There a significant number of factors to consider when thinking about guardianship. Answers to many common questions are listed here:
What is guardianship?
A guardian is an individual or organization named by an order of the court to exercise any or all powers and rights over a person who has been determined to lack the ability to make and then act upon personal decisions on their own behalf. The court grants the guardian the authority to make decisions, which may include:
- Medical treatment
- Residential placement
- Education and vocational needs
- Other issues
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". Guardianship is subject to the supervision of the court.
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."
Further, ORS 125.300 states, "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 to assist the person indefinitely or until he or she is no longer incapacitated. It should be considered only after less restrictive alternatives have been evaluated and determined not appropriate to meet the person's needs.
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*)
- Having a representative payee or 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. (See Restrictions on Guardianships)
Who needs a guardian?
There are two major groups of people that may demonstrate the need for guardianship:
- persons who are aged with decisional disabilities
- persons who have a developmental disability
In addition, individuals with mental illness, head injuries or a significant illness many require guardianship if they are unable to make and communicate decisions about their personal care.
The fact that a person has a mental disability does not automatically dictate a need for guardianship. The test for determining the need for guardianship focuses on the ability of the person to make decisions and to communicate decisions once made. Making incorrect or ill-advised decisions on a periodic basis is not the test. Rather, it is an inability to engage in the decision-making in the first place which is important.
Questions to consider:
- Does the person understand that a particular decision needs to be made?
- Does the person understand the options available in any decision?
- Does the person understand the consequences of each option?
- Is the person able to properly inform appropriate parties once the decision has been made?
An individual may need guardianship services if he or she cannot make sound decisions about where to live and work, how and when to seek medical care or other professional services, how to properly care for dependents or how to purchase items such as food and clothing.
Why might a person need a guardian?
There may be different reasons why an individual with a developmental disability may need a guardian. Some common reasons are:
- The person cannot adequately manage personal assets. Someone is needed to ensure the assets are secure and used for the intended purpose.
- The person needs medical care or other services that will not be provided unless there is a clear understanding about the person's legal capacity to consent to treatment or services. Health and service providers are becoming more concerned about liabilities when providing services to someone who may not have the capacity to make an informed consent for services.
- Parents or siblings cannot get access to important records or provide other help without guardianship. As a legal adult, a person with developmental disabilities must often give consent for the release of health and other records to parents or others. Health and service providers unsure of the person's ability to give consent may require documentation of the person's legal capacity before allowing access to records without the person's consent. (Note: The recent implementation of the federal law, the Health Insurance Portability and Accountability Act, or HIPAA, creates new and significant penalties for health care providers and others who release records without approved consent of the patient or client.)
- An individual with developmental disabilities may require the help of an advocate—someone who has a legal status or relationship to that person.
How do I determine if my son or daughter needs a guardian?
In many cases, there are no easy answers to this question. In addition to considering your son or daughter's decision-making competency, a parent should consider medical needs, residential issues and need for advocacy assistance. Individuals with similar abilities may require different levels of intervention and assistance, depending on their family involvement, living situations and available supports.
Questions for parents to consider to determine the need for a guardian:
- What is your son or daughter's ability to understand questions and communicate answers?
- Does your son or daughter have a sense of consequences? Given support and objective assistance, can he or she make a decision based on knowledge of the situation?
- Can your son or daughter express personal wishes and preferences? Is he or she living in a residence where these preferences are respected?
- Does your son or daughter have a sense what is needed for his or her own well-being?
- What are the medical needs of your son or daughter? Can he or she understand basic treatment decisions? Will medical professionals accept his or her signature for consents? Will you have difficulty obtaining necessary medical information?
- Have you considered less restrictive alternatives?
What are the types of guardianship?
There are three types of guardianship recognized under Oregon law:
- Temporary and emergency guardianship
- Limited guardianship
- Full 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. 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 court may waive the usual required notice before the appointment is made 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. The court will hear any objections 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 of the temporary guardianship. The temporary guardian must report to the court as to what action(s) he or she 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.
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 that 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 he or she works or engages in leisure activities.
A full guardian has full, decision-making authority. A guardian can determine, for example, medical care and treatment; and 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 ensured the rights identified under Oregon Administrative Rules and ORS 430.210. The guardian, for example, may become a member of the Individual Service Plan (ISP) team.
What is the process for obtaining a guardianship?
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. Costs for obtaining a guardianship may vary a great deal depending on filing fees, the court visitor's fee and legal fees. The Arc recommends that a petitioner consult an attorney who specializes in guardianship.
Steps for Obtaining Limited and Full Guardianships
1. Filing the Petition
A petition to the court must be filed in the county where the respondent (the proposed protected person) lives. The assistance of an attorney is most often enlisted in the preparation of a guardianship petition. The attorney does not need to be located in the respondent's county. However, it may be more convenient and less costly if the attorney practices in the county where the proposed protected person lives.
The petition must specify the request to appoint a guardian. It must include information such as:
- Name, age, and address of the respondent
- Name, age, and address of the petitioner
- Name of the proposed guardian
- Treating physician's name(s)
- Care provider(s)
- Factual information that supports the request for the guardianship
- Any limitations of the guardian's powers
The petition should 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 he or she intends to place the respondent 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 also includes a general description of the estate of the respondent, sources and amount of income. If the proposed guardian seeks to exercise any control over the estate of the respondent, there is additional information that is required. ORS 125.055 details the information that is to be included in the petition
2. Serving Notice
After the petition is filed with the court, notice must be 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, printed in 14 point type, and it must be served at least 15 days before the final date for filing objections to the petition.
The notice will include the name, address and telephone number of the petitioner or the person making the motion and their relationship of the petitioner to the respondent. Additionally, the notice will include a statement where objections may be made or filed and the deadline for making an objection. If a hearing has been set, that information will also be included. A copy of the petition must be enclosed. Additional requirements regarding this notice can be found in ORS 125.070.
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 he or she 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.
3. The Court Visitor
The court will appoint a third party, called a visitor. The visitor must not have any personal interest in the case, must have training or expertise 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 specificrequest 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 placed on the guardian
- Whether there is a need for further evaluation
Fees for the court visitor vary from county to county. In Multnomah County there is a set fee, but in many other counties, the visitor's fee in determined by an hourly rate.
4. After the Court Visitor
If there are no objections and the court decides that the respondent needs a guardian and that the proposed guardian is the best one, it will write the guardianship order appointing the fiduciary or guardian. A hearing will be held if the court feels it does not have enough information, the information conflicts, or there are objections filed.
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 the guardian's specific responsibilities.
5. After the Appointment of a Guardian
After determining the need for guardianship and the qualifications of the nominated person, the court will make a guardianship order that defines the restrictions and powers of the guardianship. A copy of the order must be attached to the Letter of Guardianship issued by the court. ORS 125.310 specifies the format to be used. The court may require that the guardian post bond.
Once the judge signs a guardianship order, 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.
A judge may remove a guardian without a petition with the determination that "the best interests of the protected person would be served by termination of the proceedings." (ORS 125.090 [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 he or she would have performed at the time the guardianship petition was originally filed. This could include 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 he or she is no longer incapacitated.
6. When a Guardian Dies
A guardian may inform the court through his or her Last Will and Testament (also known as a testamentary nomination) who he or she wishes to be guardian following the testator's (guardian'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.
Who may be a guardian?
Any person at least 18 years of age, who is able to make informed decisions, who has not been convicted of a serious crime, and is acceptable to the court, may be named guardian of an adult with disabilities. The court may also appoint an agency, public, or private fiduciary.
What are the guardian's responsibilities?
- Except as limited in the court order, the guardian has custody of the protected person and determines where he or she lives. ORS 125.315 (3) states before a guardian may place an adult protected person in a residential care facility or mental health treatment facility, the guardian must file a statement with the court informing the court the guardian intends to make the placement. A copy must be given to the protected person, and anyone else entitled to receive such notices, indicating the manner in which the protected person may object to the proposed move. If the protected person lives in a nursing home or residential facility, a notice must also be sent to the Long Term Care Ombudsman. If the protected person lives in a mental health treatment facility or a facility for individuals with developmental disabilities, the notice must be sent toDisability Rights Oregon, which is the system in Oregon that is designated to protect and advocate for the rights of individuals with intellectual/developmental disabilities and/or mental illness. For more information regarding this notice, consult your attorney or the Oregon State Statutes.
- The guardian provides for the care, comfort and maintenance of the protected person and as appropriate, arranges for his or her training and education. The guardian shall take reasonable care of the protected person's clothing, furniture, and other personal effects unless a conservator has been appointed.
- Subject to certain statutory restrictions, the guardian may authorize medical decisions on behalf of the protected person. The guardian should seek to carry out the wishes of the protected person, or if they are not known, the guardian should act in the best interest of the protected person. A guardian may not authorize sterilization of a protected person.
- The guardian may make burial and funeral arrangements. Pursuant to ORS 97.130, the guardian may control the disposition of the remains of the protected person and subject to the provisions of ORS 97.954, the guardian may make an anatomical gift of all or part of the protected person's body.
- The guardian may receive nominal sums of money on behalf of the protected person to pay for care, support and education of the protected person. The guardian must take care not to become involved in financial conflicts of interest. The person's funds may not be used to pay the guardian for providing services or to pay legal fees and court costs pertaining to the guardianship unless previously approved by the court.
- A guardian must make an annual report to the court within 30 days of the anniversary date of the establishment of the guardianship. Copies of this report must be given to the protected person and any other person/agency entitled to this report. This report and further details may be found in ORS 125.325.
- The guardian must promptly notify the court if he or she has any change in name, residence, or post office address.
The Court has the discretion to grant a guardianship with restrictions. In that case, the appointed guardian's authority is limited to the areas that the Court outlines as necessary. Some decisions that the Court may decline to include in the appointment of a guardian's authority are: living arrangements, consenting to medical treatment, hospitalization or institutionalization, participation in lawsuits, property management and real estate transactions, payment or collection of debts, or creation of a will.
A guardian may not authorize the sterilization of the protected person. If a surgery is necessary for medical reasons that may result in sterilization, this procedure must be reviewed by DisbalityRights Oregon before consent can be given. In some cases, two medical opinions may be required.
The Court looks at each individual's unique situation and tries to impose only those conditions that are absolutely necessary to maintain that individual's well being.
Some individuals require assistance with both personal care and estate management. In Oregon, the primary responsibility of the guardian is to provide consent for issues such as medical treatment and living situation. A Conservator can be appointed the responsibility of managing the property and income of the protected person.
Guardianship is a long-term engagement between the Court, the appointed guardian, and the protected person. The court may modify, revoke, or terminate the guardianship if the protected person's situation changes, including revocation of the guardianship if the protected person's ability to make and communicate decisions is demonstrated to the court.
What are the standards for a good guardian?
The guardian is responsible for promoting independence and assisting the individual to continue to grow toward taking charge of his or her affairs. Decisions made on the protected person's behalf should be based on his or her preferences as much as possible. In addition, the guardian has implicit responsibility to protect the protected person from exploitation, abuse, and neglect.
In the early 1990s, the National Guardianship Association (NGA), a newly formed group of professional guardians, advocates and others, adopted a code of ethics and standards of practices to help guide professionals and parents on issues that guardians face, and how to respond to these issues in the day-to-day role of guardian. These standards have been continually reviewed and updated, and today comprise 24 different standards covering areas such as informed consent, confidentiality, conflict of interest, and self-determination. While many of these standards may be more germane to professional guardians, family members may want to review these standards, which may help provide guidance in undertaking the role of guardian.
For a copy of the NGA's Standards of Practice from their Web site go to www.guardianship.org.
Are there alternatives to guardianship?
Before pursuing guardianship, family members should first consider using less intrusive measures. For example, someone who lives alone and has trouble managing money may not need a legal guardian. The person may only need a restricted bank account and the occasional visit of a case manager, family member or other trusted person for help in budgeting money and paying bills.
Alternatives to guardianship include:
- Representative Payee
- Joint Bank Account
- Trust Account
These do not always carry the "legal weight" of guardianship. Instead, they may only legally protect the person or property to a limited degree, or are non-legal services or options that may meet the individual's needs instead of legal guardianship. It is a good idea to consult with a knowledgeable attorney experienced in disability issues to make sure alternate plans do not inadvertently jeopardize government benefits or create other legal problems.
Some individuals with disabilities receive government, military and other benefits. They usually receive these benefits by check made payable to the recipient. Many individuals with developmental disabilities can manage this money. However, others may not have good money management skills or are vulnerable to exploitation by others.
The administrator of these benefits, such as the Social Security Administration (SSA), may sometimes assign a representative payee for a recipient of these benefits. This payee receives and distributes the benefits when the individual with mental retardation cannot manage the check. In some cases, family members serve as Representative Payees. However, in many instances non-governmental organizations (i.e., public guardian offices, community mental health centers, clubhouses, or even for-profit companies) serve as Representative Payees. The payee must regularly account to the benefit's administration on the use of the benefit check, and is liable to repay money if it is mismanaged.
The decision to assign a representative payee to someone is usually based on non-legal documents such as a doctor's report. Contact your local SSA office or administration office of other benefits for more information on the representative payee system. For more information, go to SSA's web site www.ssa.gov/payee.
Joint Bank Account
Most banks can assist with creating a bank account to help manage money. For example, benefit checks can be directly deposited and certain bills automatically paid. It may also be possible for spending money to be sent regularly to the individual from his or her account. A joint bank account can help an individual manage money and prevent excessive expenditures.
Setting up a trust may protect money or other property from being overspent or mismanaged. A carefully written, restricted trust may provide financial protections that relieve the need for other legal protections such as guardianship.
A Conservatorship is a formal method of managing and protecting the income and assets of a minor or a person who is incapable. Conservatorship is appointed and supervised by the Probate Court.