Thursday, December 3, 2009

What is a court visitor?

In guardianship cases, Oregon law requires that a "court visitor" interview the elder, the caregivers, and the family. The visitor--the independent eyes and ears of the judge--then makes a report to the court. Often the court visitor is the most important witness in the case. The lawyer with a court visitor's report on his side is likely to win, and the lawyer going against the recommendation of the court visitor is left scrambling for a paid expert willing to testify that the court visitor is wrong.

The process for hiring the court visitor varies widely from county to county. In Multnomah County there are two court visitors. You pay their fee when you file the guardianship petition, and the probate department decides which visitor gets the case. The current fee is about $425. In other counties the lawyer must select a visitor from a list and pay the visitor directly. In the larger counties the court visitors are psychologists or social workers. In counties where money is short, the visitor may be a local volunteer with time on his hands, or a judge's secretary.

If no one objects to a guardianship petition and the court visitor recommends it, the court will order a guardian appointed without ever hearing from the disabled elder. If, however, the elder objects to the guardianship or wants an attorney, the visitor will communicate that to the court. The court will then advise the lawyers and set the matter for a hearing. It the elder cannot afford an attorney, the court will assign one from a list of volunteers.

At a hearing on a guardianship, the report of the visitor comes into evidence and the visitor testifies as an expert. This means that the visitor can stay in the courtroom, watch the other witnesses, and comment upon what they say. The position of visitor is so powerful in some counties, that lawyers write their guardianship petitions with the visitor in mind.

Judges like having the visitor present as an unbiased witness. Putting the visitor's testimony at the center of guardianship proceedings, however, has two problems. First, visitors err of the side of protecting the elder. A guardianship is their hammer, and soon every social problem involving elders begins to look like a nail. Secondly, visitors seldom spend significant time with the elder. Because of the unique position of the visitor, it often takes the testimony of several professionals and family caregivers--people who may have spent months or years with the elder--to overcome the testimony of a visitor who saw the elder for less than an hour.

The use of the visitor streamlines the guardianship process for the lawyer and the litigants, but the efficiency is not without costs. Any person contemplating a guardianship for an adult should talk frankly with his or her lawyer about how the visitor system works in the local court and what approach should be taken if the visitor does not support the guardianship.

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