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Many of us have loved ones with developmental disabilities, such as Down Syndrome, or aging-related disabilities, such as dementia. While we wish to help our loved ones be as independent as possible, there are times when we realize our loved ones do not have the capacity to make informed decisions on housing, finances, healthcare, or other adult responsibilities or to communicate those decisions. There are a number of ways to protect our loved ones in these times and still maintain their dignity and independence as much as possible.

What is a Guardian?

    A guardian is a person appointed by a court to make decisions for a person who the court has determined is incapacitated (the protected person). The guardian can be given full authority to make all decisions for the protected person including healthcare, where the protected person lives, and financial decisions (if the protected person’s assets/income have minimal value), much like the authority of a parent.

Alternatively, the guardian’s authority can be limited to specific areas where the protected person cannot make decisions, allowing the protected person to make some decisions for himself or herself. The exact authority of the guardian is determined by the court’s judgment appointing the guardian. The protected person does not have the legal authority to make whatever decisions the guardian is given authority over, but the guardian must always consider the protected person’s wishes in making decisions.

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Who needs a Guardian?

Under Oregon law, a person is incapacitated, and thus needs a guardian, when his or her “ability to receive and evaluate information effectively or to communicate decisions” is so impaired he or she cannot make and communicate decisions or take 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.” ORS 125.005(5).

A diagnosed disability or other impairment does not automatically make a person incapacitated. The individual’s ability to receive and evaluate information or to communicate decisions must be sufficiently impaired to prevent the individual from meeting their own basic needs for health and safety. Similarly, if an individual has the ability to receive and evaluate information effectively and communicate decisions, they are not incapacitated, regardless of making bad choices, refusing to accept help, or refusing necessary medical treatment.

If an individual has $10,000 or more worth of assets, the court will likely require a conservator in addition to the guardian.

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How much does guardianship cost?

Most families and caregivers are already in stressful emotional and financial situations when they reach the point of considering a guardianship. To help ease that burden, we make prices as low and predictable as we can. The following are our rates for guardianships:

  • $1,500 for an uncontested, non-emergency guardianship;
  • $2,300 for an uncontested temporary/emergency and permanent guardianship;
  • Additional fees and costs at an hourly rate for any contested guardianship. Final cost in a contested guardianship will depend on the amount of time required to respond to the objection(s).

In cases where the respondent has $10,000 or more in assets a conservatorship is needed in addition to the guardianship. To help limit costs for families, we offer both services in one package. The following are our rates for guardianships and conservatorships together:

  • $1,600 plus actual costs (e.g. filing fees, court visitor fees, and bond premium) for an uncontested, non-emergency guardianship and conservatorship;
  • $2,200 plus actual costs (e.g. filing fees, court visitor fees, and bond premium) for an uncontested, temporary/emergency and permanent guardianship and conservatorship;
  • Additional fees and costs at an hourly rate for any contested guardianship and conservatorship. Final cost in a contested guardianship and conservatorship will depend on the amount of time required to respond to the objection(s).
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What is the process for appointing a guardian?

The process starts with a family member or other individual who cares about the individual’s welfare, called the petitioner, filing a petition with the court for appointment of a guardian. This petition notes the facts that show the individual, called the respondent, needs a guardian and the proposed guardian is appropriate and willing to be guardian. The petitioner must give notice to certain family members and other interested individuals that the court is being asked to appoint a guardian. This notice must be given at least 15 days before a guardian is appointed, unless there is an emergency requiring faster action. Any interested individual is able to object to the guardianship by informing the court of their objection and paying a filing fee.

After the petition is filed, the court appoints a neutral individual called a court visitor to talk to people involved in the individual’s life and otherwise investigate the facts alleged in the petition. Once the court visitor has finished investigating, he or she will draft a report making recommendations about whether the respondent needs a guardian and whether the proposed guardian is appropriate.

A judge will then consider the petition, the court visitor’s report, and any objections that were raised and determine whether to appoint a guardian and, if so, whom to appoint. Typically the judge will appoint the proposed guardian and issue official documents called Letters of Guardianship to the guardian so he or she has proof of his or her authority as guardian for doctors, banks, care facilities, and other similar entities.

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What happens if someone objects?

If an objection is filed with the court by the respondent or another interested individual, a hearing will be scheduled to address the petition and objection. At this point, a guardianship proceeding changes from being considered “uncontested” to being considered “contested.” The respondent, the petitioner, and the objector (if not the respondent) will all be able to present evidence and question witnesses to prove whether the respondent needs a guardian and whether the proposed guardian is appropriate. After hearing from all sides, the judge will determine whether to appoint a guardian and, if so, whom to appoint.

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What if there is an emergency?

Sometimes, a person is incapacitated and immediate action needs to be taken to address a serious danger to the person’s life or health. Most often, these situations involve a need for medical care or placement in a care facility because of an unexpected crisis. In these situations, the court can appoint a temporary guardian as soon as the day a petition is filed, with notice requirements adjusted to protect the individual. A petitioner asking for a temporary guardian must provide clear and convincing evidence to the court that the respondent is incapacitated, there is an immediate and serious danger to the life or health of the respondent, and the welfare of the respondent requires immediate action. The temporary guardian must be appointed for a specific purpose and can only be given powers for 30 days at a time. However, a temporary guardianship can be extended by the court and a temporary guardian is often later appointed as a permanent guardian. If you believe your situation meets these criteria, please call us immediately. Temporary/emergency petitions can typically be filed within 1 business day after the client provides all necessary information.

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What are a guardian’s duties and limitations?

A guardian must file an annual report with the court addressing the physical and mental condition of the protected person, the activities of the protected person, where the protected person lives, and the services the protected person receives. If the guardian is responsible for any of the protected person’s finances, the report must also contain information about those finances. The guardian must provide for the care, comfort, and maintenance of the protected person, including any appropriate education and training. The guardian cannot use the protected person’s funds to pay for room and board provided by the guardian or a spouse, parent, or child of the guardian without approval from the court. The guardian must inform the court and provide notice to specific interested individuals and agencies before placing the protected person in a residential care facility or moving the protected person from one residential care facility to another.

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Who can serve as guardian?

Typically, a parent, child, or other close relative serves as guardian. Generally, it is best for the guardian to live near the protected person, or at least within the state to enable him or her to properly care for the protected person. If no family or friends want to be guardian or there is a fight about who should be guardian, a professional guardian can be appointed instead. Professional guardians have specific training in healthcare, social work, financial management, and/or law that enables them to care for multiple protected persons. Professional guardians can be a great option for protected persons who have the funds to pay for their services. The individual serving as guardian can also serve as conservator if necessary.

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