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RICHARD B. SCHNEIDER
OREGON ESTATE PLANNING ATTORNEY
As the life expectancy for Americans continues to increase, so do some of the age-related illnesses and conditions that come with living longer. For example, statistics tell us that the risk of developing Alzheimer's disease doubles approximately every five years. While statistics such as this can be frightening on a personal level, facing a dementia related illnesses is often even harder when the victim is a parent or other elderly loved one. Knowing when to step in and seek guardianship and/or conservatorship is frequently a heart-wrenching process; however, failing to step in can create an even greater risk of injury to your loved one.
By 2025 an estimated 7 million seniors over the age of 65 will have Alzheimers What these figures should tell you is that if you are currently faced with the decision to seek guardianship and/or conservatorship over an elderly loved one you are not alone. Millions of family members and loved ones are facing the same difficult decisions that you are right now.
WHAT IS GUARDIANSHIP?
A guardianship proceeding is a legal proceeding that allows you to petition to be the guardian of a protected person. In this case, the protected person would be your elderly family member or loved one. As guardian, you would have legal authority and control over the protected person himself or herself. Your responsibilities as guardian are to make daily decisions for the protected person regarding things such as where the individual will live, what doctor he or she will treat with, and what activities the protected person will engage in from day to day. Oregon law allows a guardian to be appointed only to the extent necessary to promote and protect the well-being of the protected person. This means that your duties and responsibilities as guardian may be extensive or minimal depending on the physical and mental limitations of the protected person. Just because an individual has a guardian does not mean that he or she is no longer allowed to make any independent decisions nor does is it mean that a court has adjudicated the individual incompetent.
WHAT IS CONSERVATORSHIP?
A conservatorship proceeding is very similar to a guardianship proceeding except that a conservator is given legal control and authority over the estate of the protected person, not over the protected person himself. In other words, as conservator you would be responsible for the protected persons bank accounts, investments, real property, and personal property. Property is not legally transferred into the conservators name. Instead, the conservator has a fiduciary duty to protect the assets for the protected person. As is the case with a guardianship, just because a conservator has been appointed does not mean that the protected person is no longer able to retain control over some portion of his or her own funds; however, the conservator may be responsible for determining how much money the protected person needs access to on a daily basis. Also similar to guardianship, the court may grant extensive powers or very limited powers to a conservator depending on the specific facts and circumstances.
WHAT IS INCAPACITY?
In order for a court to appoint a guardian and/or conservator for someone the court must first be convinced that the person is incapacitated. ORS 125.005 defines incapacitated as:
a condition in which a persons ability to receive and evaluate information effectively or communicate
decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirement for the persons physical health or safety.
Appointing a guardian or conservator is not something that a court takes lightly. Although it does not completely strip the protected person of his or her rights, independence, and freedom, it is a decision that has very serious consequences for both the protected person and the guardian/conservator. As such, the court will need to be convinced that the proposed protected person meets the legal definition of incapacity by evidence presented in the petition or at a hearing.
planning attorney will assist you prepare the necessary documents. The petition must allege facts that support the appointment of a guardian and/or conservator. The proposed protected person must be notified of the petition and has a right to object to the appointment. In addition, other family member such as a spouse and adult children must also be notified of the proceedings. The court will typically order an assessment and evaluation of the proposed protected person which will include a recommendation. If an objection to the proposed guardianship and/or conservatorship is filed, the court will schedule a hearing. At the hearing, you will need to present evidence sufficient to convince the judge that the proposed protected person is incapacitated and that you are an appropriate guardian/conservator.
Making the decision to seek guardianship and/or conservatorship is likely one of the most difficult decisions you will make during your lifetime; however, failing to make the decision could leave your loved one vulnerable to injury or victimization by unscrupulous scam artists and swindlers who prey on the elderly. Along with consulting your loved ones healthcare providers, take the time to consult your estate planning attorney if you are concerned that a family member or loved one is in need of a guardian or conservator.
REFERENCES
OregonLaws.org, General powers and duties of guardian OregonLaws.org, Power of conservator over property of protected person Guardian/Conservator Association of Oregon, Serving as Guardian of Conservator ALZ.Org, Alzheimers Facts and Figures