A guardianship is a legal proceeding whereby one person is appointed by the court to be responsible for meeting the physical needs of another legally incapacitated person. In the case of an adult respondent, it is essentially a lawsuit the object of which is to have one person declared incompetent, and to have another person appointed to act on behalf of the first. Once declared incompetent, the person over whom a guardianship is imposed has very little power or authority to change their circumstances. It has been said that next to incarceration, guardianship is the most serious threat to individual liberty and freedom in our society.

 

 

Of course, the object of this proceeding is to help and protect the sick and vulnerable among us. "Incapacitated" means 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. A person can be affected by a disability and yet have legal capacity. It is only when disability prevents them from taking action necessary to provide for their own health care, food, shelter, clothing, personal hygiene or other care that the court will step in and appoint a guardian.

 

A guardianship is commenced with the filing of a petition for appointment of an interested person. The petition is generally filed in the county in which the incapacitated person (the respondent) resides or is present. The petition includes certain information about the respondent and the petitioner, required by statute, in order to inform the court of the qualifications of the petitioner, the circumstances of the respondent, and the nature of the respondent's incapacity. The petitioner is also required to inform the court as to any plans to place the respondent in a nursing home or mental health treatment facility.

 

The respondent and other interested persons must be given notice of the filing of the petition, and must be informed of their rights to object or otherwise participate in the proceeding. The respondent must be personally served with the notice and a copy of the petition. Other interested persons, such as the spouse and adult children of the respondent, agents under power of attorney, health care representatives, etc., can be served by first class mail.

 

Objections must generally be made within 15 days of service of the notice. Objections can be made either orally or in writing. In the event of an objection, a hearing will be held to determine whether the petition is well founded. The respondent has a right to appear and participate. All the rules of evidence apply at the hearing.

 

To aid the court in determining whether a guardianship is appropriate, even in the absence of an objection, the court will appoint a visitor upon the filing of the petition. The court appointed visitor is generally a nurse or social worker with background and training in geriatric care. The visitor interviews the proposed guardian and the respondent, and gathers additional information concerning the issues. The visitor then prepares a report which is submitted to the court for review prior to the appointment of the guardian. If the visitor finds the allegations of the petition are substantially correct, and that a guardian is necessary, and also believes the petitioner is qualified and suitable to be appointed as guardian, then it is most likely the court will apoint the proposed guardian.

 

Once appointed, the guardian has all the powers of a custodial parent over a minor child; including but not limited to determining the place of residence of the protected person, providing for the physical care and maintenance of the person, and consenting or refusing to consent (or withholding) health care. The guardian is not, however, obligated to support the protected person, and is not liable for the civil debts of the person.

 

Once a year, the guardian is required to prepare and file with the court a guardian's report in statutory form. The report advises the court of the present placement and circumstances of the protected person and the activities of the guardian over the past year.

 

A guardianship terminates upon death of the incapacitated person, or upon the recovery of legal capacity.

 

For more information, contact:

James F. Little,
1430 Pine Street,
Silverton, OR 97381
Telephone: (503) 873-6081 Office;
(503) 873-7919 Home