Tuesday, December 1, 2009

Oregon Elder Law: What is a guardianship and what must I do to get a guardian appointed in Oregon.

The Oregon courts will appoint a guardian when a cognitively impaired elder is making life style choices that put him or her in physical danger. Often a guardian is appointed to place an impaired elder in a long term care facility. The appointment of a guardian is an even more severe infringement on personal rights than the appointment of a conservator. A conservator controls only money. A guardian can agree to medical procedures and determine where the elder will live. Thus, the protections for the elder in a guardianship proceeding are even greater than in a conservatorship.

To appoint a guardian, a court must have convincing evidence that the elder's ability to evaluate information is so impaired that the elder cannot manage nutrition, personal hygiene and other basic health care needs. The court must also find that without the appointment of a guardian serious injury or death is likely to result. Thus, the need for a guardian is partially dependent upon the situation in which the elder lives. The court is much more likely to find a threat of serious injury in the cases of an elder living alone than in cases of an elder living among family or in a long term care center. As in a proceeding for a conservator, the elder has the right to copies of the documents filed with the court, has a right to object, and the right to an attorney.

When a family member seeks the appointment of a guardian, the court will appoint what is called a "visitor," to talk to the elder, his family and his care givers. The visitor is the eyes and the ears of the court. The visitor will interview the interested parties and report to the judge, giving his or her opinion as to whether a guardianship is warranted and whether the person seeking to be guardian is an appropriate surrogate decision maker. The costs of the visitor are paid by the person filing the guardianship papers.

If no one files an objection and the court visitor reports that the the proposed guardian in an appropriate choice, the court may order a guardianship opened without a court hearing. If the elder or other family members object, there may have to be a hearing in which evidence is presented by both sides. If a guardian is appointed, the guardian will be required to report once a year to the court on the condition of the elder.

6 comments:

  1. It is unfortunate I find that so-called guardianship leaves every aspect of contact with former family and friends to the judgement of the guardian. If there are any personal issues between the guardian and another close family friend or family member, the guardian can, at will, disallow contact of the elderly person with anyone they cared for and loved in the past, based on the guardian's personal agenda. I find the laws do not take these matters into consideration. Human rights are out the window. Very sad.

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    Replies
    1. California Superior court chose a stranger, professional fiduciary over a daughter as my mother's conservator and as Trustee of the family Trust because apparently being able to plop down 50 bucks for a license carries more weight than a daughter's birth certificate.

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  2. We have a mentally ill mother who is refusing treatment from medical professionals. She has exceeded the care capabilities of her assisted living facility and the state has advised that she be evicted since she is bursting into the apartments of other residents and causing a great amount of trouble. They have suggested we acquire guardianship. We are not educated in this, but know that it is the only way to get her to the care that she needs. Does guardianship make us liable for her expenses? Where do we start?

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  3. Can a guardian of an Oregon elder live out of the state of Oregon?

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