Homepage / Guardianships and Conservatorships

Guardianships and Conservatorships

When a spouse, parent, or loved one is no longer able to make adequate health or financial decisions for themselves due to their incapacity, disability, or minority, the court may need to appoint an individual to act as their guardian or conservator. Meeting with an estate planning attorney who is familiar with Oregon’s laws on guardianships and conservatorships will provide you with the direction you’ll need to make sure your loved ones get the protection they need. Call 503-990-6641 for a FREE consultation or fill out the contact form to meet and discuss your questions with a guardianship and conservatorship attorney in Salem, Oregon.

What is a guardian?

A guardian is an individual appointed by the court to make personal and healthcare decisions for a minor or incapacitated person. If the incapacitated person is an adult, they are known as the “protected person.” The court may appoint a guardian and give them broad authority to make decisions for the protected person, including decisions regarding what type of medical treatment the protected person receives and where the protected person lives. In other cases, the authority of the guardian may be more limited.

When is a guardianship appropriate?

A guardianship is required when a person lacks the capacity to make adequate decisions regarding their health and safety. This determination is made by the court, and is a question of whether the person is “incapacitated”.

The facts must satisfy Oregon’s statutory standard of “incapacitated” defined under ORS 125.005(5) as:

“a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the persons physical health or safety. Meeting the essential requirements for physical health and safety means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.” ORS 125.005.

Making a determination regarding one’s capacity is extremely difficult. 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 well-being.

How is the decision to appoint a guardian made?

A guardianship proceeding starts with the filing of a petition for the appointment of a guardian. Usually, the petitioner will meet with an attorney to discuss the facts and circumstances surrounding the person in need of protection. The attorney then drafts the petition which must contain specific facts sufficient to support a finding of incapacity. The court will consider these facts along with information from doctors, other professionals, family, and friends. In addition, the court will appoint a “Visitor” who will interview the persons involved in the guardianship proceeding and report their findings to the court. The court visitor’s report is a crucial piece of evidence for determining whether an individual has capacity and ultimately whether or not a guardian is appointed.

In addition to the filing of the petition for guardianship, Oregon law requires that notice be given to certain individuals, such as the spouse, parents, and adult children of the respondent (the proposed protect person or minor). Notice must also be given to the respondent, unless the respondent is under 14 years of age. Notice to the respondent must be personally served upon them, and must include, among other things, a copy of the petition, a statement about the respondent’s right to object to having a guardian appointed over them, the right to request a hearing, and the right to retain an attorney.

If the respondent makes an objection to the guardianship within 15 days of being served with notice, a hearing before a judge will be scheduled. If no objection is made an order will be submitted to the court for the judge to sign.

What is a conservator?

A conservator is an individual appointed by the court to manage the financial affairs and assets for a minor or incapacitated person. The main difference between guardianships and conservatorships are conservatorships deal only with management of assets and income. A conservator does not make decisions regarding healthcare or placement.

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, and is a question of whether a person is “financially incapable”.

The facts must satisfy the statutory standard of “financially incapable” under ORS 125.005(3) which is defined as follows:

“Financially incapable means a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. Manage financial resources means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.”

Making a determination regarding one’s financial capacity is extremely difficult. Until a person is legally deemed by a court to be “financially incapable” they retain all of their rights and privileges to make decisions on their own behalf, even if those decisions cause financial hardship or subject them to potential financial abuse. Unreasonable spending, having a check bounce, or occasionally over drafting on an account are not, on their own, sufficient reasons to warrant the appointment of a conservator.

How is the decision to appoint a conservator made?

A proceeding for conservatorship is very similar to the proceeding for guardianship. Usually, the petitioner will meet with an attorney to discuss the facts and circumstances surrounding the person in need of a conservatorship. The attorney then drafts the petition which must contain specific facts sufficient to support a finding of financial incapacity. A conservator’s bond is usually required, however, it can be waived in some circumstances. Unlike a guardianship, a conservatorship does not require a visitor’s report.

In addition to the filing of the petition for conservatorship, Oregon law requires that notice be given to certain individuals, such as the spouse, parents, and adult children of the respondent (the proposed protected person or minor). Notice must also be given to the respondent, unless the respondent is under 14 years of age. Notice to the respondent must be personally served upon them, and must include, among other things, a copy of the petition, a statement about the respondent’s right to object to having a conservator appointed over them, the right to request a hearing, and the right to retain an attorney.

If the respondent makes an objection to the conservatorship within 15 days of being served with notice, a hearing before a judge will be scheduled. If no objection is made a limited judgement appointing a conservator is submitted to the court for the judge to sign.

How much does a guardianship and conservatorship cost?

The costs associated with guardianships and conservatorships include court filing fees, a visitor’s fee (for guardianships), conservator’s bond (for conservatorships), and the attorney fees. Generally, with court approval these costs can be paid for from the protected person’s estate.