Sunday, April 18, 2010

When to file a guardianship or conservatorhsip?

I have clients show up at my office saying that the folks at the care center or some service provider says their elder family member needs a guardian or conservator. They have come to me to start that process. My response is to ask what task are they trying to accomplish that cannot be done without the court order appointing a guardian. Who is standing in your way and saying you can't do what you want to do without court authority?

The fact is that a lot of elder care is done with a wink and a nod. People who are disabled with dementia enter contracts for long term care and live for long periods of time in care centers. Children take over the finances for their disabled parents using joint accounts or a power of attorney. Problems do occur—such as when the children clean out mom's account to buy drugs—but most of parent-child financial arrangements work out just fine.

(Elder financial abuse is real. Those who commit it need to be chased down and walloped many times with axe handles, but most children do not steal from their parents.)

I don't advise having a court appoint a guardian or conservator until there is no choice. If you get the call from Tuality Hospital telling you that grandma is being held in the geriatric psych unit and that they will not release her unless there is a court appointed guardian to make placement decisions, then your have to get yourself to the courthouse. If mother is sending all her money to internet scammers in Nigeria and the bank tells you that she is over twenty-one and can do whatever she wants, then it is time to go to the courthouse.

On the other hand, if your mother has dementia but is willing to go to a care center, you should talk to the people at the care center. Even is mother is not technically competent to understand all the fine print on the long term care contract, chances are she will be admitted anyway. Don't go to court unless there is no other choice.

If you talk to the people who work for the probate courts, you are likely to hear that the judges and others who work there are the last bastion of protection for the disabled and elderly. There is some truth to that, and in the bad cases the court plays a crucial role in protecting the vulnerable. On the other hand, the courts provide neither care nor money for care. The courts provide oversight, but at an enormous cost. Filing fees are significant and attorney fees make any trip to the courthouse an expensive proposition. The paperwork required to satisfy court oversight goes on and on. There exists a small cadre of attorneys, visitors, professional fiduciaries, and experts who make a living off the state court system for protecting the vulnerable. I am one of those. You do not want your mother's money going to keep all these people in business unless you have no choice.

There is an axiom in my business that the court ill not allow prophylactic protection in fiduciary proceedings. That is a fancy way of saying that the court will not appoint a guardian or conservator because the elder might need one in the future. The need must be immediate and serious. This should be your standard as well.

This is not to say that you shouldn't go see an Oregon elder law lawyer until you have hit the brick wall. A consultation with a lawyer early in the process can set you in the right direction and educate you about your real-life options. An elder law lawyer not only knows the law of guardianships and conservatorships, he or she knows local court procedures, how things work in practice (rather than in theory), and  the attitude toward various kinds of cases taken by the local probate court. Sometimes, knowing the personalities of the people who will be handling your legal paperwork is as important as knowing the law. It is well worth the money to get this kind of insider insight from a lawyer early in the process,

To sum it up, go to a lawyer at the first sign of trouble and go to court when you have no other choice.


  1. That was very informative. Thanks for sharing. In my opinion anything concerning the financial matters of parents and seeking guardianship for parents is a delicate matter, so it is a good thing that there are clear cut guidelines on this.

  2. If mother is sending all her money to internet scammers in Nigeria and the bank tells you that she is over twenty-one and can do whatever she wants, then it is time to go to the backup