A person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court. The guardianship continues until terminated, without regard to the location of the guardian or minor ward.
Source: L. 2000: Entire part R&RE, p. 1786, � 1, effective January 1, 2001 (see � 15-17-103); entire section amended, p. 290, � 8, effective January 1, 2001.
Editor's note: This section is similar to former � 15-14-201 as it existed prior to 2001.
15-14-202. Testamentary appointment of guardian - appointment by written instrument. (1) A guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future. A guardian may also be appointed by will or other signed writing by a guardian of a minor child. The appointment may specify the desired limitations on the powers to be given to the guardian. A guardian may not appoint a surviving parent who has no parental rights to be a successor guardian. The appointing parent or guardian may revoke or amend the appointment before confirmation by the court.
(2) Upon petition of an appointing parent or guardian and a finding that the appointing parent or guardian will likely become unable to care for the child within two years, and after notice as provided in section 15-14-205 (1), the court, before the appointment becomes effective, may confirm the selection of a guardian by a parent or guardian and terminate the rights of others to object. If the minor has attained twelve years of age, the minor must consent to the appointment of a guardian pursuant to section 15-14-203 (2).
(3) Subject to section 15-14-203, the appointment of a guardian becomes effective upon the death of the appointing parent or guardian, an adjudication that the parent or guardian is an incapacitated person, or a written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the child, whichever occurs first.
(4) The guardian becomes eligible to act upon the filing of an acceptance of appointment, which must be filed within thirty days after the guardian's appointment becomes effective. The guardian shall:
(a) File the acceptance of appointment and a copy of the will with the court of the county in which the will was or could be probated or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court of the county in which the minor resides or is present; and
(b) Give written notice of the acceptance of appointment to the appointing parent or guardian, if living, the minor, if the minor has attained twelve years of age, and a person other than the parent or guardian having care and custody of the minor.
(5) Unless the appointment was previously confirmed by the court, the notice given under paragraph (b) of subsection (4) of this section must include a statement of the right of those notified to terminate the appointment by filing a written objection in the court as provided in section 15-14-203 (1) and of the right of a minor who has attained twelve years of age to refuse to consent to the appointment of the guardian as provided in section 15-14-203 (2).
(6) Unless the appointment was previously confirmed by the court, within thirty days after filing the notice and the appointing instrument, a guardian shall petition the court for confirmation of the appointment, giving notice in the manner provided in section 15-14-205 (1).
(7) The appointment of a guardian by a parent does not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who died or was adjudged incapacitated has priority. If a guardian survives the death or adjudication of incapacity of both parents, an appointment by the last parent or guardian who died or was adjudged incapacitated has priority. An appointment by a parent or guardian which is effected by filing the guardian's acceptance under a will probated in the state of the testator's domicile is effective in this state.
(8) The powers of a guardian who complies timely with the requirements of subsections (4) and (6) of this section relate back to give acts by the guardian which are of benefit to the minor and occurred on or after the date the appointment became effective the same effect as those that occurred after the filing of the acceptance of the appointment.
(9) The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to section 15-14-203 (1) or of the refusal of a minor child who has attained the age of twelve years to consent pursuant to section 15-14-203 (2).
Source: L. 2000: Entire part R&RE, p. 1786, � 1, effective January 1, 2001 (see � 15-17-103); entire section amended, p. 291, � 9, effective January 1, 2001. L. 2009: (1) amended, (HB 09-1241), ch. 169, p. 762, � 18, effective April 22.
Editor's note: This section is similar to former � 15-14-202 as it existed prior to 2001.
15-14-203. Objection of others to parental appointment - consent by minor of twelve years of age or older to appointment of guardian. (1) Until the court has confirmed an appointee under section 15-14-202, the other parent, or a person other than a parent or guardian having care or custody of the minor may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment. An objection may be withdrawn, and if withdrawn is of no effect. The objection does not preclude judicial appointment of the person selected by the parent or guardian. The court may treat the filing of an objection or the refusal of the minor to consent as a petition for the appointment of an emergency or a temporary guardian under section 15-14-204, and proceed accordingly.
(2) Until the court has confirmed an appointee under section 15-14-202, a minor who is the subject of an appointment by a parent or guardian and who has attained twelve years of age has the right to consent or refuse to consent to an appointment of a guardian. If the minor consents to the appointment of the guardian, the minor shall file with the court in which the will is probated or the written instrument is filed a written consent to the appointment before it is accepted or within thirty-five days after notice of its acceptance. If the minor does not consent to the appointment of a guardian, then the court shall appoint a guardian pursuant to section 15-14-204.
Source: L. 2000: Entire part R&RE, p. 1787, � 1, effective January 1, 2001 (see � 15-17-103); entire section amended, p. 292, � 10, effective January 1, 2001. L. 2012: (2) amended, (SB 12-175), ch. 208, p. 840, � 50, effective July 1.
Editor's note: This section is similar to former � 15-14-203 as it existed prior to 2001.
15-14-204. Judicial appointment of guardian - conditions for appointment - definition. (1) A minor or a person interested in the welfare of a minor may petition for appointment of a guardian.
(2) The court may appoint a guardian for a minor if the court finds the appointment is in the minor's best interest, and:
(a) The parents consent;
(b) All parental rights have been terminated;
(c) The parents are unwilling or unable to exercise their parental rights; or
(d) Guardianship of a child has previously been granted to a third party and the third party has subsequently died or become incapacitated and the guardian has not made an appointment of a guardian either by will or written instrument; however, the court shall not presume it is in the best interests of a child to be in the care of a parent in circumstances where a court has previously granted custody of a child to a third party.
(2.5) (a) For purposes of this subsection (2.5) only, minor means an unmarried individual who has not attained twenty-one years of age.
(b) The court may enter an order appointing a guardian of a minor, as defined in subsection (2.5)(a) of this section, and a determination of whether the minor shall be reunified with a parent or parents, when the requirements of subsection (2) of this section are met, the order is in the minor's best interests, and:
(I) The minor has not attained twenty-one years of age;
(II) The minor is residing with and dependent upon a caregiver; and
(III) A request is made for findings from the court to establish the minor's eligibility for classification as a special immigrant juvenile pursuant to 8 U.S.C. sec. 1101 (a)(27)(J).
(c) If a request is made for findings establishing the minor's eligibility for classification as a special immigrant juvenile under federal law and the court determines there is sufficient evidence to support the findings, the court shall enter an order, including factual findings and conclusions of law, determining that:
(I) The minor has been placed under the custody of an individual appointed by the court through the appointment of a guardian;
(II) Reunification of the minor with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found pursuant to state law. For purposes of this subsection (2.5)(c)(II), abandonment includes, but is not limited to, the death of one or both parents.
(III) It is not in the best interests of the minor to be returned to the minor's or parents' previous country of nationality or country of last habitual residence.
(3) If a guardian is appointed by a parent or guardian pursuant to section 15-14-202 and the appointment has not been prevented or terminated under section 15-14-203 (1) or the minor has consented to the appointment pursuant to section 15-14-203 (2), that appointee has priority for appointment. However, the court may proceed with another appointment upon a finding that the appointee under section 15-14-202 has failed to accept the appointment within thirty days after notice of the guardianship proceeding.
(4) If necessary and on petition or motion and whether or not the conditions of subsection (2) have been established, the court may appoint a temporary guardian for a minor upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor. Notice in the manner provided in section 15-14-113 must be given to the parents and to a minor who has attained twelve years of age. Except as otherwise ordered by the court, the temporary guardian has the authority of an unlimited guardian, but the duration of the temporary guardianship may not exceed six months. Within five days after the appointment, the temporary guardian shall send or deliver a copy of the order to all individuals who would be entitled to notice of hearing under section 15-14-205.
(5) If the court finds that following the procedures of this part 2 will likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor. The duration of the emergency guardian's authority may not exceed sixty days and the emergency guardian may exercise only the powers specified in the order. Reasonable notice of the time and place of a hearing on the petition for appointment of an emergency guardian must be given to the minor, if the minor has attained twelve years of age, to each living parent of the minor, and a person having care or custody of the minor, if other than a parent. The court may dispense with the notice if it finds from affidavit or testimony that the minor will be substantially harmed before a hearing can be held on the petition. If the emergency guardian is appointed without notice, notice of the appointment must be given within forty-eight hours after the appointment and a hearing on the appropriateness of the appointment held within five days after the appointment.
Source: L. 2000: Entire part R&RE, p. 1788, � 1, effective January 1, 2001 (see � 15-17-103); entire section amended, p. 293, � 11, effective January 1, 2001. L. 2003: (5) amended, p. 2110, � 4, effective May 22. L. 2019: (2.5) added, (HB 19-1042), ch. 55, p. 192, � 2, effective March 28. L. 2024: IP(2.5)(c) and (2.5)(c)(II) amended, (SB 24-119), ch. 33, p. 102, � 2, effective August 7.
Editor's note: This section is similar to former � 15-14-204 as it existed prior to 2001.