What is Guardianship in Oregon?
Legal guardianship in Oregon is a legal term that refers to the formal authority given to an individual or organization to care for another person and their assets. Oregon uses the term changes the legal terminology to be gender-neutral, while other jurisdictions may refer to it as guardianship of the person or guardianship of the property.
There are two primary types of guardianship in Oregon. Each serves a slightly different purpose: of a person (also called conservatorship) – who may be a child or an adult of the estate – for which a guardian is appointed to manage the financial affairs of a minor or legally incompetent adult.
The purpose of legal guardianship in Oregon is to provide oversight for those who cannot protect or manage themselves or their affairs. From a child’s perspective, this could be due to the death, abandonment, or incapacity of both parents. Guardianship also could be granted to provide oversight for matters relating to health and financial issues for disabled adults.
Some reasons a legal guardianship may be required in Oregon include: Parents are deceased, incapacitated, or absent – If either or both parents are deceased, then a guardian may be needed for the child. If the parents are incapacitated, or one parent is missing, this can also cause a child to need a guardian. The child is abandoned – A child that is abandoned by their parents may require guardianship. The child is abused or neglected – If authorities determine that a child may be suffering abuse or neglect , a legal guardianship may be required. The child is acting in a manner harmful to him- or herself – If a child is engaging in risk-taking, criminal, or otherwise harmful behavior, guardianship may be needed to protect the child. An adult becomes incapacitated – A legal guardianship may be required to assist an adult who has become incapacitated due to injury, illness, dementia, or some other cause if the adult does not have other legal protections or assistance in place.
It is important to note that a legal guardian is different from other legal caretakers, such as a conservator, a trustee, or a conservatee. A legal guardian has the legal authority to make decisions on behalf of a minor or incapacitated adult. A conservator is an individual (other than a guardian or committee) who is appointed by the court to manage the assets of a minor child or an adult who does not have the capacity to oversee their assets. Conservatorship differs from legal guardianship in that it focuses on the management of assets rather than being a broad decision-making responsibility.
Some other terms are important to know when considering or seeking guardianship. A ward is an individual for whom a guardian has been appointed. A committee is an individual appointed by a court to have charge of the property of a legally incompetent individual. Finally, "incapacitated" means a person exhibiting functional impairment or mental/behavioral impairment that leads to the inability to perform personally or manage property without it creating a threat of harm to the individual’s health, safety, or finances.
Different Types of Guardianships
There are several different types of legal guardianship available in Oregon. The type of guardianship that is appropriate for your situation will depend on the age of the individual to be placed under guardianship and the specific needs and circumstances of the minor or adult.
Guardianship of a Minor
Before obtaining legal guardianship of a minor child you must prove that the child’s natural parents cannot for some reason provide proper care for him or her. If you are a step-parent who has regularly acted as the child’s father or mother and the child’s natural parent has died or is not acting in that role, you may be able to successfully petition the court for guardianship of the child.
Guardianship of an Adult
Legal guardianship of an adult can also be established in various situations. For example, if an individual with diminished faculties, possibly as the result of age or illness, is unable to care for themselves, such as an elderly sibling, a friend or family member may ask the court to appoint an adult guardian to care for the individual. If the individual is not able (or chooses not to) refuse the petition for legal guardianship, this is a relatively straightforward process provided you prove that the court’s appointment of a legal guardian is in the elderly person’s best interest. In other cases, however, there may be a considerable amount of conflict about who should be granted legal guardianship. In other words, two (or more) siblings may disagree as to who should take responsibility for the care of an elderly parent, or a parent with legal guardianship of a child may be challenged by the child’s grandparent, resulting in more complicated proceedings.
Temporary Guardianship
In certain situations the law allows a temporary guardianship of a minor child to be put in place. A temporary guardianship may be pursued if, for example, a parent leaves town for an extended period of time for work and cannot properly care for his or her child. A temp guardianship may also be put in place if the child’s parent is temporarily, but not permanently, unable to care for the child. Like legal guardianships, temporary guardianships require a court to rule on whether it is in the child’s best interest that a temp legal guardian be put in place.
Emergency Guardianship
Pursuant to Oregon Administrative Order 09-219, if someone feels that there is an emergency situation where an adult is unable to care for themselves and lacks capacity, an emergency guardianship can be put in place on an ex parte basis. An emergency guardianship order is limited to 60-days and is the only remedy for an immediate emergency physical problem with the individual to whom the guardian is being appointed.
How to Establish a Guardianship
The process of establishing a legal Guardianship is initiated by filing a petition in the Circuit Court. The adult child will likely be the petitioner in the case. The child must file a Petition to Establish a Guardian, and that petition must provide the name of the child needing a guardian, the name of the person or organization proposed to be the guardian, and the name of any conservator for the child’s estate, if one has already been appointed. A notice of hearing must be given to the child and a hearing must be held before a judge. The judge must decide that the parent is unable to care for the child, and a guardian must be appointed. The judge can appoint a guardian for a specified period of time, or he or she can appoint for the child’s lifetime.
The judge is required to consider the child’s preferences as well as the preferences of any appointed guardian. The judge will also examine the competency of the proposed guardian or organization to consider their fitness to be a guardian. If the proposed guardian has a felony record, there are even stricter requirements, because of the great responsibility associated with guardianship over an adult child.
If the child has enough capacity to understand the guardian appointment process, the judge will examine the child’s ability to give a petition to the guardian. However, Guardianships cases are not jury trials. If the child does not want the petitioner to be the guardian, the judge may appoint an attorney for the child. Be aware, though, that in Oregon, the child cannot select the attorney for the purpose of getting his or her preferences entered into court.
After the judge’s appointment, he or she will continue to review the progress of the family. The parents will be required to show progress in the areas addressed in the protective proceeding (which is the part in which a guardian has been appointed). If you appeal the decision of the judge, the six month waiting period will be postponed.
Guardian’s Rights and Responsibilities
A guardian in Oregon has specific legal responsibilities and rights that are established upon their appointment by the Court. A guardian is given authority over the person or estate or both of the protected person. But this authority is not absolute. In fact, by law, a guardian may only act within the authority granted to them by the Order of Appointment and within any limitations or restrictions stated in the Order.
The primary responsibility of a guardian appointed over the person (as opposed to the estate) is to act in the best interest of the protected person. This "best interest of the protected person" standard is the legal foundation for the decisions the guardian makes on behalf of the protected person. A guardian must also take care to avoid any decisions that may be inconsistent with the protected person’s expressed wishes if the protected person has the ability to express them (Oregon Uniform Guardianship and Protective Proceedings Jurisdiction Act ORS 125.005(2)(c) and (40)). If the protected person does not have the ability to express their wishes, the guardian has a duty to make decisions consistent with the protected person’s known personal values id the protected person had the ability to express them (ORS 125.455(3)(a)). While not the guardian’s sole authority, this Standard to act in the best interest of the protected person whenever possible and to consider the protected person’s expressed wishes and personal values, guides every decision a guardian must consider when making decisions on behalf of the protected person.
The powers of a guardian are outlined in the Order of Appointment signed by the Judge and will be specific to the facts of each case. The following powers are generally granted to the guardian over the protected person’s estate:
The powers of the guardian over the person of the protected person are outlined in the Oregon Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act ("UGPPA"), specifically ORS 125.455. When the Judge appoints a guardian over the person of a protected person, several powers will automatically be granted. These powers include:
When necessary, a guardian may petition the Court for other powers.
Challenging a Guardianship
I receive calls on a daily basis from people asking about moving forward with the challenge of a guardian. There is some confusion as to how to do this.
There is no "challenge," in the sense that you think someone should not be guardian, so you ask the judge to remove that person and select someone else. Rather, the process is to file a lawsuit seeking to become guardian yourself: to put your own name on the certificate of appointment.
The lawsuit also seeks to have the challenged person removed. In Oregon the judge does not have to remove the current guardian, nor does the judge have to appoint you as the new guardian.
Remove and appoint are two separate legal issues. The judge can remove a guardian without appointing anyone. Oscar-winning actress Patricia Neal did that, when she sued to have her late husband’s 40-year-old girlfriend ousted from her mother-in-law’s property. Having established that the young woman was unfit to be guardian for Griffith’s mother, the court ruled that Neal’s mother-in-law could choose someone else to be guardian.
The judge may or may not grant a hearing on the petition to be appointed guardian, and then may or may not appoint you if the hearing goes forward.
The judge has discretion to limit the evidence at the hearing, and he or she may decide you don’t have to be present . The judge could, for example, rule that he/she will consider only the court record to decide whether to remove the current guardian; then roll up your hearing on whether to be appointed guardian into the later hearing.
There is a form for petitions when you want to challenge a fiduciary. Forms like this are drafted by court employees and are not always complete or clear. Your petition document needs to refer to specific violations of your rights as a family member, or violations of specific statutes or rules.
The time limits for contesting termination of parental rights, contested guardianship proceedings, and appeals involving contested guardianships are all very specific. Here are the laws for these three areas.
Challenge of a guardianship: ORS 125.240 (1) and (2). The text is here. ORS 125.240(2) tells you what information you need to put in your petition to get a hearing to challenge the appointment of the guardian.
Oregon process for challenging adults’ ability to care for themselves: ORS 125.235. The text is here. This law does not focus on who would be the appropriate guardian, but rather focuses on what is the least restrictive environment for the person.
Challenge of termination of parental rights: ORS 419B.498. The text is here.
Challenge of guardianship of a person under age 18: ORS 419B.154 – 156. The text is here. ORS 419B.156(1) tells you what information you need to put in your petition to get a hearing to challenge the appointment of the guardian. Yes, it’s a lot of information.
Guardianship in Estate Planning
The relationship between guardianship and estate planning is significant in Oregon. An estate plan may include a consideration of how guardianship fits in to your future plans or may anticipate that a guardianship may be needed as part of your estate plan. If a guardianship is needed it may be necessary to incorporate it into your estate plan, either by creating a guardianship panel that is created by your estate planning documents or by working with the guardian to incorporate it.
At the outset, it should be noted that there are durable powers of attorney that can be set up in advance, including for financial and healthcare matters. There may also be a living will and a directive for healthcare representation.
While these documents can accomplish many things, they may not fully address all of the potential scenarios relating to incapacity. The durable powers of attorney may be limited in scope, while the living will and healthcare representation directive may address some, but not all, of the incapacity issues. When these estate planning documents do not cover some of the incapacity concerns, a guardian may be needed.
An example as to why a guardianship may be necessary will help bring this abstract analysis into focus. For example, assume the durable power of attorney gives the agent authority to do everything a person could do for property purposes, but nothing for healthcare purposes. And assume further that the living will states that the person does or does not want life sustaining measures initiated in a particular scenario. One problem that could arise is that there may be a dispute between the agent and the healthcare representative on whether life sustaining measures should be undertaken. If the agent has no authority for healthcare issues, then the agent’s power may be limited. Conversely, if the healthcare representation does not cover the situation at hand, the healthcare representative may not have enough authority to make the decision. This is just one example of how certain guardianship concerns may fit into the overall plan.
As the expanded definition of guardianship is now a part of the statutory framework in Oregon, the guardianship discussion is an important one for estate planning to consider.
Other Resources to Support Oregon’s Guardians
Grasping the complexities of legal guardianship often requires assistance. Fortunately, several resources are available in Oregon to help guardians navigate their responsibilities with greater ease and confidence. By tapping into these local organizations, legal support, and community groups, guardians can ensure they stay informed and connected to other like-minded individuals. One crucial resource is the Oregon Department of Human Services (DHS), which employs specialists in guardianship and conservatorship. These professionals understand the intricacies of the legal system and can provide information on the requirements for guardianship, help answer questions, and guide you through the appropriate processes, should the need arise. Local organizations such as the Portland Guardianship Association offer workshops and informational sessions for guardians. These groups create a space where people can share experiences, ask questions, or simply learn from others who have gone before them. The Portland Guardianship Association, for example, posts upcoming events with a list of general topics covered to help you determine if it’s right for you before you attend. For those living in rural areas, you might not have access to a local guardianship association. In this case , you can check with your county’s senior center where they may have information about local support groups and resources for the elderly and their guardians. Legal assistance is also available through community organizations like Legal Aid Services of Oregon. While most legal aid services work with low-income clients, they may be able to provide guidance for individuals in financial distress. A quick call or email could help you determine if their services are a good match for your needs. In addition to traditional resources, modern technology has also made it easier to find what you need. Numerous blogs, podcasts, and video channels offer insights into legal guardianship. From firsthand accounts to informational videos explaining the guardianship process, social media and online communities have become incredibly valuable to those navigating this terrain. Finally, never underestimate the power of a good support group. Connecting with individuals who have been there, done that, and lived to tell the tale could make you feel less isolated, boost your morale, and help you gain valuable insights. Often, these groups are among the most invaluable supportive resources for those in the trenches of guardianship. In summary, several resources exist to help you as you navigate the responsibilities of guardianship in Oregon. Community organizations, state resources, online blogs, and even social media can help you adjust to your new role and ensure the needs of your loved one are met.