23CA1146 Interest of Colburn 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1146
Jefferson County District Court No. 22PR30393
Honorable Ryan P. Loewer, Magistrate
In the Interest of William B. Colburn, Protected Person.
William B. Colburn,
Appellant,
v.
Kennedy Naquin, as the Community Executive Director for Peak Medical
Colorado No. 3, Inc. d/b/a Bear Creek Center,
Appellee.
ORDER AFFIRMED
Division V
Opinion by JUDGE GRAHAM*
Harris and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
The Law Office of Erick K. Hohenegger, LLC, Erick Hohenegger, Golden,
Colorado, for Appellant
Stotler Hayes Group, LLC, Andrew Hawes, Pawleys Island, South Carolina, for
Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023
1
¶ 1 Respondent, William B. Colburn, appeals a magistrate’s
finding that he is an incapacitated person under section 15-14-
102(5), C.R.S. 2023. We affirm.
I. Background
¶ 2 In April 2021, Colburn was admitted to a licensed skilled
nursing facility in Morrison, Colorado. Upon admission, Colburn
was diagnosed with, among other things, alcohol-induced persistent
dementia, severe malnutrition, hallucinations, delusions, and
paranoid beliefs.
¶ 3 Given Colburn’s diagnoses, in March 2022, the facility filed
petitions for appointment of a guardian and conservator. Attached
to the petition was a signed declaration from Colburn’s treating
physician, Dr. Leslie Eber. Dr. Eber provided Colburn treatment
for, among other things, alcohol-induced persistent dementia,
severe protein calorie malnutrition, and vascular disease. Dr. Eber
stated that in her professional opinion, Colburn’s “physical and
specifically mental conditions render him incapacitated.”
¶ 4 In August, the court appointed a court visitor. After
interviewing Colburn, facility staff, and Colburn’s family, the court
visitor filed a report recommending the appointment of a guardian
2
and conservator for Colburn based on the fact that he needed help
with “all mental aspects of daily living” and lacked “the ability to
understand, comprehend, control, access . . . or otherwise manage
his income, resources and finances.”
¶ 5 Colburn’s court-appointed counsel then requested an
independent neuropsychological evaluation, which the court
granted. Counsel selected Dr. John Dicke to perform the
independent evaluation. After completing his evaluation, Dr. Dicke
issued a report which diagnosed Colburn with psychotic delusional
disorder and narcissistic personality disorder. In his opinion,
Colburn’s conditions made him “grossly out of reality” and made “it
impossible for him to make good and reasonable decisions about
himself and his care now or in the future.” As a result, Dr. Dicke
recommended that Colburn needed a guardian because “he lack[ed]
capacity by clear and convincing evidence,” to care for himself.
¶ 6 In May 2023, the court held a hearing on both the
guardianship and conservatorship petitions. The parties agreed to
admit both the court visitor report and the independent
neuropsychological evaluation. The court additionally heard
3
testimony from the facility’s director of nursing, the facility’s
business office manager, Colburn’s roommate, and Colburn himself.
¶ 7 After hearing all the evidence, the court made oral and written
findings and granted the request for conservatorship and
guardianship.
II. Guardianship
¶ 8 Colburn contends that there was insufficient evidence for the
magistrate to find that he was an incapacitated person, as required
for appointment of a guardian.
1
We reject this contention and
conclude that there is sufficient evidence in the record to support
the magistrate’s findings.
A. Applicable Law and Standard of Review
¶ 9 Appointment of a guardian is governed by section 15-14-311,
C.R.S. 2023. As relevant here, “[t]he court may: [a]ppoint a limited
or unlimited guardian for a respondent only if it finds by clear and
convincing evidence that: (I) [t]he respondent is an incapacitated
person; and (II) [t]he respondent’s identified needs cannot be met by
less restrictive means, including use of appropriate and reasonably
1
Colburn does not challenge the appointment of a conservator.
4
available technological assistance.” § 15-14-311(1)(a)(I)-(II).
2
Section 15-14-102(5) defines an incapacitated person as follows:
[A]n individual other than a minor, who is
unable to effectively receive or evaluate
information or both or make or communicate
decisions to such an extent that the individual
lacks the ability to satisfy essential
requirements for physical health, safety, or
self-care, even with appropriate and
reasonably available technological assistance.
¶ 10 “It is the responsibility of the trier of fact to determine the
credibility of the witnesses, the weight, probative effect and
sufficiency of the evidence.” Neher v. Neher, 2015 COA 103, ¶ 54
(quoting Wright Farms, Inc. v. Weninger, 669 P.2d 1054, 1056 (Colo.
App. 1983)). Thus, on appeals of rulings under Title 15, “the
factual findings of the trial court sitting without a jury are not to be
disturbed unless clearly erroneous and not supported by the
1345 (Colo. App. 1982)).
2
Colburn only challenges the magistrate’s finding under section 15-
14-311(1)(a)(I), C.R.S. 2023 — that he is an incapacitated person.
5
B. Analysis
¶ 11 The court had the following evidence before it regarding
guardianship:
• The director of nursing testified that if Colburn were to
leave the facility, he would still need assistance managing
medications and financial decisions.
• The director of nursing testified that Colburn was unable
to communicate a safe discharge plan for himself once he
finished his rehabilitation.
• The business manager testified that Colburn was unable
to handle or discuss his financial situation and owed the
facility $139,260.
• The business manager testified that Colburn lacked
“executive functioning to manage a household or pay his
bills.”
• Both of Colburn’s sons stated that it was in Colburn’s
best interest to have a guardian.
• The court visitor report noted that Colburn needed “help
with medications and nutrition” and “all mental aspects
of daily living.”
6
• The neuropsychologist evaluation expressed concerns
that Colburn owned twenty-two firearms and that he said
the “guns would never be taken from him while he was
alive.”
• The neuropsychologist evaluation concluded that
Colburn’s “delusional system rises to the level of a
psychosis rife with conspiracies, paranoia and plots
against him” and that as a result, he is “unable to
effectively receive or evaluate information or both or
make or communicate decisions to such an extent that
he lacks the ability to satisfy essential requirements for
physical health, safety, or self-care, even with
appropriate and reasonably available technological
assistance.”
¶ 12 In contrast to the above evidence, Colburn presented evidence
that he is cognitively intact, leaves and returns to the facility at will,
is not aggressive or physically violent, and is “100 percent” capable
of performing his daily life activities.
7
¶ 13 After hearing all the evidence, the court found that Colburn
was incapacitated. The court made the following findings in its oral
ruling:
[T]he Court has seen [manifested in the
hearing * * *] the Narcissistic Personality
Disorder. It is less concerning [than] the
Delusional Disorder to the Court. But it is, as
Dr. Dicke writes, grandiose sense of
importance and achievement. Lack of
empathy and self awareness. Sense of
entitlement. Believing he and his forebears
built this country. And therefore, he is special.
And he is having the life sucked out of him by
outsiders, liberals and administrators.
. . .
Essentially, everyone else that has been
referred to by Mr. Colburn is incompetent and
is taking advantage of him. And while the
Court is quite frankly impressed by Mr.
Colburn and his history and what he has
accomplished — and I say that sincerely, Mr.
Colburn — we’re at a point right now where
there is a level of assistance that is necessary.
. . .
Mr. Colburn is unable to manage property and
business affairs because of an inability to
effectively receive and evaluate information,
and to make — and communicate his
decisions, even with the use of appropriate and
reasonably available technological assistance.
8
This is because of the Delusional Disorder and
the impasse that Mr. Colburn has created in
light of the Narcissistic Personality Disorder.
. . .
I have to look at 15-14-102, Subsection 5,
which gives us all the definition of
incapacitated person. I’m going to take the
time to read that. It means an individual other
than a minor, who is unable to effectively
receive or evaluate information or both or
make or communicate decisions to such an
extent that the individual lacks the ability to
satisfy essential requirements for, as Dr. Dicke
addressed these three things as well.
For physical health, safety or self care even
with appropriate and reasonably available
technological assistance.
The Court has great concern [about] Mr.
Colburn’s lack of appreciation of his continued
ownership of firearms. While much of what
Dr. Dicke concludes as the basis of his expert
opinion are not facts that the Court can just
readily adopt, I do recognize statements
attributed to Mr. Colburn, which are
statements against interest, which the Court
does adopt. And that is that Mr. Colburn
continues to have firearms. And that he is —
will not readily relinquish those.
The Court finds that by clear and convincing
evidence, Mr. Colburn is an incapacitated
person. And that his needs cannot be met by
less restrictive means. That does not mean to
say that an assisted living facility is not
appropriate and that he requires skilled
nursing. That is not the standard here. It will
9
be for the Guardian’s — part of the Guardian’s
charge to make that determination.
The Court finds that as [an] incapacitated
person, Mr. Colburn’s needs cannot be met by
less restrictive means, including the use of
appropriate and reasonably available
technological assistance.
¶ 14 We conclude that this evidence is sufficient to show that
Colburn was unable to “effectively receive or evaluate information or
both or make or communicate decisions to such an extent” that he
“lack[ed] the ability to satisfy essential requirements for physical
health, safety, or self-care, even with appropriate and reasonably
available technological assistance.” § 15-14-102(5). As such, the
evidence in the record supports the guardianship order.
III. Disposition
¶ 15 The order appointing a guardian for Colburn is affirmed.
JUDGE HARRIS and JUDGE LUM concur.
