A guardianship may be established for an adult if he or she lacks the mental capacity to take the steps necessary to insure his or her own health and safety. For example, if a person with advanced Alzheimer’s Disease is living at home alone, a guardianship could be established to arrange for in-home care services or explore alternative living arrangements.
A conservatorship can be established for any person who cannot manage his or her own money. It is easier to get a conservator appointed by the court than a guardian, as proof of mental incapacity is not required. Inability to pay bills, giving in to scams and fraud, or falling under the “undue influence” of a greedy relative or caregiver are valid reasons to consult an attorney about setting up a conservatorship.
The only way to establish a legal guardianship or conservatorship in Oregon is through a court order. The lawyer opens the case by filing a petition with the court. The “petitioner” can be any person interested in the welfare of the proposed “protected person.” The petitioner can also be the proposed guardian or conservator, or the petitioner can nominate a 3rd party to serve as the guardian or conservator. A petition can request that either a guardian or conservator be appointed, or that both be appointed.
Although guardianships and conservatorships are court proceedings, it is rare that the people involved ever set foot in a courtroom. Usually the attorneys handle everything with the court via mail, and when a guardianship is sought, the court appoints a “court visitor” to meet with the proposed protected person and interview the proposed guardian and other people involved. The court visitor then makes a report to the court as to whether a court order is necessary, and if the proposed guardian is suitable and qualified.
Even though a guardianship and conservatorship can be accomplished through the mail, it is a very serious matter. The proposed protected person loses many of their civil rights when a guardian is appointed for them. Therefore the proposed protected person has the right be notified of the petition and has 15 days to decide whether to object, be represented by an attorney, and present evidence at a court hearing where the petitioner has the burden of proving that a guardianship is necessary. In emergency situations, the petitioner’s lawyer can go straight to court and ask a judge for an immediate temporary order and give the notice to the proposed protected person afterwards.
Lake Oswego Elder Law attorney Ellyn Stier has represented petitioners, proposed protected persons, and proposed guardians and conservators at dozens of these types of hearings, and has always won her client’s case. However, we are mindful of the emotional and financial costs of court hearings, and always look for ways to avoid court if possible, such as negotiating or mediating for a limited court order, or getting the petition withdrawn if the protected person will accept more help and create a revocable living trust. A guardianship or conservatorship has to be designed to allow the protected person as much independence as possible.