of Arguello ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 7, 2019
2019COA20
No. 18CA0548, Interest of Arguello — Probate — Persons Under
Disability — Guardianship of Incapacitated Person — Judicial
Appointment of Guardian
In this adult guardianship case, a division of the court of
appeals holds, as a matter of first impression, that all prospective
guardians must undergo the statutory vetting process set forth in
sections 15-14-304 and 15-14-305, C.R.S. 2018, before
appointment may occur. The division concludes that the trial court
erred in sua sponte appointing a guardian who did not go through
this process. The division further concludes that the trial court did
not abuse its discretion in rejecting a proposed guardian based on a
potential conflict of interest between the proposed guardian and her
employer and, therefore, does not address whether the proposed
guardian has a statutory conflict of interest precluding her
appointment under section 15-14-310(4) and (5), C.R.S. 2018. The
division affirms in part, reverses in part, and remands for further
proceedings under sections 15-14-304 and -305.
The dissent concludes that section 15-14-310(4) and (5)
provides the only basis for denying guardianship based on a conflict
of interest. It would vacate the trial court’s order and remand for
the trial court to either identify reasons, other than a conflict of
interest, that disqualify the proposed guardian or appoint the
proposed guardian as guardian.
COLORADO COURT OF APPEALS 2019COA20
Court of Appeals No. 18CA0548
Pueblo County District Court No. 16PR215
Honorable Allison P. Ernst, Judge
In re the Interest of Louis “Barney” Arguello, protected person, and the Arc of
Pueblo,
Respondents-Appellees,
v.
Fe Ana Baslick and Colorado Bluesky Enterprises, Inc.,
Petitioners-Appellants.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FREYRE
Román, J., concurs
Webb, J., concurs in part and dissents in part
Announced February 7, 2019
Linda L. McMillan, BuxmanKwitek, P.C., Pueblo, Colorado, for Petitioners-
Appellants
Melinda Badgley, Guardian Ad Litem
William J. Ballas, Pueblo, Colorado, for Respondents-Appellees
¶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
1
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
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1 Ms. Quintana and her husband moved back to Denver in 2016.
2
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
3
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
4
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
5
¶ 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
6
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 she conceded that Bluesky employs and
pays persons in both positions. And she explained that PCR is Mr.
Arguello’s “direct service provider.”
7
B. Standard of Review and Law
¶ 13 District courts enjoy wide discretion when appointing a
guardian. See In re Estate of Runyon, 2014 COA 181, ¶ 8 (“[T]he
decision of whom to appoint lies within the sound discretion of the
trial court.” (quoting In re Mitchell, 914 S.W.2d 844, 848 (Mo. Ct.
App. 1996))); 3 A. Kimberley Dayton et al., Advising the Elderly
Client § 34:40, Westlaw (database updated June 2018) (stating
district courts are in a “better position to judge the character, and
appropriateness of those who would be guardian” than appellate
courts). Accordingly, we review a district court’s appointment of a
guardian for an abuse of discretion. Runyon, ¶ 9. A court abuses
its discretion if the appointment is manifestly arbitrary,
unreasonable, or unfair, or if the court misconstrues or misapplies
the law in entering the appointment order. Id.
¶ 14 Whether the court properly interpreted and applied the
relevant statute is a legal question that we review de novo. Miller v.
Hancock, 2017 COA 141, ¶ 24. In interpreting a statute, we give
statutory words and phrases their plain and ordinary meanings. Id.
“If a statute is clear and unambiguous on its face, then we need not
look beyond the plain language, and ‘we must apply the statute as
8
written.’” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004) (citations
omitted).
¶ 15 The power to appoint a legal guardian for an incapacitated
person lies with the district court. § 15-14-301, C.R.S. 2018. The
court may appoint a guardian if it finds by clear and convincing
evidence that the respondent is an incapacitated person whose
needs cannot be met by less restrictive means. § 15-14-311, C.R.S.
2018. The court must appoint the person it believes is best suited
to protect the best interests of the incapacitated person. See §§ 15-
14-310, -314(1), C.R.S. 2018.
¶ 16 While a nonprofit corporation is eligible for guardianship
appointment, § 15-14-310 cmt., section 15-14-310(4) states that
“[a]n owner, operator, or employee of a long-term-care provider from
which the respondent is receiving care may not be appointed as
guardian unless related to the respondent by blood, marriage, or
adoption.” Long-term care is defined as
services designed to provide diagnostic,
preventive, therapeutic, rehabilitative,
supportive, and maintenance services for
individuals who have chronic physical or
mental impairments, or both, in a variety of
institutional and noninstitutional settings,
including the home, with the goal of promoting
9
the optimum level of physical, social, and
psychological functioning of the individuals.
§ 25.5-6-104(2)(h), C.R.S. 2018.
¶ 17 Case management services are defined as
the assessment of a long-term care client’s
needs, the development and implementation of
a care plan for such client, the coordination
and monitoring of long-term care service
delivery, the direct delivery of services as
provided by this article or by rules adopted by
the state board pursuant to this article, the
evaluation of service effectiveness, and the
reassessment of such client’s needs . . . .
§ 25.5-6-104(2)(b).
C. Application
¶ 18 In finding that Bluesky is a long-term care provider under
section 15-14-310(4), the court considered the definitions of long-
term care provider and case management services, as well as the
official comment to section 15-14-310, which provides as follows:
A professional guardian can still be appointed
guardian if no one with priority is available
and willing to serve or if the Court, acting in
the respondent’s best interest, declines to
appoint a person having priority. A public
agency or nonprofit corporation is eligible to be
appointed guardian as long as it can provide
an active and suitable guardianship program
and is not otherwise providing substantial
services or assistance to the respondent, but is
10
not entitled to statutory priority in
appointment as guardian.
(Emphasis added.)
¶ 19 The court recognized that while the facts of this case may not
fall “squarely” within the long-term care provider exception of
section 15-14-310(4), they nevertheless demonstrated a potential
conflict of interest between Bluesky and Ms. Balsick that rendered
her unsuitable as a guardian for Mr. Arguello. And the record
demonstrates that Bluesky “provides substantial assistance” to Mr.
Arguello in the form of case management services. The court
acknowledged Ms. Balsick’s professionalism and experience, but
determined that because she is employed by Bluesky, it would not
be in Mr. Arguello’s best interest for her to serve as his guardian.
¶ 20 We discern no abuse of discretion in the court’s finding and
conclude that it is well supported by the record. Indeed, petitioner
McAuliff, an employee of PRC, admitted that she is supervised by
Bluesky, which also employs Ms. Balsick. And Ms. Balsick
admitted that Bluesky’s service coordinator, with input from the
guardian, determines Mr. Arguello’s needed services and service
providers, including whether to continue with PCR and whether to
11
request additional services through Bluesky. Therefore, regardless
of whether Bluesky technically meets the statutory definition of a
long-term care provider, Ms. Balsick, as its employee, would have
the ability, as guardian, to recommend increased funding for Mr.
Arguello and thereby generate revenues for Bluesky. Moreover, as
guardian, Ms. Balsick would have oversight of Bluesky’s case
management services and could be hesitant, as a Bluesky
employee, to question Bluesky’s actions. Because a trial court is in
the best position to judge the character and appropriateness of
those who would be guardian, we discern no abuse of discretion
and therefore affirm the court’s order refusing to appoint Ms.
Balsick. Runyon, ¶ 8; Estate of Keenan v. Colo. State Bank & Tr.,
252 P.3d 539, 540 (Colo. App. 2011) (affirming probate court’s
finding due to sufficient record support); see also In re Guardianship
of Kowalski, 478 N.W.2d 790, 792 (Minn. Ct. App. 1991)
(recognizing under Minnesota’s version of the uniform act, which
Colorado’s law is also based on, that “[t]he appointment of a
guardian is a matter peculiarly within the discretion of the probate
court”).
12
III. The Court Erred in Appointing ARC Without Appointing a
Court Visitor Under Section 15-14-305(1)
¶ 21 Bluesky next contends that the court violated the statutory
mandate in section 15-14-305(1) by appointing ARC without first
appointing a visitor and receiving a report. Because the statute’s
plain language requires appointment of a court visitor, we agree.
Therefore, we reverse the court’s order appointing ARC as guardian
for Mr. Arguello, and we remand the case to appoint a visitor,
prepare a visitor’s report, set a hearing, and enter a new order
appointing a guardian for Mr. Arguello.
A. Standard of Review and Law
¶ 22 We review the district court’s application of law de novo.
Miller, ¶ 24. We do so under the standard set forth in Part II(B).
B. Colorado’s Guardianship Act
¶ 23 The CUGPPA is based on the Uniform Guardianship and
Protective Proceedings at of 1997 (UGPPA) law and, therefore,
“consideration must be given to the need to promote uniformity of
the law with respect to its subject matter among states that enact
it” when applying and construing it. § 15-14-121, C.R.S. 2018.
The purpose of guardianship is to protect and assist incapacitated
13
persons; however, because a guardian constitutes a restriction on
an incapacitated person’s liberty or access to property,
guardianship proceedings implicate and require due process of law.
U.S. Const. amend. XIV (“No State shall . . . deprive any person of
life, liberty, or property, without due process of law.”); Spohr v.
Fremont Cty. Dep’t of Human Servs., 2018 COA 74, ¶ 1.
¶ 24 Effective January 1, 2001, Colorado adopted the UGPPA. Ch.
368, sec. 1, §§ 15-14-101 to -433, 2000 Colo. Sess. Laws 1778-
1832; Unif. Guardianship & Protective Proceedings Act (Unif. Law
Comm’n 1997). 2 The purpose of the UGPPA is to strengthen the
due process rights of incapacitated persons who face involuntary
guardianship, and it therefore emphasizes limited guardianships
and views permanent guardianships as a “last resort.” Unif.
Guardianship & Protective Proceedings Act prefatory note.
(“[L]imited guardianships or conservatorships should be used
whenever possible, and the guardian or conservator should always
———————————————————————
2 The District of Columbia, four states (Alabama, Hawaii,
Massachusetts, and Minnesota), and one United States Territory
(the U.S. Virgin Islands), have also adopted the UGPPA.
14
consult with the ward or protected person, to the extent feasible,
when making decisions.”).
¶ 25 As well, the UGPPA entitles an incapacitated person to notice
and a hearing, unless the court finds that such person would be
substantially harmed if the appointment were delayed. UGPPA
§ 312. And, it limits emergency guardianship appointments to sixty
days. Id.; see § 15-14-312(1), C.R.S. 2018; Spohr, ¶ 25.
¶ 26 The prefatory note to the UGPPA summarizes the substantial
changes from the previous version. As relevant here, the UGPPA
specifies “procedural steps . . . which must be met before a
guardian for an incapacitated person or conservator can be
appointed,” including the “[s]pecific information . . . required in the
petition” and that “the court must appoint a visitor.” Id. The
prefatory note cites sections 304 and 305, which correspond to
sections 15-14-304 and 15-14-305 of the CUGPPA. Moreover, the
prefatory note clearly states that “a visitor is appointed in every
proceeding for appointment of guardian under Article 3.” Id.
(emphasis added). Article 3 of the UGPPA concerns guardianship
proceedings of adult incapacitated persons and corresponds to Part
3 of the CUGPPA.
15
¶ 27 Additionally, the official comments to sections 304 and 305 of
the UGPPA expand on the mandatory nature of the vetting process. 3
The comment to section 304 states that the petition for
appointment “must” contain the information listed because the
information is useful to the court in making an informed decision
regarding the appointment. The comment to 305 states that
“[a]ppointment of a visitor is mandatory . . . . The visitor serves as
the information gathering arm of the court.” And it states that the
visitor’s report “must be in writing and include a list of
recommendations or statements.” UGPPA § 305 cmt. The comment
describes only one exception to visitor appointment: “If the petition
is withdrawn prior to the appointment of a visitor, no appointment
of a visitor is necessary.” Id.
¶ 28 Colorado law incorporates the UGPPA. The appointment
process begins with the filing of a petition containing the required
information. See § 15-14-304. “Upon receipt of a petition to
establish a guardianship, the court shall set a date and time for
———————————————————————
3 We acknowledge that the UGPPA’s comments were not formally
adopted by the General Assembly and thus, do not have the force of
law. Nevertheless, we find them persuasive.
16
hearing the petition and appoint a visitor.” § 15-14-305(1).
Thereafter, the visitor must interview relevant persons listed in the
statute, including the incapacitated person, and must file a report
with the court containing recommendations “regarding the
appropriateness of guardianship.” § 15-14-305(3), (4), (5)(c).
¶ 29 In appointing a guardian, the court must follow the priority
rules set forth in section 15-14-310. While these rules give first
priority to family members, they also give the court the authority to
appoint the most qualified person, even if that person does not have
statutory priority. § 15-14-310(3). Subject to exceptions not
relevant here, a direct service or long-term care provider may not
also serve as a guardian. § 15-14-310(4), (5).
C. Analysis
¶ 30 Against this backdrop, we hold that the plain language of
section 15-14-305(1) mandates the appointment of a court visitor,
and that the plain language of section 15-14-305(3)-(5) requires the
court to receive the visitor’s report before appointing a guardian.
Aren Design, Inc. v. Becerra, 897 P.2d 902, 904 (Colo. App. 1995)
(“The use of the word ‘shall’ in the statute is presumed to indicate a
mandatory requirement.”). This construction is consistent with the
17
official comments to the UGPPA explaining that the visitor is the
information gathering arm of the process who protects the
incapacitated person’s right to due process. See Runyon, ¶ 12
(finding official comments persuasive). And neither the statute nor
the comments contain an exception to this process that could be
applied here. 4
¶ 31 Finally, we are not persuaded that the court’s “good cause”
finding requires a different result. The statute contains no “good
cause” language permitting the court to appoint a guardian without
first appointing a visitor and reviewing the visitor’s report. And we
may not read language into the statute that does not exist. Boulder
Cty. Bd. of Comm’rs v. HealthSouth Corp., 246 P.3d 948, 954 (Colo.
2011).
IV. Conclusion
¶ 32 We reverse the court’s order appointing ARC as Mr. Arguello’s
guardian. We remand the case for the court to appoint a visitor, to
follow the procedures set forth in sections 15-14-304 and -305, and
———————————————————————
4Our holding should not be construed as favoring or disfavoring the
appointment of ARC as guardian. Further, the court retains the
discretion to appoint ARC as an emergency guardian pending
completion of the further proceedings.
18
to appoint a suitable guardian for Mr. Arguello. In all other
respects, the order is affirmed.
JUDGE ROMÁN concurs.
JUDGE WEBB concurs in part and dissents in part.
19
JUDGE WEBB concurs in part and dissents in part.
¶ 33 The majority concludes that the trial court did not abuse its
discretion in finding that while the issue could not be resolved
under section 15-14-310(4), C.R.S. 2018, a potential conflict of
interest between Bluesky and Ms. Balsick rendered Ms. Balsick an
unsuitable guardian for Mr. Arguello. In my view, this conclusion
begs the question whether the court had any discretion to consider
conflicts of interest other than those set out in section 15-14-310.
Because I read this statute as fully addressing the conflict problem,
I respectfully dissent.
¶ 34 On the one hand, section 15-14-310(1) identifies categories of
“otherwise qualified” persons who may be appointed as guardians.
The list includes spouses and adult children.
¶ 35 But spouses have the same potential conflict that the court
visitor ascribed to Ms. Balsick. Where a spouse as guardian
advocated for reduced services to the protected person, marital
assets otherwise spent for such services would be available to the
spouse. An adult child who was also a beneficiary of the protected
person’s will would have a similar conflict in that reducing services
20
to the protected person would increase the value of the probate
estate.
¶ 36 On the other hand, the statute identifies relationships where
the potential for conflict is disqualifying. The majority discusses
section 15-14-310(4). In addition, subject to certain exceptions,
under section 15-14-310(5), “the same professional may not act as
an incapacitated person’s or a protected person’s: (I) Guardian and
conservator; or (II) Guardian and direct service provider; or (III)
Conservator and direct service provider.” Simply put, the General
Assembly has squarely taken up the conflict problem.
¶ 37 Neither ARC nor, for that matter, the majority, cites any
authority for the proposition that where a statute has addressed a
category — here, conflicts of interest — of prohibited conduct,
courts retain discretion to broaden the scope of the prohibition.
Nor have I found any in Colorado. To the contrary, “[w]hen the
legislature speaks with exactitude, we must construe the statute to
mean that the inclusion or specification of a particular set of
conditions necessarily excludes others.” Lunsford v. W. States Life
Ins., 908 P.2d 79, 84 (Colo. 1995); see generally In re C.T.G., 179
P.3d 213, 217 (Colo. App. 2007) (“[T]he General Assembly has
21
spoken and has established only limited circumstances in which a
person other than a parent may be awarded visitation rights to a
child.”). And none of the conflicts identified in section 15-14-310
apply to Ms. Balsick.
¶ 38 Here, the trial court effectively added a new category of
impermissible conflict. But a court does not “add words to [a]
statute . . . . [W]e cannot supply . . . missing language . . . .”
Turbyne v. People, 151 P.3d 563, 567-68 (Colo. 2007); see also
Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp., 246 P.3d 948,
951 (Colo. 2011) (same). As well, the comment to section 310 of the
Uniform Guardianship and Protective Proceedings Act, “on which
section 15-14-310 is based,” In re Estate of Runyon, 2014 COA 181,
¶ 12, calls for “[s]trict application of this subsection,” Unif.
Guardianship & Protective Proceedings Act § 310 cmt. (Unif. Law
Comm’n 1997).
¶ 39 For these reasons, I would vacate the order appointing ARC as
guardian and remand the case for the trial court to either identify
reasons other than a potential conflict of interest that disqualify Ms.
Balsick or appoint her as guardian. If the court again disqualifies
22
Ms. Balsick, then I agree with the majority that ARC cannot be
appointed without a visitor’s report.
23