Guardianship or Conservatorship: Which is best for your loved one

If a loved one has become incapable of making decisions on their own, they may need someone to assist them. Whether they are facing decisions about their medical treatment or in their everyday life, Oregon has several options for families to consider, including guardianship and conservatorship. If your loved one only needs assistance in making financial decisions, conservatorship may be the right option, but if decision-making authority is needed in other areas, such as health care and daily life, then guardianship is the way to go. There are other options for assisting incapacitated loved ones with making decisions, including advance directives and powers of attorney.

Becoming a fiduciary, meaning a person who is legally responsible for helping someone make decisions, is in itself an important decision. Understanding the process of becoming a guardian or conservator, as well as the duties and responsibilities that will be required if you are appointed, should go a long way to giving you and your loved one peace of mind as you navigate what can be a difficult and emotional process. As experienced family law attorneys, we are here to provide help and support.

Duties of a Fiduciary

A fiduciary has several essential duties on behalf of the person you are helping (referred to as the “protected person”):

• To act only in the best interest of the protected person
• To manage the protected person’s money or property carefully if you are in charge of making financial decisions for the protected person
• To keep any of the protected person’s money and property separate from your money and property
• To keep good records about the person’s money or property and your decisions.

Guardianship

Guardianship is the formal process by which a court appoints another person, called a guardian, to act on behalf of the incapacitated person. Under Oregon law, guardianships must encourage maximum independence for the person. To become a guardian for someone, you must be able to show the court the following:

• The person is incapacitated, meaning that he or she cannot make decisions about their own health and safety;
• A guardian is necessary to oversee the care and supervision of the person; and
• The guardian is qualified, suitable, and willing to serve.

Your loved one may be legally incapacitated in some areas, but not in others. With this in mind, a guardianship should be limited so that you are only given decision-making authority in the area the protected person is incapacitated. For example, a guardianship may apply only to medical treatment decisions. If no limitations are specified, it will be considered a general guardianship.

Conservatorship

Conservatorship in Oregon is similar to guardianship, except that a conservator only makes decisions about the protected person’s money or property. To become a conservator for someone, you must be able to show the court the following:

• The protected person cannot manage his or her financial affairs; and
• The person has money or property that requires management or protection.

If your loved one is unable to carry out actions necessary to obtain, administer, and dispose of real property, personal property, intangible property (such as bank accounts), business property, benefits, or income, he or she may be found to be “financially incapable,” warranting a conservatorship.

Other Options for Assisting Loved Ones With Decision-Making

Oregon law provides for other types of fiduciary relationships and substituted decision-making options, including:

• Advance directive: document of health care instructions as to what treatments a person would want or not
• Health care representative: for someone with intellectual or developmental disabilities living in a residential facility
• Physician orders for life-sustaining treatment (POLST): a medical order giving seriously ill or frail people control over the treatments they want or do not want during a medical crisis
• Declaration for mental health treatment (DMHT): a form that tells doctors what kind of mental health treatment they would like if they have a mental health crisis and cannot make treatment decisions
• Power of attorney: a legal document that allows a person to give another person (called an “agent”) the right to act on the person’s behalf (only for financial decisions)

Stay tuned for future blog posts for further detail about these other options.

How We Can Help

If you need assistance becoming a fiduciary for a loved one, we welcome you to contact Litowich Law. Based in Salem, we serve clients throughout Oregon and are dedicated to helping to protect you and your family now and for the future.