GAPS
(Guardianship, Advocacy & Planning Services)

The following information was written to assist families needing answers to guardianship questions. You should feel free to download it, or to contact The Arc of Oregon for printed copies. Additionally, families may recognize the need for planning the future for their sons or daughters, and The Arc of Oregon is ready to assist with that need. Please contact Elaine Friesen-Strang (GAPS Director)
Phone: (503) 241-2755 Email: elaine.strang@arcoregon.org

NOTE: This material is designed to provide accurate information about guardianship. It is furnished with the understanding that The Arc of Oregon and the GAPS program are not engaged in rendering legal, financial or other professional services. If legal advice or other expert assistance is required, the services of an appropriate professional should be sought.

The Arc of Oregon's Guardianship, Advocacy and Planning Services (GAPS) program has compiled the following information to assist in answering frequently asked questions about guardianship. Where appropriate, the specific Oregon Revised Statute (ORS) or Oregon Administrative Rule (OAR) has been cited for easy reference.

If you are interested in receiving this material in larger print for easier reading, please contact The Arc of Oregon office: info@arcoregon.org.

ANY QUESTIONS OR COMMENTS ? (info@arcoregon.org)


WHAT IS GUARDIANSHIP?

TYPES OF GUARDIANSHIP

CONSERVATORSHIP

THE PROCESS FOR OBTAINING GUARDIANSHIP

GUARDIANSHIP RESPONSIBILITIES

COMMON REASONS FOR SEEKING GUARDIANSHIP

REASONS FOR NOT SEEKING GUARDIANSHIP

RESOURCES

DEFINITIONS

ACKNOWLEDGEMENTS



WHAT IS GUARDIANSHIP? Index

The concept of guardianship originated during the centuries-old feudal period in England . At that time, the King assumed all responsibility for protecting persons thought to be unable to advocate on their own behalf. Guardianship law in America evolved in the late 19th and early 20th centuries. States continue to modify or significantly reform these laws to reflect new attitudes, philosophies, and knowledge. The Oregon legislature recently consolidated and organized guardianship laws so they are more logical and easier to use and added needed rights and protections for persons at risk of guardianship. The new laws became effective January 1, 1996 . Questions about current requirements of a guardian appointed before January 1, 1996 , can be directed to the probate court and/or commissioner(s) in the county where the guardian was appointed.

Guardianship for an adult can be awarded only through a court of law. It is a court-approved, legal relationship between a competent adult called a "fiduciary" or "guardian" and an incapacitated adult called a "protected person." (Prior to January 1, 1996, the incapacitated adult was called a "ward.")

In Oregon , parents are recognized as the natural guardians of their children, disabled and non-disabled, until the children reach the age of majority, which is 18. At the time children reach the age of majority, their parents' natural guardianship ceases by law, whether or not the children have a disability. Thus, any person attaining the age of 18 is recognized as a competent adult by law, and remains so unless found incapacitated by a court of law.

A person can be found to be incapacitated under Oregon Revised Statute (ORS) 125.005 if s/he is an adult whose "...ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person's physical health or safety. 'Meeting the essential requirements for physical health and safety' means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur."

Under Oregon law, ORS 125.300 (1), guardianship is to be used for an incapacitated person only "... as is necessary to promote and protect the well-being of the protected person. A guardianship for an adult person must be designated to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person's actual mental and physical limitations."

Under ORS 125.300 (2) and (3) "An adult protected person for whom a guardian has been appointed is not presumed to be incompetent. A protected person retains all legal and civil rights provided by law except those that have been expressly limited by court order or specifically granted to the guardian by the court. Rights retained by the person include but are not limited to the right to contact and retain counsel and to have access to personal records."

Guardianship is a legal way for assisting the person indefinitely or until s/he is no longer incapacitated. For some people, the following lesser restrictive options may offer appropriate support:

• Appointing their own health care representative (covered in ORS 127.505-127.660)
• Having a health care representative appointed by the individual support plan (ISP) team under the Oregon Administrative Rules (OAR 309-041-1500 to 309-041-1610/available only to someone living in a 24 hour residential facility or receiving supported living services*)
• Giving power of attorney to another individual
• Having a conservator appointed
• Offering different support services
• Assigning someone as advocate

For other individuals, either a limited or full guardian may be needed for most decisions. There are some decisions, however, such as consent to sterilization which cannot be made by a guardian (ORS 125.320) under any circumstances.

*For information on an ISP appointed health care representative in your local county, contact case management at the county Mental Health Department.

TYPES OF GUARDIANSHIP Index

There are three types of guardianship recognized under Oregon law: temporary (which includes provisions for emergency guardianships), limited, and full. Each has a different scope of authority. Local courts may vary in the extent to which these different forms of guardianship are granted and utilized. This is why it may be beneficial to seek the services of a local attorney who will be familiar with the specific procedures of the court where the guardianship petition will be filed. (See The Process for Obtaining Guardianship for determining the proper county in which to file the guardianship.)

Temporary and Emergency Guardianship

A temporary guardianship is limited to a specific purpose and for a time period of up to 30 days (with a 30-day extension possible). This may be used in an emergency medical or dental situation if less restrictive means are not available.

The notice of a proposed temporary guardianship must be given or sent to the same list of people and in the same manner as for non-emergency guardianship proceedings. (See The Process for Obtaining Guardianship—Serving Notice.) The notice must be given at least two days prior to the appointment of a temporary guardian unless the court finds that there is immediate and serious danger that requires the immediate appointment of a guardian.

A petition requesting an emergency temporary guardianship must specify why there is immediate and serious danger to the life or health of the proposed protected person and that the welfare of the proposed protected person requires immediate action. The usual required notice before the appointment is made may be waived by the court for an emergency guardianship. The notice is then required within two days after the appointment is made.

The court will appoint a visitor who will conduct an interview with the proposed protected person within three days and write a report within five days after the appointment of a temporary guardian. Any objections will be heard by the court within two working days after the date the objections were filed.

The appointed temporary guardian has access to those records and information that are related specifically to the purpose for which the temporary guardianship was awarded. The temporary guardian must report to the court as to what action(s) s/he has taken when the guardian’s duties are completed, the temporary appointment expires, or the court orders the termination of the appointment. A temporary guardian who becomes a permanent guardian (through additional legal action) may include this information in the first annual court report.

Limited Guardianship

Filing for a limited guardianship is a legal process for a guardian to be appointed to act on behalf of a protected person in areas such as where the person lives (including in or outside of Oregon ), medical care and treatment, or other areas which the court has specified.

It is generally accepted that limited rather than full guardianship should be used to the maximum extent possible. For example, a court will limit the guardian’s authority to health care decision making if a protected person needs assistance in making health care decisions, but not in making decisions about where s/he works or engages in leisure activities.

Full Guardianship

A full guardian has full decision-making authority. A guardian can determine, for example, medical care and treatment; also, a guardian has control over where the protected person lives and works. Under ORS 125.300 (3), however, a protected person retains all legal and civil rights not specifically limited by the court, including the right to contact an attorney, the right to have access to personal records, and the right to vote. There is no competency requirement for voting in the State of Oregon .

Additionally, if a protected person resides in a facility licensed by the State of Oregon (such as a group home serving persons with disabilities), that individual’s guardian is assured the rights identified under Oregon Administrative Rules and Oregon Revised Statute 430.210. The guardian, for example, may become a member of the Individual Service Plan (ISP) team.

CONSERVATORSHIP Index

Filing for a conservatorship is a legal process for a person or appropriate financial institution to be appointed to manage an individual's financial affairs. A conservator may make any decisions that the protected person could make if not disabled except creating a Will.

An individual does not need to have a guardian in order for a conservator to be appointed. Rather, it must be determined only that the court finds by "clear and convincing evidence" that a person is "financially incapable" and that the person has money or property that requires management or protection.

"Financially incapable" is defined in the Oregon Statutes as "a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental deficiency, physical illness or disability, chronic use of drugs of controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. ‘Manage financial resources’ means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income." The individual remains free to make personal, non-financial decisions, and the conservator makes the financial decisions.

A conservator may not be necessary if an individual with an appointed guardian is receiving only a monthly Social Security and/or Supplemental Security Income benefit and has money and property totaling less than $10,000. In some cases, if a person has large financial resources, a conservator may be appointed when someone is seeking guardianship of that person.

THE PROCESS FOR OBTAINING GUARDIANSHIP Index

Costs for obtaining a guardianship may vary a great deal depending on filing fees, the court visitor's fee and legal fees. Consulting several attorneys who specialize in guardianship and requesting specific cost information may be helpful if the services of an attorney are desired.

The following information describes the process for limited and full guardianships. Refer to previous information under Types of Guardianship for a brief summary of the procedures for temporary and emergency guardianships.

Filing the petition

A petition to the court must be filed in the county where the proposed protected person lives. The assistance of an attorney can be enlisted in the preparation of a guardianship petition. The attorney does not need to be located in the protected person's county; however, it may be more convenient and less costly if s/he practices in the same county as the proposed protected person lives.

The petition must specify the request to appoint a guardian and must include any limitations of the guardian's powers. It will also include information such as the name, age, and address of the proposed protected person; name, age, and address of the petitioner; the name of the proposed guardian; any treating physician’s name; and the factual information that supports the request for the guardianship.

The revised guardianship laws of January 1, 1996 , require that the petition include a statement as to whether the proposed guardian has had any past criminal convictions, cancellation of any occupational licenses or bankruptcy proceedings. The future guardian must also indicate whether s/he intends to place the proposed protected person into a mental health treatment facility, a nursing home or other residential facility. (After the guardianship appointment, the guardian must still file a statement informing the court of any intention to make a placement into one of these facilities if the need arises at a later date.) The petition must also list any income and assets of the proposed protected person if the future guardian plans to assume financial control.

Serving notice

After the petition is filed with the court, notice must be personally delivered to the proposed protected person stating that a petition for the appointment of a guardian has been filed. The notice must be presented so that the person receiving it can understand it, and it must be served at least 15 days before the final date for filing objections to the petition.

The notice will list the rights of the proposed protected person (rights which were expanded under the January 1, 1996, laws) and include the right to be represented by an attorney, to file a written OR oral objection, to request a hearing, to present evidence and cross-examine witnesses at any hearing, to request at any time that the power of the guardian be limited by the court, and to request at any time to remove the guardian or to change the protective order.

The notice will include information about the petitioner, a copy of the petition, a statement on where objections may be made or filed, the deadline for making or filing objections, and information about a hearing (if one has been set).

The notice must be sent to others entitled to receive notice at least 15 days before the final date for filing objections to the guardianship petition. Others entitled to receive notice include the following:

• The spouse, parents and adult children of the proposed protected person
• The person or persons most closely related to the proposed protected person if there is no spouse, parents or adult children
• Any person living with the proposed protected person and interested in her/his affairs or welfare
• Any person already nominated or appointed to act as a fiduciary (such as a conservator) by a court of any state
• Any trustee of a trust established by or for the proposed protected person
• Any person appointed as a health care representative under ORS 127.505-127.660
• Anyone acting under a power of attorney from the proposed protected person
• The Department of Veterans Affairs if the proposed protected person is receiving money through that government agency
• Any other person the court requires to be notified

Objections to the petition may be either written or oral. (The designated way to present an oral objection will be defined by each local court.) Anyone not on the original list to receive future notices may inform the court and the proposed guardian in writing that s/he would like to receive copies of future filings in this case. The request to the court must include name, address, phone number and payment of any applicable fees.

The Court Visitor

A third party, called a visitor, will be appointed by the court. The visitor must not have any personal interest in the case, must have training or expertise to enable her/him to evaluate the abilities and needs of the named person and may not be the one to serve the guardianship notice to the proposed protected person.

The visitor will interview the proposed guardian, the proposed protected person, and any others with relevant information. Within 15 days of the court visitor appointment, a written report is to be submitted to the court with recommendations regarding the appropriateness of guardianship and the suitability of the proposed guardian. Additional time may be allowed to file the visitor's report at the discretion of the court. Anyone (including persons on the list of those entitled to receive notice) wanting a copy of the visitor's report must file a specific request for a copy.

The court considers the information contained in the petition and the visitor's report to determine the following:

• Whether the proposed protected person is incapacitated in the areas outlined in the petition
• Whether the appointment of a guardian is necessary
• Whether the proposed guardian (identified in the petition) is qualified and willing to serve
• Whether any limitations should be place on the guardian
• Whether there is a need for further evaluation

After the Court Visitor

If the court decides that the protected person needs a guardian and that the proposed guardian is the best one, it will write the guardianship order appointing the fiduciary or guardian. If the court feels it does not have enough information, the information conflicts, or there are objections filed, it will hold a hearing.

At the time of the hearing, evidence will be presented to the judge. The proposed protected person can request an attorney from the court. Both sides can call witnesses and bring evidence. The judge will then decide if the proposed protected person needs a guardian, who will be the guardian, and what will be the specific responsibilities of the guardian.

After the Appointment of a Guardian

Once a guardianship order is signed by the judge, it remains in effect indefinitely, or until the protected person or other interested party successfully petitions to have the guardianship terminated, the judge terminates the guardianship, or the guardian (with court approval) resigns. The exception is temporary guardianship, which lasts 30 days with a possible extension of an additional 30 days.

When a petition to remove a guardian is filed, revised January 1, 1996 , laws place the burden on the guardian to show that the protected person continues to be incapacitated. (ORS 125.090 [1])

A judge may remove a guardian without a petition if s/he determines that "the best interests of the protected person would be served by termination of the proceedings." (ORS 125.090 [2][e]) It may be possible that a protected person continues to be incapacitated, that the current guardian is not serving in the protected person’s best interest, and that the judge terminates the guardianship.

At any time after the appointment of a guardian, the court may appoint a visitor. The visitor may perform any duty that s/he would have performed at the time the guardianship petition was originally filed including interviewing people, examining records, reporting to the court in writing, and being present at any hearings.

A guardian may resign at any time with the approval of the court. If the guardian resigns or is removed, a successor guardian may be appointed, unless the protected person successfully shows, in the same proceeding, that s/he is no longer incapacitated.

When a Guardian Dies

A guardian may inform the court through her/his Last Will and Testament (also known as a testamentary nomination) who s/he wishes to be guardian following the testator’s death. In Oregon , the courts give special consideration to the person testamentarily nominated, although the person ultimately selected must be both willing and capable of serving and must be found by the court to be fit to serve.

GUARDIAN RESPONSIBILITIES Index

The guardian is responsible for promoting independence and assisting the individual to continue to grow toward taking charge of her/his own affairs.

A guardian is empowered to establish where the protected person lives (including in or out of the state) and to provide for her/his care, comfort, and maintenance. The need to move a protected person to a mental health facility, a nursing home, or other residential facility may arise after the guardian has been appointed. The revisions of January 1, 1996 , require that the guardian must file a statement with the court if the need to move a protected person arises after the guardianship has been established. The statement should be filed before the move is made.

The guardian may consent, refuse to consent, or withhold consent to health care (subject to provisions of the Advance Directives for Health Care in ORS 127.505-127.660) and to control the protected person's finances if no conservator has been appointed. Effective January 1, 1996, the guardian must obtain court approval before taking money belonging to the protected person for board and room or paying any of the guardian's close relatives (including a spouse, parent or child) for the protected person's care. The guardian may make advance funeral and burial arrangements. The guardian is not liable to third persons for acts of the protected person solely by reason of the guardian/protected person relationship.

Two frequently asked questions include: "As guardian am I (or would I be) liable for medical bills?" or "Does the protected person have to come live with me?" Under usual circumstances the answer to both questions is no.

The guardian has implicit responsibility to protect the protected person from exploitation, abuse, and neglect. Failure to do so could result in the guardian being held liable for failure to fulfill properly the responsibilities of guardianship. Further, by accepting appointment as the guardian, the guardian personally submits to the jurisdiction of the court in any matters relating to the guardianship. The guardian must promptly notify the court if s/he has any change in name, residence, or post office address.

The guardian is required to submit to the court an annual report, called Guardian's Report, of her/his activities on behalf of the protected person. January 1, 1996 , revisions require a notarized annual report be submitted to the court and to the protected person. Guardians must disclose in the Guardian's Report any information about their personal convictions, license revocations and bankruptcy filings, any of which might reveal a conflict of interest with the protected person.

All guardians must report information in the Guardian's Report such as their own present address and phone, the protected person's present address and phone, a description of where the protected person lives (such as, her/his own home, a group home, foster home), activities, programs and services in which the protected person is involved and other information. Financial reporting (if there is not a conservator) is also required.

The report must be sent within 30 days of each anniversary of the guardianship. Standard guardianship report forms are available from stores that sell legal forms. Failure to submit an annual report to the court may result in the removal of the guardian.

COMMON REASONS FOR SEEKING GUARDIANSHIP Index

There are a number of factors that may lead parents or others interested in the welfare of adults with developmental disabilities to seek guardianship. Perhaps the most common for parents is the desire to establish some control over their child's life. They may fear that their child is incapable of acting responsibly, or they may wish to exert what they feel is a positive influence over their adult child. Unfortunately, this is not always a valid or even an effective reason for establishing guardianship. Although legal authority is established upon the appointment of a guardian, the legal mechanism in itself cannot prohibit the protected person from acting as s/he pleases.

Another common reason for establishing guardianship is to create substitute decision-making authority in case the protected person is unable to give informed consent. Consent is generally considered to be valid only if it is given by someone capable of recognizing the potential ramifications of her/his decision.

This dilemma often arises in medical situations in which physicians and other health care professionals are placed in the legally sensitive position of treating a person of questionable capacity and asking her/him to give informed consent. Some physicians, in this situation, will accept consent only from an adult, legally empowered by appointment as guardian, to provide substitute consent on behalf of the individual. The appointment of a health care representative either by the individual or by the ISP team may be desirable and/or preferable over the expense of obtaining a guardianship. (The laws governing the appointment and responsibilities of a health care representative are contained in ORS 127.505-127.660 for a self appointed health care representative and OAR 309-041-1500 to 309-041-1610 for an ISP team appointed health care representative.)

Parents may also seek guardianship in order to control their son's or daughter's finances. They may fear the potential of an unscrupulous person taking advantage of her/him. They may also be concerned that s/he may make impulsive or unwise purchases without fully realizing the consequences of her/his actions. Financial protection alone is generally an insufficient motive for establishing guardianship given the protected person's loss of fundamental rights when guardianship is ordered.

If an individual's assets consist primarily of payments from Supplemental Security Income, Social Security, or other sources of governmental support, a representative payeeship might be most appropriate. This is a mechanism which authorizes one person to receive payments allotted to another person who is deemed incapable of handling them properly. The Social Security Administration, Veterans Administration and some private pension plans have created payee provisions. Under payeeship, a person is not declared by the court to be incapable of handling her/his property. S/he remains legally capable of controlling all of her/his property and assets, except those subject to payeeship.

Still other parents may petition for guardianship in hopes they may gain increased authority to demand better and more appropriate services for their daughter or son. This may or may not be an effective strategy, depending on a number of factors outside of the guardianship itself, such as the overall relationship between parents and service providers. Guardianship does allow access to a protected person's records, and that fact alone may be a driving force for parents to seek guardianship.

REASONS FOR NOT SEEKING GUARDIANSHIP Index

Whether or not an individual needs a guardian depends on many factors. Perhaps the most significant is the individual's ability to give informed consent in certain situations. This involves the capability to recognize elements inherent in a given decision, to choose from among several options, to understand the consequences of an action, and to accept the responsibility for the decision made. Clearly, there are large numbers of persons with developmental disabilities who are capable of independently making, or significantly participating in, many decisions that affect them. The imposition of guardianship can greatly reduce or eliminate this freedom to participate by transferring decision-making powers to the guardian.

Even those persons who are apparently unable to make significant decisions on their own may not require guardianship if they have trusted support from family, friends or interested others who are willing and available to counsel them. Unless they are totally incapable of giving input to decisions which affect them, persons with developmental disabilities are likely to benefit from assistance and counseling which is less formal than guardianship, thereby retaining their essential civil rights while still benefiting from the guidance of those who care.

It is now widely recognized that persons with developmental disabilities are capable of increasing their potential throughout their lives, particularly if they are allowed to do so in ways which are least restrictive to their ability to exercise their personal liberties. For the vast majority of individuals, this means living in a supportive community environment where they are able to learn from a variety of social situations. This learning process may provide a knowledge base sufficient to decrease the need for guardianship.

RESOURCES Index

There are a variety of advocacy and family support resources in Oregon available to assist parents, family members, and other interested parties. Local county mental health programs serving people with developmental disabilities may be able to supply resource information. Contact your local Arc for information for services in your area. Questions, or requests for printed copies of this material, may also be directed to the GAPS program at The Arc of Oregon, 1745 State Street , Salem , OR 97301 . The phone number is (503) 581-2726.

DEFINITIONS Index

Fiduciary --a guardian or conservator appointed under the Oregon Revised Statutes or any other person appointed by a court to assume duties with respect to a protected person. (ORS 125.005)

Financially incapable --"a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental deficiency, physical illness or disability, chronic use of drugs of controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. ‘Manage financial resources’ means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income." (ORS 125.005)

Incapacitated --"a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety. ‘Meeting the essential requirements for physical health and safety’ means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur." (ORS 125.005)

ISP team or individual support plan team --is composed of the individual, the case manager, the individual’s legal guardian, representatives of all current service providers, advocate or others determined appropriate by the individual receiving services. If the individual is unable or does not express a preference, other appropriate team membership shall be determined by the ISP team members. (OAR 309-41-405)

OAR-- Oregon Administrative Rules

ORS-- Oregon Revised Statutes. If ORS’s and OAR’s are in conflict, the ORS’s override the OAR’S.

Protected person-- Effective January 1, 1996 , "a person for whom a protective order (such as a guardianship or conservatorship) has been entered." (ORS 125.005) Prior to January 1, 1996 ,--"a minor or other person for whom a conservator had been appointed or other protective order made."

Respondent --a person for whom a protective order is sought; a proposed protected person. (ORS 125.005)

Testator --a person who has made a will.

Ward --used prior to January 1, 1996 , to designate a person for whom a guardian had been appointed. Effective January 1, 1996 , a ward is now referred to as "protected person."

ACKNOWLEDGMENTS Index

This revision was completed in November of 1996, and updates the original booklet of 1993. GAPS (Guardianship, Advocacy, and Planning Services) is a program of The Arc of Oregon, 1745 State Street , Salem , Oregon 97301 .

The Arc of Oregon and GAPS would like to acknowledge those who have made this revision possible:

Tom Keating , John Murren, Elaine Friesen-Strang, Marty McKeon, Adele Ray Lewis,Geri Newton,

who compiled and edited the original 1993 booklet

Finally, we appreciate the many family members and friends of individuals with developmental disabilities who have inspired the creation and subsequent updating of this booklet, and all the people who continue to support The Arc and the GAPS program.

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