In re the Interest of Louis "Barney" ARGUELLO, Protected Person, and the Arc of Pueblo, Respondents-Appellees,
Fe Ana BALSICK and Colorado Bluesky Enterprises, Inc., Petitioners-Appellants.
Modified February 21, 2019
County District Court No. 16PR215, Honorable Allison P.
L. McMillan, BuxmanKwitek, P.C., Pueblo, Colorado, for
Melinda Badgley, Guardian Ad Litem
J. Ballas, Pueblo, Colorado, for Respondents-Appellees
This is an adult guardianship appointment case where a
prospective guardian, Fe Ana Balsick, and her employer,
Colorado Bluesky Enterprises, Inc., appeal the district
courts 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 courts order and remand for further
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.
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
Petitioner McAuliff initially nominated Ms. Balsick as sole
guardian and later nominated Mr. Arguellos 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. Arguellos co-guardians. They
both live in Denver and planned to move Mr. Arguello to
Denver if appointed.
The court appointed court visitor Julie Thompson-Polk to
prepare a visitors 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. Balsicks 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.
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. Arguellos 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. Arguellos 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. Balsicks appointment because she could
potentially be required to choose between Mr. Arguellos best
interests and those of her employer, Bluesky.
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.
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. Arguellos]
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.
The Court Did Not Abuse Its Discretion in Refusing to Appoint
Ms. Balsick as Guardian
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 courts 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. Arguellos 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).
The conflict issue first arose in the visitors report. Ms.
Thompson-Volk noted that Bluesky provides Mr. Arguello with
case management services under Colorados 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 Respondents service
providers during the service plan meeting," and that,
"in theory, [she] could change the Respondents 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. Arguellos
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." ...