Adult Guardianship in Oregon
June 27th, 2022
If you have an elderly family member who can no longer make decisions on their own behalf, you may consider a guardian arrangement. Not to be confused with a conservatorship (which has to do with financial decision-making), an adult guardianship is a legal arrangement to assist an incapacitated individual with making healthcare and personal decisions. While guardianships encourage maximum independence, they still remove the protected person’s fundamental civil rights and are taken very seriously by the courts.
What is a Guardian?A guardian is a person appointed by the court who is given the authority to make important decisions for an incapacitated individual regarding healthcare and personal matters. The Oregon statute defines an incapacitated individual as someone who is unable to communicate the decisions that are necessary to provide for their health, safety, and welfare. Critically, a medical diagnosis is not the same as a finding of legal incapacity which must be determined by a court. The person for whom a guardian is appointed in a protective proceeding is referred to as the “protected person.” An adult guardianship lasts until the protected person passes away, the guardian resigns, or a judge determines the guardianship is no longer needed.
Adult Guardianship Duties and ResponsibilitiesA guardian has various duties and responsibilities under Oregon law. But at all times, they are expected to encourage the protected person to participate in decision-making and act for themselves whenever possible. The guardian has an obligation to become acquainted with their ward, regularly visit with them, and get to know their limitations, needs, and any health conditions. A guardian must also learn about the values and preferences of the protected person and make decisions they reasonably believe the protected person would have made for themselves if they were able. Specifically, Oregon law sets forth the following responsibilities for adult guardianships:
- Maintain custody of the protected person
- Choose where the protected person lives
- Provide for the care, comfort, and maintenance of the protected person
- Arrange for the protected person’s education, when appropriate
- Take reasonable care of the protected person’s clothing, furniture, and personal belongings
- Make healthcare decisions for the protected person (with some limitations)
- Make funeral and burial arrangements
How Are Guardians Appointed?A guardian for an adult is appointed in a “protective proceeding” after a case is opened by filing a petition in the county where the incapacitated person lives. The petition must contain facts to support the need for a guardian and establish why the proposed guardian is suitable for the role. When considering whether an adult guardianship is appropriate, a court will first consider if a less restrictive alternative is viable. Other options might include an advance healthcare directive, a durable power of attorney, family involvement, or a declaration for mental health treatment. Significantly, a guardianship can be tailored to meet the incapacitated person’s mental and physical limitations — the scope of a guardianship should be the least restrictive possible. A temporary guardian proceeding may also be commenced if immediate action must be taken to protect the incapacitated person from imminent harm or danger. The appointment of a temporary guardian can only be for a specific purpose and duration, not to exceed 30 days. However, the order can be extended for an additional 30-day period. After a guardianship petition is filed, the court will send an investigator referred to as a “court visitor” to meet with the person in need of a guardian at their home. They will also talk with doctors, caregivers, and anyone else who has relevant information concerning the potential need for a guardian. Following their investigation, the court visitor will submit a report to the judge regarding their opinion as to whether a guardian is needed. A judge will review all the information in the case to determine whether the individual satisfies the legal criteria for incapacitation, warranting the appointment of a guardian.
Who Can Petition for a Guardianship?An incapacitated person may petition for a guardianship on their own behalf — or someone else may start the proceeding. All interested parties must be notified of the action and receive a copy of the petition, including the person allegedly in need of a guardian. In addition, close family members must be notified, as well as Disability Rights Oregon if the guardian intends to place the protected person in a mental health or residential facility. All parties may raise an objection to the appointment of the guardianship itself or any aspect of the petition.
Contact an Experienced Adult Guardianship Attorney in OregonIf you require assistance with an adult guardianship matter, it’s important to have the knowledge and guidance of a trusted attorney. Providing compassionate counsel and experienced representation, Litowich Law works with individuals and their families to find the best possible solutions for their situations. Based in Salem and serving clients throughout Oregon, we welcome you to contact us for a consultation to learn how we can help.