Guardianships

What is a guardian?

A guardian is a person appointed by the court to make decisions about health care and personal matters for an adult who is incapacitated. The Oregon statutes define "incapacitated" as being unable to make or communicate the decisions necessary to provide for the person's basic physical health and safety. A medical diagnosis, such as Alzheimer's Disease, traumatic brain injury, bi-polar disorder, or Down syndrome, is not the same as a finding of legal incapacity. A person who makes bad decisions or who refuses to accept medical treatment or other help may not be incapacitated. A guardian can also be appointed for a minor child (under the age of 18).

How is a guardian appointed?

The process begins when an attorney representing a family member or other concerned person (called the petitioner) files a petition with the court that includes facts showing the respondent is incapacitated. In many cases, the petition asks the court to appoint both a guardian and a conservator. The respondent has to be personally served with a copy of the petition, together with a notice about his or her rights. Copies of the petition and notices about the guardianship case have to be mailed to the respondent's closest relative(s) and to other people and agencies required by the law. The respondent can object to the guardianship or to the proposed guardian. Other people can also object. Objections are only filed in a small number of cases.

The judge appoints a court visitor to interview the people involved in the case and to write a report for the court. If no objections have been made and the court visitor's report supports the guardianship, the judge will usually sign an order appointing the guardian. Once a guardian has been appointed, the respondent is called the protected person.

How does a judge decide whether someone needs a guardian?

If someone makes an objection to the petition, the judge will hold a hearing. At the hearing, the court visitor and other witnesses will testify and the parties can present additional evidence. The judge then decides whether the respondent is incapacitated, whether the appointment of a guardian is necessary, and whether the proposed guardian is qualified and suitable.

What happens when there is an emergency?

The court can appoint a temporary or emergency guardian for up to 30 days if there is strong evidence of a serious and immediate danger to the respondent's life or health. In most cases involving a temporary guardian, the petitioner also asks the court to appoint a guardian for an indefinite period. Although not all courts follow the same procedures, there is usually a short hearing on the temporary guardianship and the petitioner is required to provide supporting evidence, such as a letter from the treating doctor describing the threat to the respondent's life or health. The most common reasons for asking the court to appoint a temporary guardian is to get medical care or to arrange for placement in a care facility in a crisis situation.

What powers and duties does the guardian have?

The guardian has the powers that are included in the order signed by the judge. Usually, the guardian will have the power to decide where the protected person lives, to make arrangements for the protected person's care and safety, and to make health care decisions. If there is no conservator, the guardian may be responsible for taking care of the protected person's belongings and a limited amount of money.

The guardian must file a report with the court every year with information about where the protected person lives, the services that the protected person receives, and his or her physical and mental condition. If the guardian is taking care of money, the report has to include information about the money. The guardian is required to get the court's permission before paying himself or herself for providing room and board or care to the protected person. The guardian has to give a special type of notice before placing the protected person in a care facility or moving the protected person from one care facility to another.

Who will be the guardian?

In most cases, a close relative is appointed to serve as the guardian. The same person may be both the guardian and the conservator. Although the guardian is not required to live in Oregon, it may be difficult for a guardian who lives far from the protected person to carry out his or her duties. When a close relative is not available or suitable, or when family members disagree about who should be the guardian, the court may appoint a professional fiduciary to serve as the guardian. Professional fiduciaries have training or experience in areas such as nursing, social work, case management, gerontology, long term care, banking, bookkeeping, law, and mediation and are available to act as guardians for incapacitated people who have the resources to pay for their services. You can find more information about the professional fiduciaries at the web site of the Guardian/Conservator Association of Oregon, www.gcaoregon.org. The attorneys at The Elder Law Firm represent professional fiduciaries in some cases and work with them in others.

How much does a guardianship cost?

The out-of-pocket costs to begin a guardianship in Oregon are the filing fee, which is $78 (in 2010); the fee for the court visitor, which varies by county but is generally between $250 and $500; and the expenses for having the respondent personally served, submitting judgments to the court, getting certified copies from the court, etc., which are usually around $150. In some cases, it is necessary to pay for a medical or psychological evaluation or other assessment of the respondent.

The attorney fees are based on the amount of time spent. The attorney fees will be higher in temporary guardianships and in contested cases because more time and work is required. If the court appoints the guardian, the attorney can submit a detailed description of the time spent on the case and the out-of-pocket expenses to the court and ask the judge to approve having those legal fees and costs paid out of the protected person's funds.