Guardianship and Conservatorship in Oregon
When an individual suffers from dementia, mental illness or some other condition resulting in their incapacity, they may need a guardian or conservator. The laws that govern these proceedings can vary widely from state to state. This discussion pertains to the appointment of a guardian or conservator in Oregon.
Distinctions between a Guardianship and Conservatorship
There are some similarities and some distinctions between the two roles. A guardianship is a process where a person obtains the authority to make health care decisions and decisions about where someone will live. A conservator may be appointed on behalf of an adult who is financially incapable and has assets that need protection and management. A conservator may also be appointed for a minor child if they have inherited property or are the beneficiary of an insurance settlement.
How to establish a Guardianship or Conservatorship
A guardianship and a conservatorship are both protective proceedings that begin with the filing of a petition. A petition may be filed by anyone who is interested in the affairs or welfare of someone. ORS 125.010.
The person who is appointed as a guardian or conservator is termed a “fiduciary”. ORS 125.005 (2).
The person who is the subject of a protective proceeding, and allegedly in need of the appointment of a guardian or a conservator is termed the “ respondent.” ORS125.005 (10). After the guardian or conservator is appointed the person is termed a “ protected person.” ORS 125.005(7).
In order for a guardian to be appointed the petitioner must prove that the respondent is incapacitated, which means that there is a condition in which a person’s ability to receive and evaluate information effectively and to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s health or safety. ORS 125.005(5).
In order for a conservator to be appointed the petitioner must prove that the respondent is “financially incapable”, which means a condition in which a person is unable to manage financial resources of the person effectively. ORS 125.005 (3).
Before appointing a guardian the court will ask a Court Visitor to make an independent investigation and make a finding as to whether a guardian is needed and whether the person nominated in the petition is qualified. ORS 125.005 (11); ORS 125.150.
In a petition for only the appointment of a conservator the court does not appoint a Court Visitor. The court will make a finding as to whether a conservator is needed and whether the person nominated in the petition is qualified.
A petition can be filed for a guardianship, a conservatorship or both. Each case is different and a petitioner will want to discuss this with their attorney before making a decision.
Who will serve as guardian or conservator
The petitioner will need to decide who the best person will be to nominate as guardian or conservator. It may be the petitioner or a third party. Oregon law directs the court to appoint “the most suitable person who is willing to serve as fiduciary.” The court will consider the specific circumstances and desires of the respondent; the relationship to the respondent, any preferences expressed by the respondent, the nature of the respondent’s estate and the impact on ease of administration that may result from the appointment. ORS 125.200.
Sometimes it is appropriate to nominate a professional fiduciary. A professional fiduciary is a person or company that is acting as fiduciary for three or more protected persons. A proposed professional fiduciary must disclose information about themselves and their employees including their fees and must submit to a criminal records check. ORS 125.240. A knowledgeable attorney can assist you in finding the right fit if it is determined that a professional fiduciary might be best for the job. Professional fiduciaries are often used in circumstances where there is no one else who is qualified or willing to do the job or when family members cannot agree on who would best fill the role.
The guardian is required to look after the physical and mental well being of the protected person. The Guardian must file an annual report with the court and serve a copy on the protected person. ORS125.300-125.325.
A conservator manages the income and assets and of the protected persona and must file an annual accounting and serve a copy on the protected person. ORS 125.480.
Timeline for Appointment of a Fiduciary
Sometimes clients will consult an attorney when they notice that a loved one is slowly losing capacity to make decisions or it can be in response to a sudden event such as a stroke or auto accident.
A typical guardianship or conservatorship proceeding begins with a meeting where I help the client decide if they should file for a guardianship, conservatorship or both. After meeting with the client I contact any witnesses that know of the person’s incapacity including but not limited to family members, care givers or neighbors. Once all of the facts are known I draft a Petition for the client to sign and it is filed with the Court. The respondent is personally served with a copy of the Petition. Oregon law requires that other people may also need to be served. ORS 125.060. The parties have 15 days after service within which to file an objection. ORS 125.075. If no objections are filed then a Limited Judgment is submitted to the court. The judgment is usually signed by the judge with a few days. If the petition is for a conservatorship then a bond must be filed before the court will issue Letters of Conservatorship. ORS 125.410. The Court will usually issue Letters of Guardianship within a few days.
The time it takes can vary from county to county but in an uncontested case it usually takes about a month to have a fiduciary appointed and their Letters issued.
If an Objection is filed, I work hard to settle with the objector. If that is not successful mediation is often the next step. If settlement does not occur then there will be a hearing in front of a judge. The judge will make a determination as to whether a guardian or conservator is needed and who would best fill that role. In my experience, the vast majority of cases are settled and a hearing is unnecessary.
When the situation is an emergency
Sometimes the situation is so dire that it needs to be addressed immediately. In these
circumstances, it is possible to file for a temporary guardianship or temporary conservatorship.
ORS 125.600 allows a court to appoint a temporary guardian if the respondent is incapacitated and there is an “immediate and serious danger” to the respondent’s life or health and the respondent’s welfare requires “immediate action”. The court may appoint a temporary conservator where a respondent is financially incapable and there is an “immediate and serious danger” to the respondent’s estate and the respondent’s welfare requires “immediate action”. A temporary guardian or conservator serves for 30 days. Upon filing of a motion the temporary can be extended up to another 30 days. During this time the petitioner is most likely seeking appointment of a guardian or conservator for an indefinite time. Depending on the county where the petition is filed a temporary guardianship or conservatorship can be obtained in about a week.
When considering whether to file for a guardianship, conservatorship or both it is important to consult with an experienced attorney as each situation is unique.