Guardianship is a legal arrangement in which an incapacitated individual, known as a protected person, is placed under the supervision of another person, known as a Guardian. Guardians are appointed by the court and given broad legal authority to make medical decisions, arrange for appropriate care, and determine the appropriate living situation for the protected person.
The need for guardianship arises when an individual is unable to meet the basic requirements for health and safety due to physical or cognitive impairments. If the person does not have an Advance Directive authorizing a Health Care Representative to make medical decisions and arrange for necessary care, guardianship provides the legal authority necessary to do so.
In some cases, guardianship is necessary even when an Advance Directive is in place. A Health Care Representative under an Advance Directive cannot override the stated wishes of the person who signed the document. So, for example, if an incapacitated spouse or parent needs care in a nursing facility but refuses to be placed there, guardianship will be required to make the placement. Unlike an Advance Directive, which is a voluntary grant of decision-making authority from one person to another, guardianship is an involuntary grant of decision-making authority by a court. In cases where medical treatment, medications, or placement in a facility are necessary for a person’s health and safety but are being refused, only guardianship provides the necessary legal authority.
Becoming a guardian requires a formal Petition to the court. The Petition sets forth the factual basis for guardianship and states that the proposed protected person is “incapacitated.” Under Oregon law, “incapacitated” is defined as:
“[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.”
In deciding whether to appoint a guardian for someone, the court considers information from doctors, mental health professionals, care providers, and family members. The court appoints a neutral third party known as a “Court Visitor” who communicates with all relevant parties and prepares a report for the court containing recommendations for or against guardianship.
When a Petition for Appointment of a Guardian is filed, copies of the Petition must be provided to the incapacitated person and to certain family members, public agencies, and other individuals. These individuals and organizations are given 15 days to consider the Petition and file objections. If no one objects during the 15-day notice period, the court enters a Judgment appointing a guardian. If objections are filed, the court holds a hearing to decide whether guardianship is necessary and, if so, whether the person nominated to serve as guardian is an appropriate candidate. After the hearing, the court enters a Judgment.
A guardian is responsible for the care, comfort and maintenance of the protected person. That responsibility includes deciding where the protected person should live and what type of care and treatment the person should receive. A guardian is responsible for arranging medical appointments, ensuring the protected person’s compliance with medication and other treatment plans, and advocating for the protected person with doctors, care providers, and others. If the protected person requires long-term care, the guardian is responsible for locating an appropriate long-term care facility and monitoring the care provided. A guardian is required to prepare and file an annual Guardian’s Report with the court describing the protected person’s medical condition, activities, treatment plans, and placement.
At Edgel Law Group, we regularly represent those seeking guardianship for a loved one, as well as those who object to the appointment of a guardian. We are well-versed in the law of guardianship and have deep experience counseling our clients, preparing legal pleadings, and representing our clients in court. Call us today: