Should I Become a Guardian for my Elderly Family Member
April 20th, 2020
If you have an elderly relative who needs help making decisions, you may want to consider becoming a guardian. A successful guardianship arrangement can be beneficial to all involved. When there is a trusted person at the helm, who truly acts in the best interests of a loved one, the loved one is well taken care of and can often thrive. Your loved one will no longer have to worry about their finances or making any major decisions. Before you start the process of becoming a guardian, however, it is important to have a detailed understanding of what your duties and responsibilities will be as a guardian, how the court will determine whether or not you should be appointed, and how Oregon law seeks to limit and oversee the powers of a guardian.
Duties of a Guardian
Under Oregon law, guardianships must “encourage the development of maximum self-reliance and independence of the protected person.” A guardian has several essential duties:
- To act only in the best interest of the person you are chosen to help (referred to as the “protected person”);
- To manage the protected person’s money or property carefully, if you are in charge of making financial decisions;
- To keep the protected person’s money and property separate from your money and property; and
- To keep good records about the protected person’s money or property and your decisions.
A “general” guardian (meaning that no specific limitations on the guardian’s authority have been set) has the following powers and duties:
- To decide where the protected person lives;
- To provide for the protected person’s care, comfort and maintenance, including training and education;
- To take care of the protected person’s personal property;
- To make health care decisions;
- To make advance funeral and burial arrangements;
- To control the disposition of the protected person’s remains; and
- To receive and spend the protected person’s money for his/her support, care, and education.
Importantly, Oregon law prohibits a guardian from placing the protected person in a mental health treatment facility, nursing home, or residential facility unless the guardian gives prior written notice to the court, as well as to the protected person and other interested parties, and gives the protected person the opportunity to object and to have a hearing.
As a guardian, you will be required to file a report with the court once each year describing, among other things, how the protected person is doing, how the guardianship powers have been used during the year, and whether or not the guardianship should be continued.
How to Become a Guardian
Only a court can set up a guardianship. Under Oregon law, a guardian may be appointed “only as is necessary to promote and protect the well-being of the protected person.” In evaluating a petition to be appointed as a guardian, the judge will consider whether or not the evidence shows that:
- The person is incapacitated (unable to make decisions about his or her 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.
Guardians may be family members, friends, or qualified professionals, including non-profit agencies or public programs. Notably, Oregon law gives preference to a family member to act as guardian.
The protected person must be notified if you are seeking to be appointed guardian, and he or she will have the opportunity to object and to request a hearing. Notice must also be given to any other interested parties. The court will also send an independent investigator (called a court visitor) to meet with the protected person to verify whether or not a guardian is needed and to evaluate the suitability of the proposed guardian.
After the court visitor submits a report, and a hearing is held (if requested), the court will rule on the petition. The guardianship judgment may be tailored to meet the protected person’s actual mental and physical limitations so that the scope of the guardianship is the least restrictive possible.
How We Can Help
If you need assistance becoming a guardian for an elderly 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.