Conservatorship and Guardianship Attorneys
When a loved one is no longer able to make health care or financial decisions, the court may appoint someone to act as their guardian or conservator to make these decisions on their behalf. Minor children sometimes need a guardian or conservator to ensure their rights are protected as well.
Our estate planning and guardianship attorneys at Johnson and Taylor, LLC help clients determine the best way to legally protect your loved one’s interests. We can assess the circumstances surrounding your case and advise you on the best course of action to ensure your loved one receives the care and protection they need.
What Is A Guardian?
A guardian is a person who is appointed by the court to make personal and health care decisions for a minor or incapacitated person. If the incapacitated person is an adult, they are known as the “protected person.” The court may also appoint a guardian and give them broad authority to make personal decisions for the protected person, including what type of medical treatment they receive and where they live. In some cases, the authority of a guardian is more limited.
When Is Guardianship Appropriate?
When someone cannot make reasonable decisions regarding their health and safety, guardianship is often an effective solution to safeguard their well-being. The court makes this determination, and the facts must satisfy Oregon’s statutory standard of incapacitated defined under Oregon statute ORS 125.005(5).
Incapacitation is defined as “a condition in which a person’s ability to receive and evaluate information effectively or make decisions is impaired to such an extent that they cannot meet essential requirements for their physical health or safety.” Essential requirements for health and safety can include food, shelter, clothing, and health care. A guardian is appointed to ensure these vital needs are met.
Deciding someone’s capacity is challenging. Until a person is deemed legally incapacitated by a court, they retain all of their rights and privileges to make decisions on their own behalf, even if those decisions are damaging to their health and security.
What Is the Process To Obtain Guardianship?
If you are considering petitioning the court for guardianship, it is critical to seek the counsel of an attorney to discuss the facts and circumstances involving the person who needs protection. Our guardianship attorneys can draft a petition that includes all relevant facts required to support a finding of incapacity.
The court considers the information in the petition, such as facts and opinions, provided by doctors and other professionals, family, and friends. The court appoints a visitor who interviews those involved in the guardianship proceeding and reports their findings to the court. This report is a crucial piece of evidence for determining whether an individual has the capacity and, ultimately, whether a guardian is appointed.
In addition, Oregon law requires that notice be given to certain family members, such as a spouse, parents, and adult children, of the proposed protected person or minor (respondent). The notice must also be personally served to respondents unless they are under 14 years of age. A respondent has the right to object to having a guardian appointed for them, request a hearing, and retain an attorney.
What Is A Conservator?
A conservator is appointed by the court to manage a minor or incapacitated person’s financial affairs and assets. The main difference between guardianships and conservatorships is that conservatorships deal only with the management of assets and income. A conservator does not make decisions regarding health care or living situation.
When Is A Conservatorship Appropriate?
A Conservatorship is required when a person lacks the capacity to make adequate decisions regarding their income, assets, or other financial matters. This determination is made by the court.
The facts must satisfy the statutory standard of financially incapable under ORS 125.005(3). Making the determination of whether someone is economically incapable is difficult. Unreasonable spending, bouncing a check, or occasionally over-drafting an account are not, on their own, sufficient reasons to warrant the appointment of a conservator.
What Is the Process To Obtain Conservatorship?
A proceeding for conservatorship is similar to the process for guardianship. Again, seeking a guardianship attorney’s advice is important to increase the chances of success of the conservatorship and to protect your loved one’s rights and finances.