Interest of Colburn

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

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¶ 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

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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

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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.

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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

record.” Id. (quoting In re Marriage of Hoffman, 650 P.2d 1344,

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.

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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.”

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• 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.

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¶ 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.

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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

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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.