By, Shirley Farmer, Attorney at Law
The information provided in this article is intended to give a general overview of the topic and is not intended as legal advice. For information specific to your situation, please talk with your estate planning professional.
Article #11, When Decisions Become Difficult: Guardianship and Conservatorship
Americans are living longer than ever. Unfortunately for many individuals, the body or mind will encounter increasing difficulties as the years roll by. When an individual’s mental abilities cross the point to where he is no longer considered able to make decisions for his own care or management of finances, loved ones may find themselves facing the difficult decision of whether it is time to step in legally through guardianship and conservatorship.
Generally, when you see the term “conservator” or “conservatorship” this refers to someone handling the finances for an individual who has been determined no longer able to. The term “guardian” or “guardianship” refers to the appointing of someone to handle the care and health decisions for the individual. Often if an individual requires one, they will require help in both areas. There are different types of each, such as whether it will be temporary or limited, and each requires a court process including the filing of a petition explaining why the individual is believed unable to make his or her own decisions regarding care or finances, why the person seeking to be appointed is a suitable choice, and for conservatorship what property is of concern, among other things. The individual has the right to contest the appointment of a guardian or conservator if he or she does not agree to the proceeding, as will certain other individuals considered “interested parties” to the matter, and if contested a hearing will be scheduled for a judge to decide.
When considering guardianship or conservatorship of an adult, there are several questions to ask, but two take priority: 1) when is a person no longer able to make decisions for himself and considered “incapacitated,” and 2) if that time has come, who should take over that role? Determining when a person is not considered capable of making decisions for his own life is a difficult question indeed. There is no set standard for this, and the facts and considerations will vary as much as the individuals themselves. In Oregon, the term “incapacitated” for these types of proceedings 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.” (quoted from Oregon Revised Statute 125.005)
For guardianship, just because someone is appointed to act as guardian for an individual does not mean the individual is considered “incompetent,” and the individual retains all his or her rights and abilities excepting those specifically appointed to the guardian. There are limitations on the things a guardian can do, and being granted guardianship over another does not give the blanket ability to take over the person’s life and make any and all decisions. For conservatorship, the individual must be found to be “financially incapable,” which means the individual is not able to “manage financial resources” for himself effectively for any number of reasons. The phrase “manage financial resources” is further clarified in Oregon as “those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.”
So what does all this mean? Well, there is a big difference between an individual not being mentally capable of making his own decisions and a family member simply not agreeing with the decisions a still capable person is making. Just because you don’t like how Uncle Joe spends his money or how he chooses to live does not mean you get to take away his right to make those decisions. We are all free to make the choices in our life, for good or ill. Many people make what others consider poor choices impacting their health or finances, but this does not mean they lack the capacity to be making those choices.
Appointing a guardian or conservator for an adult impacts the rights, freedoms and decision making abilities of the individual and is a step that should not be taken lightly. Making the determination of incapacity will require the input of family, friends, doctors, and potentially care givers and/or case workers if involved. Simply reaching a certain age or even being diagnosed with a form of mental change such as dementia or Alzheimer’s does not in itself render a person incapacitated allowing another to legally take over the decision making. Only a legal proceeding for guardianship or conservatorship and a proper finding by the court can formally appoint someone into these roles.
The next major decision is who should be appointed in the role of guardian or conservator. First, the person being appointed for the role must be willing to take on the duties and responsibilities, which can be extensive. Next, the person must be “suitable” to assume these duties. There are limitations on who is considered suitable to serve as conservator or guardian. For example, the person being appointed must disclose if he or she has a history of criminal convictions or bankruptcy. In addition, certain individuals are generally barred from taking on the role, such as persons acting as a health care provider for the individual or has been determined incapacitated or financially incapable himself. The choice of legal guardian or conservator is a major decision, and it is common that loved ones disagree with who should serve this role. If there is disagreement, it will be for the court to choose. Once appointed a guardian or conservator can be removed and appointment revoked through the court, such as if the appointed guardian does not act in the best interest of the individual in need of the assistance.
There are things an individual can do to help prepare for the possibility of future incapacity. Having a Durable Power of Attorney and Advance Directives for health care in place, among other tools, can help avoid the need for legal proceedings of conservatorship or guardianship in many cases. Talk with your legal professional for more information about how to prepare for your future or if you are facing the difficult decisions of guardianship and conservatorship for a loved one.