Tuesday, February 5, 2013

How long does it take to get a guardianship or conservatorship in Oregon?

I often advise clients not to seek a guardianship or conservatorship until it becomes absolutely necessary. The court process is expensive and cumbersome, so I tell clients that going to court should be the last resort. The result of this advice is that when families finally decide to seek a guardianship they want it quickly. Their first question is how long will it take.

In the courthouse where I practice, guardianships and conservatorships are called protective proceedings. They are called this because they protect vulnerable elders. There are three different procedures for getting protection from the court: the standard, the speedy, and the super speedy. The faster I have to get the protection, the more difficult and expensive the legal procedure is. Most clients opt for the standard and that is what I discuss in this article

The Time Estimates for a Standard Guardianship or Conservatorship

    The first step in obtaining a guardianship or conservatorship is finding and selecting an Oregon elder law attorney.  If you work at it, this should take about four days. Once you have selected an attorney you will need to provide him or her with a lot of information about the elder and his family. It will take you three days to get this information together--usually by filling out a form provided by the lawyer. While you are getting this information, the lawyer has work to do. If you are asking to be appointed a conservator, your lawyer will check and see if the bonding companies will bond you. If you asking that a professional guardian or conservator be appointed, the lawyer will spend time convincing one of them to take your case. All of this should get done in the first week, at which time the lawyer will be ready to write the petition that will be submitted to the court.

    The lawyer might take three business days to write the petition. Then you come in to read it and make corrections. The next day the lawyer can file the case. You will have a case number and are approximately eleven days into the process.

Within a day or so of filing the case the lawyer will have a process server personally hand the disabled elder a copy of the petition and a thick sheaf of documents advising the elder of his right to object and his right to be represented by an attorney. At the same time the lawyer will mail a copy of the petition to the adult children of the elder, the State of Oregon and a few other people. Those people also have the right to object. If anyone objects, all bets are off, the case will be significantly delayed, and the case will have gone beyond what I can write about in this column.

Once the elder is personally served with the petition and the notices have been mailed, you and your lawyer wait for fifteen days for somebody to object. If it is a guardianship the fifteen days is used to obtain and review the report from the court visitor. If the court visitor agrees that the elder needs protection you are on your way. If the court visitor has a problem with what you want to do, there will be a delay while the court looks at the matter more closely. If it is a conservatorship, the attorney will secure the bond. If you are seeking both a guardianship and a conservatorship, you will have to deal with both a visitors report and a bond.  On the sixteenth day after service of the petition on the elder, the attorney may apply to the court for a judgment. We are now at day twenty-seven.

The speed at which a court processes a judgment and issues letters of guardianship or conservatorship varies by county. I will estimate a week as the normal time it takes for the court to do its part. We are now at day thirty-four. It has take slightly more than a month to go from deciding that a protective proceeding is necessary to having a court order in hand.

The schedule I describe is optimal and depends upon both the lawyer and the client attending to their duties promptly. If the elder or any other interested person files an objection the matter will be delayed as the matter is set for hearing or mediation.

Sometimes thirty-four days is too long. In that case the elder law lawyer uses an expedited process to obtain a temporary protective order. A temporary protective order lasts only thirty days but it offers protection for the elder while the lawyer takes the steps to obtain a permanent one the regular way. My next post will examine how long it takes to have a guardian or conservator appointed in an emergency.

1 comment:

  1. What do you do when you have an emergency and not the funds to hire an attorney or go through the expenses involved? This system is broken. It only allows this to be done if the person is very financially able.