In re Arguello

          Pueblo County District Court No. 16PR215 Honorable Allison P. Ernst, Judge

          Linda L. McMillan, BuxmanKwitek, P.C., Pueblo, Colorado, for Petitioners-Appellants

          Melinda Badgley, Guardian Ad Litem

          William J. Ballas, Pueblo, Colorado, for Respondents-Appellees

          ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

          FREYRE JUDGE

         ¶ 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 further proceedings.

         I. Background

         ¶ 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.^[1] 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. Balsick.

         ¶ 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.

         II. The 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).

         A. Additional Facts

         ¶ 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 ...