Monday, May 20, 2013

Obtaining an emergency guardianship or conservatorship in Oregon

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.

1 comment:

  1. 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. personal injury lawyer Edinburgh