile service. Attorneys should submit a proposed order. After the Court issues an Order Granting Withdrawal, and except as provided below, the attorney must give notice of the Order to all other counsel of record, persons demanding notice, and such others as the Court may direct. When the withdrawal leaves a personal representative without an attorney, the Court will send the Order and a Notice to all heirs and devisees, alerting them that the estate is no longer represented by counsel.
Substitution of Counsel
Counsel withdrawing from representation in favor of another attorney with the client's consent may file with the Court a Motion for Substitution of Counsel. The Court will rule on the motion without hearing. After a 10-day window during which interested persons may object in writing to the substitution, the Court will issue an Order Granting Substitution of Counsel via Courtlink to the withdrawing attorney, who will be directed to serve a copy of the Order on all interested persons.
Revised April 4, 2003.
The Denver Probate Court hears non-appearance matters at 8:00 a.m., Monday through Friday; however, non-appearance matters are not heard on legal holidays. Please set your non-appearance hearings accordingly. The Colorado Probate Code Form JDF 712 notice sent to interested persons and to the Court is sufficient to set the matter; movants need not contact the division clerks. The responsibility to give notice to both the Court and all of the interested parties of the non-appearance setting rests on the movant. Failure to properly set and give notice of a non-appearance hearing may result in no response from the Court.
RULE 8.8: NON-APPEARANCE HEARINGS
(a) Unless otherwise required by statute, these Rules or order of court, matters that are routine and which are expected to be unopposed may be set for a Non-Appearance Hearing. Such Non-Appearance Hearings shall be conducted as follows:
(1) Attendance at the hearing is not required or expected.
(2) Any interested person wishing to object to the requested action set forth in the motion or petition attached to the notice must file a specific written objection with the court at or before the hearing, and shall furnish a copy of the objection to the person requesting the court order. Form JDF 722 in the Appendix to these Probate Rules may be used and shall be sufficient.
(3) If no objection is filed, the Court may take action on the motion or petition without further notice or hearing.
(4) If any objection is filed, the objecting party shall, within 14 days after filing the objection, set the objection for an Appearance Hearing.
(5) Failure to timely set the objection for an Appearance Hearing as required by section (4) of this rule shall result in the dismissal of the objection with prejudice without further hearing.
(b) The notice of a Non-Appearance Hearing, together with copies of the motion or petition and proposed order must be served on all interested persons no less than 14 days prior to the setting of the hearing and shall include a clear statement of the rules governing such hearings. Form JDF 712 or JDF 963 in the Appendix to these Probate Rules may be used and shall be sufficient. The authorization of this Form shall not prevent the use of another Form consistent with this rule.
Advice to Counsel Re: Non-Appearance Hearings
Because non-appearance hearings are set by you without Court staff involvement, the Notice of Non-Appearance hearing is the only notice we receive of the scheduling of this event. In most cases the matter is brought to the attention of either the Magistrate or the Judge at the appointed date and time. If you have not received an order within 1 week after the non-appearance hearing date, please contact the court.
In most cases, a copy of the order will be transmitted to you electronically.
Policy Revised 3/4/03
Prior Law Clerk Representation Before the Court
The Denver Probate Court is privileged to have been served by a diverse group of law clerks and interns throughout the years who have then reappeared before the Court as successful private practitioners representing clients in matters before the Court. The following is the Denver Probate Court’s policy regarding handling such situations.
Under Canon 3 of the Code of Judicial Conduct, the Denver Probate Court will disclose to all interested parties the identity of a former law clerk or intern at the first opportunity the information becomes apparent to the Court. Because the Court may not see such a circumstance until the case has proceeded along the path of litigation, a former law clerk/intern or the firm where he/she is employed is encouraged to make this disclosure at an early opportunity.
Under Rule 1.12 of the Colorado Rules of Professional Conduct, “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after the disclosure.”
Accordingly, when a law firm who employs a former law clerk/intern of the Denver Probate Court represents a client in a case that was pending at the time the law clerk/intern was employed by the Court, the law firm must (1) disclose and (2) obtain consent to continue the representation or withdraw from the representation.
The Court FINDS that the harm to the privacy of each person in whose interest one of the four special statutory proceedings listed below are brought in the name of the People of the State of Colorado outweighs the public interest in having open access to the related court file in each of those particular cases.
Consequently, pursuant to the authority vested in this Court by Chief Justice Directive 85-16, by Colorado Rule of Civil Procedure Rule 121., Section 1-5, and to implement the provisions of C.R.S. § 27-65-107(7), the Court hereby imposes the following blanket rules for all cases involving matters before the Court pursuant to either:
C.R.S. § 27-65-101 et seq. (Care and Treatment of the Mentally III Act)
C.R.S. § 27-10.5-101 et seq. (Care and Treatment of the Developmentally Disabled Act)
C.R.S. § 25-81-101 et seq. (Alcoholism and Intoxication Treatment Act)
C.R.S. § 25-82-101 et seq. (Drug Abuse Prevention, Education, and Treatment Act)
WHEREFORE, IT IS ORDERED that all records and papers in proceedings under any of the above four statutory provisions shall be separately maintained by the Clerk of the Court, and that access thereto shall be restricted in the following manner:
1. ACTIVE CASE File(s):
a. Only the following persons are permitted free access to the court file(s) for an individual (the "respondent") for whom an active Probate Court case has been initiated and is being maintained pursuant to any of the four statutes specified above:
(1) The respondent
(2) The respondent's court-appointed attorney, or the attorney of record if any
(3) The respondent's court-appointed guardian, if any;
(4) The Assistant City Attorneys in the Mental Health Unit.
Proper identification may be required, at the discretion of the court clerk, before release of the file.
b. The petitioner who initiated proceedings of this kind may be granted access to such a file., at the Court's discretion., and for good cause shown.
c. Access to a restricted file requested by any other person can be allowed for good cause shown only if authorized by Court Order after giving notice and opportunity for hearing to the interested person listed in para. l.a. (above).
2. INACTIVE CASE File(s):
C.R.S. § 27-65-107(7) provides that upon the termination of certifications under the provisions of C.R.S. § 2765-110, the court file and records be sealed until the Court orders them opened for good cause shown.
It is the policy of this Court to accord that same treatment to inactive case file(s) involving any of the other three special statutory proceedings mentioned above.
Therefore, as to any such inactive case file:
a. The former Respondent can have access to the sealed inactive case file by making a written request the Denver Division Clerk, after presenting proper identification.
b. Request made by any other person seeking access to a sealed inactive case filed must be approved by the Judge of the Probate Court., who will open such file only for good cause shown.
IT IS FURTHER ORDERED that this blanket order shall become effective immediately.
Revised January 28, 2007 and November 1, 2007., original Order entered March 14, 1996.
BY THE COURT
C. Jean Stewart
Judge, Probate Court
Statutory citations updated 7/13
Click HERE for a Reference Guide to State Statutes Governing Acccess to Court Records published by the Office of the State Court Administrator.
To preserve a hearing date and time, returns of service for that hearing must be filed at least 48 hours, excluding holidays and weekends, prior to the time of the hearing. Failure to timely file returns of service will cause the hearing to be vacated.
Adopted November 1996
All requests for copies, certifications, authentications and exemplifications of court documents, must be made by mail or in person, and must be pre-paid. Telephone requests will not be accepted.
COPIES . . . . . . . . . . . . . $ 0.75 per page
SEARCH FEE . . . . See "File Research" above
CERTIFICATION . . . . . . . . . . $ 20.00 plus 0.75 per page copy fee
(includes a single and/or group of documents)
AUTHENTICATION . . . . . . . . . $ 20.00 plus 0.75 per page copy fee
(includes a single and/or group of documents)
EXEMPLIFICATION . . . . . . . . . $ 20.00 plus 0.75 per page copy fee
(includes a single and/or group of documents)
Court documentation to be returned by mail will require a stamped, self-addressed envelope. Requests for more than a five-page document will require a larger, self-addressed envelope with proper postage.
If you are unsure of the amount of postage, you may include the stamps inside the envelope, or ask the court to include the postage amount in your check.
In the event you are not sure of the number of pages you are requesting or the proper postage, enclose a check payable to the court and leave the amount on the check blank. Somewhere on the face of the check write: "NOT TO EXCEED $50.00." A receipt for the total amount will be returned with your copies.
If your copy request does not include a case number, a $5.00 search fee will apply per name. An attorney of record may submit such requests via ICCES with the applicable case number.
If you have any further questions, please contact the court at (720) 865-8310 x5.