guardianships
what is a guardianship?
Sometimes a person is unable to manage their own health and welfare, due to the fact that they are a minor, are disabled, or mentally or physically ill, or have substance abuse issues.
In some cases, it’s necessary for the court to appoint a person to manage the incapacitated person’s health and welfare. (The term incapacitated is a legal definition, found in the Oregon statutes:
““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. “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.” Oregon Revised Statutes 125.005(5)
The person appointed to manage the health and welfare of the incapacitated person is called a guardian. The court proceeding is called a guardianship.
how does the guardianship process work?
(1) A guardianship begins with the filing of a legal document called a petition with the court. The person filing the petition is called the petitioner. The person in need of the guardianship is called the respondent.
In the petition, the petitioner asks the court to appoint a guardian for the person who is incapacitated. The proposed guardian can be the same person as the petitioner or a different person. Sometimes the petitioner will ask for a professional fiduciary to be appointed. The petition must set out information about the incapacitated person, the proposed guardian, and information about the respondent’s health and welfare. The petition must also explain to the court why a guardianship is necessary and why less restrictive alternatives won’t work.
(2) The petition must be served (given in person) on the respondent. The petition must also be mailed to certain people and sometimes certain government agencies, depending on the circumstances. The people who are entitled to be sent the petition are called the interested persons. Who the interested persons are depends on the facts of each particular case.
(3) The court will appoint a neutral fact finder, called a court visitor, to investigate. The court visitor will meet with the respondent and speak with the interested persons, as well as review any documents available to them, such as medical records. The court visitor will prepare a visitor’s report, giving their recommendations about whether a guardianship is needed and whether the proposed guardian is an appropriate person to serve.
(4) The respondent and the interested persons have a period of time to object to the guardianship. They can object to the choice of proposed guardian. They can also object to the need for the guardianship.
(5) If there are no objections, the court will decide, based on the petition and the visitor’s report, if a guardianship is necessary and the proposed guardian is appropriate.
If there are objections, the court will set a hearing date. At the hearing, the petitioner and the respondent will each get to call witnesses and make their arguments. The court visitor will also testify about their visitor’s report. The judge will decide whether a guardian is necessary and if the proposed guardian should be appointed.
In either circumstance - no objections or objections - if the court determines a guardianship is necessary and the proposed guardian is appropriate, a judge will sign a limited judgment, appointing a guardian. If a guardian is appointed, the respondent is no longer referred to as the respondent and is now called the protected person.
(6) After the judge signs the limited judgment, the court will issue letters of guardianship. The letters of guardianship give the guardian legal authority to manage the protected person’s health and welfare.
(7) In some counties, within a certain time of being appointed guardian, the guardian must take a fiduciary education class, to help them understand their duties and responsibilities.
(8) After being appointed, the guardian must take control of the health and welfare of the protected person. If the protected person needs to be moved into a care facility, the guardian must give notice and get authority from the court to move the protected person.
(9) Each year, within 30 days of the anniversary of being appointed, the guardian must file an annual guardian’s report with the court.
Some guardians like to have their attorney remind them of the deadline and help them file the report. Other guardians choose to file the report on their own.
Multnomah County Court annual guardian’s report form
how can gapinski law, llc help me?
I can help you evaluate whether a guardianship is necessary or if there are other, less restrictive alternatives that would ensure the health and safety of the incapacitated person. If a guardianship is needed, I can prepare and file documents to initiate the guardianship. I will guide through the guardianship process and make sure you fulfill all of your duties as guardian. If the respondent objects, I can represent you at the hearing.
Attorney fees can be paid from the protected person’s assets and are subject to court approval.