In re the Interest of Louis "Barney" Arguello, protected person, and the Arc of Pueblo, Respondents-Appellees,
Fe Ana Baslick and Colorado Bluesky Enterprises, Inc., Petitioners-Appellants.
County District Court No. 16PR215 Honorable Allison P. Ernst,
L. McMillan, BuxmanKwitek, P.C., Pueblo, Colorado, for
Melinda Badgley, Guardian Ad Litem
William J. Ballas, Pueblo, Colorado, for
ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE
REMANDED WITH DIRECTIONS
1 This is an adult guardianship appointment case where a
prospective guardian, Fe Ana Balsick, and her employer,
Colorado Bluesky Enterprises, Inc., appeal the district
court's order sua sponte appointing the Arc of Pueblo
(ARC) as the permanent guardian for Louis "Barney"
Arguello, the incapacitated person. We are asked to answer a
novel question: Must the district court appoint a court
visitor and follow the statutory vetting procedures outlined
in sections 15-14-304 and -305, C.R.S. 2018, before it can
appoint a guardian for an incapacitated person? We answer
that question "yes." We hold that the court is
required to appoint a visitor for every petition for
guardianship filed and that all prospective guardians must
undergo the statutorily mandated process outlined in sections
15-14-304 and -305 before the court can appoint a guardian.
Because the ARC was not subjected to this statutory vetting
process, we reverse the court's order and remand for
2 Mr. Arguello, an adult resident of Pueblo, suffers from
dementia, developmental disability, and mental health
illness. He has spent most of his life with his parents in
Denver. He moved to Pueblo sixteen years ago with his sister,
Lynn Quintana, after his mother died.
3 Mr. Arguello receives services from Pueblo Community
Resources (PCR), where Nora McAuliff supervises his care. He
lives in a host home with a caregiver he has known for many
years. In 2016, the court appointed Ms. Balsick to be an
emergency guardian when medical decisions needed to be made
and family was unavailable. Soon thereafter, several persons
petitioned the court to be appointed permanent guardian.
4 Petitioner McAuliff initially nominated Ms. Balsick as sole
guardian and later nominated Mr. Arguello's older sister,
Adele Uballe, who lives in Pueblo, to be co-guardian with Ms.
Balsick. Ms. Quintana and her daughter, Tammy Gonzalez, also
petitioned the court to be Mr. Arguello's co-guardians.
They both live in Denver and planned to move Mr. Arguello to
Denver if appointed.
5 The court appointed court visitor Julie Thompson-Polk to
prepare a visitor's report concerning all prospective
guardians, and it set the matter for a hearing. Ms.
Thompson-Polk prepared three reports. The first report
investigated and considered the appointment of Ms. Balsick as
sole guardian. It did not recommend Ms. Balsick's
appointment because of her employment with Bluesky and the
existence of a potential conflict of interest under section
15-13-310(4), C.R.S. 2018 (precluding a long-term care
provider from also serving as a guardian). A first amended
report also investigated and considered the appointment of
Ms. Quintana and Ms. Gonzalez as co-guardians. The amended
report expressed concerns about Mr. Arguello living with Ms.
Quintana and Ms. Gonzalez and being moved to Denver. A second
amended report investigated and considered the proposed
co-guardianship of Ms. Balsick and Ms. Uballe and repeated
the potential conflict concerns about Bluesky and Ms.
6 After several hearings, the court found that Ms. Quintana
and Ms. Gonzalez were not suited to be co-guardians because a
move to Denver would not be in Mr. Arguello's best
interests. As well, the court found that Ms. Uballe would not
be a suitable guardian due to her physical limitations, her
advanced age, and her distant relationship with Mr. Arguello.
Finally, the court found that Ms. Balsick would not be a
suitable guardian because she was employed by Bluesky, which
also served as Mr. Arguello's long-term care provider, as
defined in section 15-13-310(4), C.R.S. 2018, of the Colorado
Uniform Guardianship and Protective Proceedings Act (CUGPPA).
The court concluded that a conflict of interest precluded Ms.
Balsik's appointment because she could potentially be
required to choose between Mr. Arguello's best interests
and those of her employer, Bluesky.
7 Finding no suitable guardian from among the petitioners,
the court sua sponte appointed ARC, for good cause, because
(1) ARC does not provide long-term care or case management
services for individuals and, thus, would have no conflict of
interest; and (2) the court was aware that ARC serves as
guardian for many other individuals with developmental
disabilities in Pueblo County.
8 Bluesky and Ms. Balsick moved for reconsideration,
contending that (1) the court erred in finding that Bluesky
was a long-term care provider as defined by the statute and
(2) ARC was improperly appointed because no petition
nominating it as a guardian had been filed. The court denied
the motion for reconsideration stating, "[e]ven if the
facts of the case do not fall squarely within C.R.S. §
15-14-310(4) [the prohibition against appointment of
employees of long-term care providers], this Court has
jurisdiction to appoint the guardian it believes will best
serve [Mr. Arguello's] interests." The court also
found that it had broad discretion to appoint a guardian and
noted that Bluesky had offered no legal authority requiring
that the guardian be reviewed by a court-appointed visitor.
Court Did Not Abuse Its Discretion in Refusing to Appoint Ms.
Balsick as Guardian
9 Bluesky first contends that it is not a long-term care
provider under the statute and that PCR serves that role for
Mr. Arguello. It reasons that because it provides case
management services, not prohibited under section
15-14-310(4), the court legally erred in applying the
statutory prohibition to Ms. Balsick. Bluesky further argues
that the court's ruling effectively gives ARC a monopoly
on professional guardian services in Pueblo. Because we
conclude that the court acted within its discretion in
finding that Mr. Arguello's best interests would not be
served by appointing Ms. Balsick, given the potential for a
conflict to arise, we need not decide whether Bluesky is a
long-term care provider under section 15-14-310(4).
10 The conflict issue first arose in the visitor's
report. Ms. Thompson-Volk noted that Bluesky provides Mr.
Arguello with case management services under Colorado's
comprehensive services DD waiver, and she opined that this
implicated the prohibitions listed in section 15-14-310(4)
and (5). She noted that Ms. Balsick, as guardian, "would
have the duty and obligation to select the Respondent's
service providers during the service plan meeting," and
that, "in theory, [she] could change the
Respondent's service provide[r] so [that] [Bluesky] would
provide additional services to the Respondent." Ms.
Thompson-Volk further noted that the guardian would
participate in Mr. Arguello's annual Supports Intensity
Scale Assessment, used to determine his funding level, and
that Bluesky, acting through Ms. Balsick, could theoretically
"generate additional income for itself." Finally,
Ms. Thompson-Volk noted that the DD waiver required Bluesky
to investigate mistreatment allegations, and she questioned
whether appointing a Bluesky employee as guardian was in Mr.
Arguello's best interests.
11 At the hearing, petitioner McAuliff was asked to explain
Bluesky's role in Mr. Arguello's life. She testified
that Mr. Arguello has a Bluesky service coordinator whose
function is to "monitor the services that we, as an
agency [PCR] provided, as well as coordinat[e] his
services." She agreed that Bluesky provides case
management services, and that she is "subject to
supervision from [Bluesky] as to how those services [were]
being followed." She further explained that the Bluesky
coordinator is involved in the annual staffing to determine
who will provide what services for the coming year.
12 Ms. Balsick testified that Bluesky's service
coordinator is paid by Medicaid, while she, as Bluesky's
guardianship coordinator, is paid through a grant. She
admitted that she receives her salary and benefits from
Bluesky, and that she is "treated the same as any
employee of [Bluesky]." Ms. Balsick agreed that Bluesky
provides Mr. Arguello with case management services which
assist eligible individuals to "gain access to needed
medical, social, educational and other services." She
also testified the same person cannot be both the service
coordinator and the guardian of the same individual at
Bluesky, but ...