In a previous post
I set out the time periods for getting a guardianship or
conservatorship in Oregon. Sometimes, however, emergencies arise. The
elder may be in physical danger or money may be lost. In these cases the
family may want to get help from the courts on an emergency basis. In
this post I discuss the time periods for getting an expedited
guardianship or conservatorship in Oregon.
The
first thing to determine is whether the emergency order is really
necessary. One of my local judges recently observed that to get an
emergency order the lawyer will have to put all his other work aside and
commit himself solely to the emergency case for two or three days. That
is expensive for the family. The work should be undertaken only when
the result warrants the extra cost.
The law allows a temporary guardian
to be appointed on an expedited basis when there is an " immediate and
serious danger to the life or health" of the elder and that immediate
action is required. Courts interpret this rule differently but no matter
what court you are in, you need a strong case that the elder is
incapacitated and immediate action is necessary. A temporary order
denies the elder several rights as a citizen that we have all come to
accept as central to being an American. The courts do not hand out these
temporary protective orders lightly.
The law allows a temporary conservator
to be appointed when "there is an immediate and serious danger to the
estate" of the elder and a conservator could stop the bleeding. In these
cases, I want to have strong evidence that the elder's money is
currently flying or is about to fly out the door. The evidence comes in
the form of the sworn petition signed by a family member and written
statements from witnesses with knowledge of the situation.
An
emergency temporary guardianship or conservatorship lasts thirty days
and can be extended by an additional thirty days. In most cases the
endangered elder needs temporary protection and permanent protection.
Consequently the petition for the temporary guardian or conservator is
prepared along with a petition for a permanent guardian or conservator.
That way the waiting periods that apply to the permanent guardianship can be running while the temporary one is in effect.
When
the temporary and permanent petition are written and signed, they are
both filed with the court along with the required filing fee. If the
request is for a guardian, the court may also require payment of a fee
for the court visitor
to investigate the family. Copies of both petitions, along with all the
warnings and explanations that legally must accompany guardianship
petitions, are then personally served by a process server on the elder.
After being served, the elder has two days to object.
If
the elder does not object within the two days, I go to court and
attempt to convince the judge that all the underlying legal work is
correct and that a temporary guardian or conservator should be
appointed. In some counties, I appear in person before a judge along
with my client and the court visitor. In other counties, I go alone to
the probate clerk with my documents and the visitors report. If I am
asking that a conservator be appointed, I bring to this meeting a bond for
the estimated amount of money held by the elder. If all goes well the
judge agrees that protection is necessary and a temporary guardian or
conservator is appointed for thirty days.
I
can seldom get a guardianship without giving the elder two days written
notice of the petition, but sometimes in conservatorship cases two days
notice would allow the bad guys to get away with the money. I explain
this to the judge, and if the judge is convinced, I get a
conservatorship appointed without notice. I then have two days in which
to serve the elder with the papers. By that time, however, I may have
been able to freeze the bank account or otherwise protect the money.
If
the elder files an objection, a hearing is held within two days. This
is not a full hearing, but simply a short hearing to determine whether
the temporary protection should continue.
If
an emergency temporary guardian or conservator is appointed, she will
have the power to protect the elder for thirty days. During that time
the objection period for the permanent guardianship or conservatorship
will be running. If no objection is filed to that proceeding, I will
submit a permanent order while the temporary one is still in effect.
This will provide continuous and uninterrupted care for the elder. If I
can't get a permanent order in place within thirty days, I can get the
temporary order extended for another thirty days.
If
at any time after the temporary order is in place, the elder or some
other family member files an objection to either the permanent or the
temporary, then the next steps will depend on the docketing procedures
that apply at the courthouse where the petition was filed. Those
procedures are different for every court. As a client you are best
served by having a lawyer familiar with the rules in the courthouse
where you have filed.
Getting
a temporary guardianship or conservatorship is a lot of work.
Sometimes, however, the danger is such that it is very much worth it.
Families should not attempt to get temporary orders when they are not
really needed, but neither should they hesitate when the welfare or the
wealth of the elder is truly in danger.
