Learn the what it means to be a Guardian or a Conservator.

Guardianship of an Adult

A guardian may be appointed for an adult person only as is necessary to promote and protect the well-being of the protected person.

A guardianship for an adult person must be designed 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. ORS 125.300(1).

Under Oregon law, a judge can appoint an adult to make important decisions about the care and well-being of another person. This is called a protective proceeding.

In a protective proceeding, a judge can appoint a guardian, a conservator or both. In an emergency, a judge can appoint a temporary guardian, a temporary conservator or both.

A judge may order action be taken on behalf of an adult without appointment of a guardian or conservator. This is called a protective order. Any adult can file a petition in court to have a guardian appointed for another person. Separate laws cover protective proceedings for adults and children.

1. What is a protected person?

You are called a protected person if you are an adult and have a guardian, conservator or both.

2. What is the purpose of a guardianship proceeding?

The focus of all participants in a guardianship proceeding should be to benefit and assist you in a manner that maximizes your self reliance and independence. The primary goal is to allow you to live your own life with as much dignity and personal liberty as possible.

The relationship between a guardian and a protected person is called a guardianship. Only a court can set up a guardianship.

3. What does incapacitated mean?

According to the law, you are considered incapacitated if you cannot make decisions well enough to get health care, food, shelter, and other care necessary to avoid serious physical injury or illness and, therefore, need continuing care and supervision. ORS 125.060 through ORS 125.080.

You may be legally incapacitated in some areas, but not in others. A guardianship should be limited so that your guardian is only given decision-making authority in the area that you are incapacitated. For example, a guardianship may apply only to medical treatment decisions.

4. What is a guardian?

A guardian is an adult appointed by a court to make important decisions for you about your care and well-being. You must be considered incapacitated to have a guardian appointed for you. If someone states that he or she is your guardian, there must be court papers that show this is true. If you are a protected person, you may contact the court and review the order of guardianship. Your guardianship should be tailored to meet your actual needs and therefore limit your guardian’s authority to make decisions for you to the specific areas in which the court determines you do not have capacity to do so yourself. If no limitations are specified, you are under a general guardianship.

5. Are there alternatives to guardianship?

Yes. Alternatives to guardianship should be considered in terms of whether they are in place or could be in place.

6. Can my guardianship order be limited?

Yes. Your guardianship order should be tailored to meet your actual mental and physical limitations so that the scope of your guardianship is the least restrictive possible. You may make a request for a limited guardianship and specify the areas over which you should be able to keep your decision-making authority.

7. How do I know I have a guardian?

If you have a guardian, then there must be a court order that states this is true. If someone is claiming to be your guardian, you can ask them to provide this documentation. Otherwise, you may contact the probate department of the Circuit Court where you live (or lived when you believe an order may have been put in place) to ask whether or not there is a guardianship order.

8. Is there an emergency guardianship proceeding?

Yes. A temporary guardian may be appointed by a court if you are found to be incapacitated, in immediate and serious danger to your life or health, and your welfare requires immediate action. You must meet all three criteria listed above in order for a temporary guardian to be appointed for you. The appointment can only be for a specific purpose and a specific time period (not more than 30 days). The court can extend the temporary guardianship for an additional 30 days.

9. Will I be notified that someone has petitioned the court to become my guardian?

Yes. No one can become your guardian unless you are given prior written notice and are given an opportunity to tell a judge why you do not need a guardian.

10. How do I object to a guardianship petition?

A guardianship proceeding is started by filing papers in court. Those papers are called a petition, and the person who files the petition is called the petitioner.

A petition for guardianship must state:

Who you are, and that you need a guardian
Why you need a guardian
Who should be your guardian and why he or she is qualified
Whether your guardian plans to put you in a care facility

You, the person named as needing a guardian, must be personally served with a copy of the petition.

Your close relatives must be mailed a copy of the petition. The Office of the Long Term Care Ombudsman (LTCO) must be mailed a copy of the petition if you live in, or your guardian intends to place you in, a nursing home or residential facility. Disability Rights Oregon (DRO) must be mailed a copy of the petition if you live in, or your guardian intends to place you in, a mental health treatment facility or a residential facility for individuals with developmental disabilities. All of the parties listed above must be given the opportunity to object to all or part of the petition.

11. How do I object to a guardianship petition?

You should be given a blue-colored form that explains your rights and includes three sentences that you can check to tell the court why you object to the petition. You are the respondent.

I object to the petition for the following reasons:

___ I do not want anyone else making any of my decisions for me.
___ I do not want [name of proposed guardian or conservator] making any decisions for me.
___ I do not want [name of proposed guardian or conservator] to make the following decisions for me:

You must sign and date your form. Also, you need to make sure that your objection form is received by the probate department of the court.

You also have the right to appear in court to be heard by a judge on these objections and to have an attorney’s assistance in the process.

Once someone files a petition for guardianship, the court will send an independent investigator, called a court visitor, to meet with you to verify whether or not you may need a guardian. The court visitor checks your home and talks with you. He or she will also talk with doctors, caregivers, and others who might have relevant information about whether you need a guardian. The court visitor also talks with the proposed guardian (or conservator) and others who might have relevant information about the qualifications and suitability of the proposed guardian (or conservator).

You should provide the court visitor with the names and contact information of people you believe have relevant information about your current decision-making capacity and/or about the suitability of the proposed guardian (or conservator). The court visitor writes a report to the court to tell the judge whether you need a guardian, and whether the person who wants to become your guardian is qualified, and the best person, to do so. ORS 125.150.

A judge decides whether to appoint a guardian after reviewing all information provided, including the report by the court visitor. If anyone objects to the guardianship, a hearing is held and the judge considers all of the evidence from this hearing. Judges can appoint a guardian for you only if you meet the legal definition of incapacitated. If you do not meet the definition, the case should be dismissed. ORS 125.305(a).

12. What are my rights if I have a guardian?

Even if you have a guardian, you keep all legal and civil rights provided by law except those that have been specifically granted to your guardian by the court. You keep the right to contact and hire an attorney and to have access to your own records.

Also, you maintain your right to vote. At any time, you may petition the court to have the guardianship ended or to have your guardian changed. You retain all of your civil rights, aside from authority specifically granted to your guardian by the judge. You can be admitted to a facility only if your guardian has been given authority to make placement decisions. This can only happen if the doctor or other professional from the facility agrees the admission is appropriate. You or anyone else may contact the court to object to the placement as not being in your best interest. Your guardian can be removed or replaced by the court if the court finds that doing so is best for you. A judge may end a guardianship if he or she decides that you have regained capacity to make your own decisions.

13. Can my medical provider give the court visitor my confidential medical information?

Your medical provider can release your confidential medical information to the court visitor only if you consent or if the provider is required to give the information by court order or subpoena.

14. Is a hearing required for a guardian to be appointed?

No. A hearing is not required unless objections are filed or a judge decides that a hearing is necessary.

15. Why does the determination of whether I am legally incapacitated matter?

If the judge determines that you are not legally incapacitated according to the strict legal definition, then the judge may not order that you have a guardian, and the case is dismissed.

16. How does a judge appoint a guardian?

A judge decides whether to appoint a guardian after reviewing the court visitor’s report and, if necessary, conducting a hearing. If the judge decides to appoint a guardian, then he or she will sign an order for guardianship.

This order becomes part of the court’s file that is kept by the probate department. The judge appoints a guardian only if he or she finds that you are incapacitated and need continuing care and supervision.

17. Do my personal values and beliefs matter in determining who will be appointed as my guardian?

Yes. Your personal preference should factor into the judge’s decision as to whom to appoint as your guardian. Your proposed guardian must be qualified, suitable and willing to serve. The court has a duty to appoint the most suitable person who is willing to serve as your guardian after giving consideration to your specific circumstances, your specific stated desires, as well as your relationship by blood or marriage to the proposed guardian.

18. If the judge determines I need a guardian, can the guardian’s ability to make decisions for me be limited?

Yes. Oregon law states that a guardian may be appointed for you only as is necessary to promote and protect your well-being. The guardianship should be ordered only to the extent that is necessitated by your actual mental and physical limitations. Therefore, the guardianship should be the least restrictive possible. A limited guardian may have one or more of the powers described
for a general guardian.

19. Can I appeal the judge’s decision to have a guardian appointed for me?

Yes. You can appeal the judge’s decision to have a guardian appointed for you.

20. What powers and duties does my guardian have?

Your guardian has only those powers given by the court. Generally, guardians make decisions in three primary areas: residential placement, health care, and general care and comfort. Your guardian should get as much input as possible from you prior to making decisions on your behalf. This includes finding out your opinions, desires and personal values.

When a guardian has all the powers allowed by law, this is called a general guardianship. A general guardian:

Decides where you live
Provides for your care, comfort and maintenance, including training and education
Takes care of your personal property, unless a conservator has been appointed
Makes health care decisions
Makes advance funeral and burial arrangements
Controls the disposition of your remains
Receives and spends your money for your support, care and education

Guardians also have a number of less important powers.

A guardian may not:

Authorize sterilization
Use your money to pay for room and board provided by the guardian or the guardian’s close relatives unless approved by the court
Put you in a mental health treatment facility, nursing home or residential facility unless the guardian gives prior written notice to the court, as well as to you and other interested parties, and gives you the opportunity to object and have a hearing
Your guardian must file a report with the court once each year describing how you are doing, how the guardianship powers have been used during the year, whether or not the guardianship should
be continued, and other information.

21. Do I retain any rights if I have a guardian?

Yes. Although a guardian may have been appointed for you, that does not mean you are presumed to be incompetent. You retain all legal and civil rights provided by law except those that have been expressly limited by court order or specifically granted to your guardian by the court.

For example, you retain the right to contact and seek representation by an attorney, and the right to have access to your personal records.

22. How long does a guardianship last?

A guardianship ends upon the death, resignation or removal of your guardian or when you pass away. A guardian may be removed by a judge when he or she finds this to be in your best interest.

23. Can a business provide guardianship services to families?

A person who acts as a guardian for three or more protected persons with whom he or she is not related is considered a professional fiduciary. A professional fiduciary must provide the judge with detailed information about his or her business and clients in order to be appointed.

24. What authority does the court have over me as a protected person?

The court may act upon the petition or motion of any person or on its own authority in any manner that the court deems appropriate to determine:

Your condition and welfare
The proper performance of your guardian or conservator

25. Can I get a different guardian or conservator?

Yes. However, you must get approval of the court, which will require that you follow the court procedures, including showing that the change is in your best interest. Oregon law gives preference to
a family member to act as guardian. Your choice of a replacement guardian or conservator must meet the court criteria and a new petition for the replacement guardian or conservator must be filed with the court.

26. Can I terminate my guardianship or conservatorship?

Yes, under specific circumstances. Your guardianship has been ordered by the court and lasts until your death, or until the guardianship is terminated by a court. To terminate your guardianship by court proceeding, send a letter to the probate court in the county that your guardianship proceeding took place. In the letter, state the following:

You want your guardianship terminated because you are able to make decisions for yourself and therefore are not incapacitated.
You have a medical professional who supports that you no longer need a guardian and who has written a letter to that effect. It is preferable if this letter is from a psychiatrist who can state that you have the capacity to make decisions about all matters given to your guardian by the court. (Enclose the letter.)
You would like the court visitor to investigate and make a report to the court.
You would like to have a hearing on the matter. (If your guardian agrees with you, enclose a statement of agreement from your guardian.)
You would like to request that the court appoint an attorney on the matter to represent you.

Then, the court visitor should interview you, your guardian and any other relevant people.

In the interview, present information that supports your belief that you do not need a guardian. Give the court visitor contact information for people you feel he or she should talk with regarding
your capacity to make decisions. Be sure to include your doctor’s contact information. The court visitor then files a report with the judge presiding over your guardianship proceedings.

In that report, the court visitor will state either that:

The evidence supports that your guardianship should be terminated because you are no longer incapacitated; or
The evidence supports that your guardianship should continue because you remain incapacitated.

The court visitor’s opinion is not definitive of whether or not the judge will find in your favor. However, his or her opinion will be considered by the judge and at a hearing. If your guardian agrees that the guardianship should be terminated, then a hearing may not be necessary.

If, however, your guardian disagrees, then a hearing should be held where you have a right to be present and to have an attorney. You have the right to contact an attorney and seek legal advice.
You may contact a private attorney who practices guardianship law.

You may also contact Disability Rights Oregon for information regarding guardianship termination, as well as other guardianship issues.

Source for the above: https://droregon.org/wp-content/uploads/Guardianship-Handbook-Third-Edition.pdf

Conservatorship of an Adult

(Jump to Guardianship of an Adult)

If an adult is unable to manage his or her finances (money, property, or business affairs) due to a disability, and the adult has not previously appointed a person to make financial decisions on his or her behalf, the Oregon court can step in and appoint a Conservator for the adult. In a Conservatorship, the disabled adult is called a Protected Person. The Conservator manages the Protected Person’s estate and directs funds for the adult’s care and support.

1. What is a Conservatorship?

A Conservatorship is a protective legal process in which the Oregon Probate Court may appoint a person called a Conservator, whose role is to marshal and manage the property of an individual who is (1) disabled and who requires a substitute financial decision maker either (2) to prevent the property from being wasted or dissipated or (3) so that the financial support, care, and welfare of the person is effectuated and managed.

2. How does a Conservatorship work?

The court-appointed Conservator is charged with the responsibility of managing the Protected Person’s income and assets. Any finances managed by the Conservator for the Protected Person needs to be segregated into accounts and titles reflecting the legal Conservatorship. No assets or income may flow through or be co-mingled with the Conservator’s own income or assets. In this way, the Protected Person’s property remains intact and easily distinguishable from the Conservator’s finances. From the Protected Person’s funds, the Conservator pays the Protected Person’s bills and otherwise manages his or her assets.

3. Who can be a Conservator?

There is a list of persons who have priority to be appointed by the Probate Court as Conservator for any particular individual. First is the Attorney in Fact nominated in the Protected Person’s Durable Power of Attorney. Second in the priority list is a fiduciary (e.g., a Guardian) already court-appointed for the benefit of the Protected Person. Third in the priority list would be a person nominated by the Protected Person. For good cause, the Court always has the ability to determine that the above individuals are not appropriate and therefore to appoint any other individual to act as a Conservator for the benefit of a Protected Person.

4. What does a Conservator do?

A Conservator is a court-appointed fiduciary who once appointed, has the authority to collect, hold and retain assets of the Protected Person’s estate. In addition, the Conservator has the duty to manage, allocate, and invest assets of the Protected Person, and to pay the debts and ongoing bills of the Protected Person. The Conservator may delegate the management of investments to an agent, but must exercise reasonable care and caution in appointing an agent (e.g., financial planner, accountant, broker, etc) and the Conservator is ultimately responsible for the proper management of the assets of the Protected Person.

5. If I become Conservator, am I personally financially responsible for the Protected Person?

No. The Conservator is not personally liable for Protected Person, but must pay all of the Protected Person’s expenses from the Protected Person’s income and assets. Again, it is vital that the Protected Person’s assets and income remain segregated from those of the Conservator, and that proper bookkeeping is kept by the Conservator.

6. What is the difference between a Power of Attorney and a Conservator?

A Durable Power of Attorney (POA) is a document in which a competent individual (the Principal) nominates whom he or she would want to manage assets and income should the Principal become incapacitated. In a Durable Power of Attorney, the Principal also can nominate whom he or she would want in place as a potential Guardian of the Person. By executing a Durable Power of Attorney, the individual generally is able to avoid the Court involvement and oversight required in a Conservatorship.

7. If I become Conservator, what are my responsibilities?

Once an individual is appointed by the Court to act as Conservator, she or he has the responsibility to file an Inventory with the Court within 90 days of the Court appointment. In addition, a Conservator’s Financial Plan must also be filed with the Probate Court. Furthermore, an annual Inventory is required to be filed for so long as you are serving as a Conservator.

8. If my friend/relative only receives Social Security benefits, is a Conservatorship necessary?

If an incapacitated individual’s only source of funds is Social Security benefits, then it is unnecessary for the Court to appoint a Conservator. Instead, the responsible person can apply through the Social Security Administration (SSA) to be appointed to act as the Representative Payee for their relative or friend. An individual who is appointed to act as a Representative Payee is then required to file an annual financial report directly with the SSA.

9. What is the legal process to obtain a Conservatorship?

In order to obtain a Conservator, an interested individual or agency must petition the Probate Court. A Bond for the proposed Conservator also must be on file with the Court. Notice is given to all interested persons as well as to the proposed Protected Person. A Court hearing date then is scheduled. The Judge then determines if the criteria to appoint a Conservator has been met, and if so, appoints the appropriate Conservator (see answer to # 3 above as to who can be a Conservator). A Conservator can be appointed either as a Temporary Conservator (for a period of no more than 90 days) or a Permanent Conservator. Hiring an attorney can be extremely helpful for all persons involved in order to facilitate/stream-line the court process of obtaining a Conservator.

10. What are the alternatives to a Conservatorship?

Alternatives to a Conservatorship include a Durable Power of Attorney, in which an individual nominates a potential substitute decision maker in case of his or her incapacity (see # 6 above). If the person under a disability receives only Social Security benefits, a Representative Payee can be appointed by the Social Security Agency (see # 8 above). Finally, if the disability does not impair the individual’s capacity too greatly, an independent bill payer can be hired by the family to write the checks and maintain the check ledger while the disabled individual retains check-signing authority. One other alternative, in the appropriate circumstances, a joint account can be set up for the sole purpose of the convenience of paying the disabled person’s bills.

Disclaimer. This website is maintained exclusively for informational purposes and does not constitute legal advice. Visitors to this web site who have a legal problem should always consult an attorney for legal advice. Viewing or using the information on the website does not create an attorney-client relationship.

Guardianship and Conservatorship