We walked toward downtown on the Hawthorne Bridge, my three adult kids, my son-in-law, and my grandson in a stroller, and I. We were headed for the Waterfront Blues Festival around the Fourth of July, and I was feeling so many things I love about living here: 70 degree summer temperatures, easily accessible music venue, sparkling water below me, an open space filling with happy people and good music and a beer ahead of me. A huge American flag rippled in the wind atop the Umpqua Bank Building. My daughter noticed it, and said “Even Dad might feel patriotic looking at that.”

That stung me, because I was feeling patriotic at that moment. I felt lucky to be part of this city, this state, and this country. I get this feeling every now and then, even when I’m at work. As an elder law attorney, I often witness a fundamental American principle at work and it makes me proud.

The Constitution states that no one shall be deprived of life, liberty or property without due process of law. What constitutes due process and who is entitled to it is being redefined as I write this, and as this often unsettling process evolves, I reflect on my own work and recognize the regular application of due process to guardianship cases. 

Guardianship deprives a person of the right to make decisions for himself. The Constitution guarantees that such a deprivation shall not happen without due process of law. Oregon law requires that if someone is the subject of a guardianship petition, that person is entitled to notice of the petition and an opportunity to object to it before the guardianship is granted. In some cases, the court appoints a lawyer for that person. That person is entitled to a hearing if she objects. If the court appoints a guardian, the guardian can’t move the protected person without giving notice of the move prior to the move, and the guardian can’t sell the home of the protected person without giving notice of the proposed sale to the court and to the protected person and an opportunity to object. Notice and the opportunity to be heard comprise due process rights that guardianship law acknowledges constantly.

Oregon law often requires notice to be provided to an organization called Disability Rights Oregon (DRO) when a guardianship petition, or a petition to move a person, or a petition to sell a person’s residence, is filed in court. DRO lobbies the legislature to make sure that laws governing guardianship establish the least restrictive means possible for protecting an incapacitated person. In individual cases, the court will appoint DRO attorneys to represent protected persons in their objection to guardianship or to something that a guardian has proposed. Oregon law requiring notice to DRO in guardianship cases is another example of due process that I have a duty to follow every week.

In some cases over the last twenty years, I have felt that due process rights endanger a person who needs a guardian. As that person awaits his day in court, his condition deteriorates, and my client who petitioned to become his guardian, and who is trying to save his life, is bogged down with delays and growing costs of legal process. In those cases, what needs to happen seems so clear to me, and I wish that the court and the law and the lawyers would get out of the way and just let the guardianship happen.

Those thoughts don’t occur to me as much any more. The last few months have reminded me that as fundamental to this country as due process of law is, it can shrink quickly. When it does, the risk of being deprived of liberty without due process grows. Fortunately, due process of law is everywhere in elder law, and although a DRO attorney’s due process definition may vary from that of a guardian’s attorney, we will agree that due process of law is fundamentally important to what we do.

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