Colorado lawmakers have approved a project where the state would provide guardianship services to vulnerable adults who, lacking access to family or friends, need someone to help handle their affairs. But the Colorado Office of Public Guardianship, despite the legislature’s backing, is hardly closer to opening its doors than it was when the Colorado General Assembly approved it in 2017.
The main reason, according to members of the Office of Public Guardianship Commission, is that the bill to form the OPG requires five volunteer commissioners to raise $1.7 million in gifts, grants and donations on their own to launch the project.
As a critical deadline for the pilot project approaches and the OPG commission chair steps down, the new legislative session poses opportunities that could jumpstart the beleaguered project.
A Self-Starter Becoming a Non-Starter?
At least 45 states have statutes providing for public guardianship services, most of which have a state-funded office to serve incapacitated adults statewide. State-commissioned reports have found that Colorado could realize savings in Medicaid, adult protective services, and law enforcement among other expenses if it provides guardianship services.
In 2017, the Colorado General Assembly enacted a bill enabling the state to provide legal guardianship services to incapacitated adults who neither have family and friends available to make decisions on their behalf, nor the funds to pay for a private guardian.
House Bill 17-1087 called for a commission to set up a three-year pilot program, through which the Colorado Office of Public Guardianship would provide public guardians in the 2nd, 7th and 16th judicial districts. The office, which is based in the Colorado Judicial Department, would then submit a report to the state legislature by January 2021 assessing the program’s viability and whether it should continue.
But the pilot project is nowhere near starting, and with less than two years until the report deadline. Before the OPG program can launch — or its commission can even hire a director to run it — the commission members have to raise $1.7 million in grants, gifts and donations that would fund the program through its first year. HB 17-1087 allotted the commission no budget, and its members, all volunteers, must raise the funds on their own. As of Jan. 2, the commission has raised just over $1,800.
The five-member commission is currently down to four. Commission Chair Shari Caton, an elder law attorney with Poskus, Caton & Klein in Denver, told Law Week on Tuesday that she resigned her position, citing “other personal and professional commitments.” Vice Chair Deb Bennett-Woods, a retired professor of health care management and ethics, is currently acting as commission chair.
The other commissioners are Marco Chayet, Kelsey Lesco and Karen Kelley. The commissioners have met monthly since October 2017 and have presented on the OPG to stakeholders throughout the state, who include hospitals, nonprofits, attorneys and social workers.
Bennett-Woods said the lack of fundraising traction isn’t from a lack of interested donors, but “that there is a wariness to the gifts, grants and donations approach.”
Under the OPG legislation, any money a donor gives to the commission receives goes into the state’s general fund, and it only goes to the OPG pilot project if the commission achieves its $1.7 million goal — of which there is no guarantee.
“It’s hard to convince a donor to take that risk,” Bennett-Woods said. At the same time, people and organizations who want a public guardian service might be puzzled as to why the state is relying on donations instead of funding the service itself. “What I can tell right now from the stakeholder community is that they believe [the OPG funding is] a legislative responsibility,” Bennett-Woods said.
Weighing Options
Stalled by the donor freeze-out, the OPG commission has been seeking funding through appropriations. In September, it submitted a request to the Joint Budget Committee for $565,469 for fiscal year 2019 and $1,748,786 for FY 2020, and proposed amendments that would push back its pilot project’s deadlines to account for its delayed start. Bennett-Woods said it’s unclear so far whether the Joint Budget Committee will take up a bill this session with the fixes her commission requested.
But a lawmaker has brought forth a bill that would help the OPG project move forward — albeit in different ways. When the new session opened Jan. 4, Democratic Rep. Marc Snyder of Manitou Springs introduced a bill that would allow the commission to appoint a director, and for the director to begin administering the pilot project, before the commission meets its fundraising goal.
In its current form, the bill doesn’t call for any project funding or adjust the deadlines, and it has been assigned to the House Judiciary Committee. Snyder, an estate planning attorney, is HB 1045’s lone sponsor, and the commission wasn’t involved in its drafting.
“We have not had an opportunity to talk to Rep. Snyder about the bill,” Bennett-Woods said. She added that while HB 1045 would be “a step forward,” the commission’s main objective at the session is to get funding and push back deadlines.
The commission wants to hire a lobbyist pro bono for the session, according to its letter to the Independent Ethics Commission. The OPG commission is asking the IEC to issue an advisory opinion finding it isn’t prohibited from receiving the free lobbying services. Specifically, the commission is arguing that its commissioners, being unpaid, aren’t “public officers” under the Colorado Constitution and therefore aren’t subject to its restrictions on gifts officials may receive.
Bennett-Woods said the OPG should have a legislative liaison at the Capitol just like any other state agency. The OPG legislation tasked the commissioners with being fundraisers, and “now we’re acting as pseudo-lobbyists as well, and it’s just not effective,” she added. “There’s a reason other [state] departments don’t work that way.”
Bennett-Woods said much could happen to change the OPG project’s fortunes in the coming weeks, like the IEC opinion and activity at the Capitol. “I think that if we can … extend the [piilot project] and get the funding, we can make [it] work.”
The need for public guardians in Colorado’s health care and social work community “is an issue that the general public is not very familiar with,” she added. “But the stakeholders are aware of this. They’re just waiting for us to do something.”
— Doug Chartier