Knowing When to Step In and Seek Guardianship and/or Conservatorship May Be Difficult But Necessary

THE DECISION TO SEEK GUARDIANSHIP AND/OR CONSERVATORSHIP OF AN ELDERLY LOVED ONE

RICHARD B. SCHNEIDER
OREGON ESTATE PLANNING ATTORNEY

As the life expectancy for Americans continues to increase, so do some of the age-related illnesses and conditions that come with living longer. For example, statistics tell us that the risk of developing Alzheimer's disease doubles approximately every five years. While statistics such as this can be frightening on a personal level, facing a dementia related illnesses is often even harder when the victim is a parent or other elderly loved one. Knowing when to step in and seek guardianship and/or conservatorship is frequently a heart-wrenching process; however, failing to step in can create an even greater risk of injury to your loved one.

FACTS AND FIGURES RELATING TO ALZHEIMER’S
Alzheimer’s disease is not the only dementia related illness, nor is it the only reason why you may someday be contemplating the need to become a guardian or conservator, however, the facts and figures relating to Alzheimer’s do provide a broad overview of how prevalent the need is for guardians and conservators.  Alzheimer’s is the sixth leading cause of death in the United States  One in three seniors dies with Alzheimer’s or another dementia related disease  In 2012, over 15 million caregivers provided unpaid care to Alzheimer patients  Deaths caused by Alzheimer’s increased almost 70 percent between 2000 and 2010

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

2

 By 2025 an estimated 7 million seniors over the age of 65 will have Alzheimer’s What these figures should tell you is that if you are currently faced with the decision to seek guardianship and/or conservatorship over an elderly loved one you are not alone. Millions of family members and loved ones are facing the same difficult decisions that you are right now.

WHAT IS GUARDIANSHIP?
A guardianship proceeding is a legal proceeding that allows you to petition to be the guardian of a “protected person”. In this case, the protected person would be your elderly family member or loved one. As guardian, you would have legal authority and control over the protected person himself or herself. Your responsibilities as guardian are to make daily decisions for the protected person regarding things such as where the individual will live, what doctor he or she will treat with, and what activities the protected person will engage in from day to day. Oregon law allows a guardian to be appointed only to the extent “necessary to promote and protect the well-being of the protected person.” This means that your duties and responsibilities as guardian may be extensive or minimal depending on the physical and mental limitations of the protected person. Just because an individual has a guardian does not mean that he or she is no longer allowed to make any independent decisions nor does is it mean that a court has adjudicated the individual incompetent.

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

3

WHAT IS CONSERVATORSHIP?
A conservatorship proceeding is very similar to a guardianship proceeding except that a conservator is given legal control and authority over the estate of the protected person, not over the protected person himself. In other words, as conservator you would be responsible for the protected person’s bank accounts, investments, real property, and personal property. Property is not legally transferred into the conservator’s name. Instead, the conservator has a fiduciary duty to protect the assets for the protected person. As is the case with a guardianship, just because a conservator has been appointed does not mean that the protected person is no longer able to retain control over some portion of his or her own funds; however, the conservator may be responsible for determining how much money the protected person needs access to on a daily basis. Also similar to guardianship, the court may grant extensive powers or very limited powers to a conservator depending on the specific facts and circumstances.

WHAT IS INCAPACITY?
In order for a court to appoint a guardian and/or conservator for someone the court must first be convinced that the person is incapacitated. ORS 125.005 defines “incapacitated” as:

“a condition in which a person´s ability to receive and evaluate information effectively or communicate

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

4

decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirement for the person´s physical health or safety.”

Appointing a guardian or conservator is not something that a court takes lightly. Although it does not completely strip the protected person of his or her rights, independence, and freedom, it is a decision that has very serious consequences for both the protected person and the guardian/conservator. As such, the court will need to be convinced that the proposed protected person meets the legal definition of incapacity by evidence presented in the petition or at a hearing.

HOW DO I PETITION TO BECOME A GUARDIAN OR CONSERVATOR?
Once you have made the difficult decision to seek guardianship and/or conservatorship (you may seek either or both at the same time), you will need to file a petition with the appropriate Circuit Court. Usually an estate

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

5

planning attorney will assist you prepare the necessary documents. The petition must allege facts that support the appointment of a guardian and/or conservator. The proposed protected person must be notified of the petition and has a right to object to the appointment. In addition, other family member such as a spouse and adult children must also be notified of the proceedings. The court will typically order an assessment and evaluation of the proposed protected person which will include a recommendation. If an objection to the proposed guardianship and/or conservatorship is filed, the court will schedule a hearing. At the hearing, you will need to present evidence sufficient to convince the judge that the proposed protected person is incapacitated and that you are an appropriate guardian/conservator.

AFTER THE APPOINTMENT
After the court has made its decision, and you are appointed guardian/conservator you will be provided with letters of guardianship/conservatorship at which point you will begin your duties. Throughout your time as guardian/conservator the court will maintain jurisdiction and oversight. You will need to report to the court on a regular basis to ensure the court that you are performing your duties in a satisfactory manner.

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

6

Making the decision to seek guardianship and/or conservatorship is likely one of the most difficult decisions you will make during your lifetime; however, failing to make the decision could leave your loved one vulnerable to injury or victimization by unscrupulous scam artists and swindlers who prey on the elderly. Along with consulting your loved one’s healthcare providers, take the time to consult your estate planning attorney if you are concerned that a family member or loved one is in need of a guardian or conservator.

REFERENCES
OregonLaws.org, General powers and duties of guardian OregonLaws.org, Power of conservator over property of protected person Guardian/Conservator Association of Oregon, Serving as Guardian of Conservator ALZ.Org, Alzheimer’s Facts and Figures

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

7

About the Author
Richard B Schneider
Before devoting his professional efforts primarily to estate planning, Mr. Schneider spent over fifteen years working on Wall Street for major law firms and investment banks. After graduating from law school, he practiced general civil law in New York City for five years, specializing in business transactions, financings and corporate matters. He also represented major investment banking firms in mortgage trading and real estate-related matters. Among his clients were international shipping companies, commercial and investment banks and institutional lenders, including General Electric Capital Corporation, Salomon Brothers and Merrill Lynch. For the next ten years Mr. Schneider served as Senior Vice President at the investment banking firm of Kidder, Peabody, where he managed outside legal counsel for a variety of large financial transactions between major institutions. He played a central role in the creation of Kidder, Peabody’s mortgage trading subsidiary and advised and executed transactions with insurance companies, pension funds and government agencies, including the Resolution Trust Company. In 1996 Mr. Schneider established a residence in Portland, Oregon and began his law practice there in 1997. He has made a long-term commitment to providing first-class estate planning legal services to families and individuals within the Portland metropolitan area and the surrounding SW Washington region. His motivations for moving to the Northwest were several: the natural scenic beauty of the Northwest landscape, the clean air and streets, the healthy, diversified economy and the overall high quality of life. Mr. Schneider is very grateful for the warm reception he has received from Portland/Vancouver and is pleased to have become a respected member of the Portland/Vancouver legal and business community. Mr. Schneider is a member of the American Academy of Estate Planning Attorneys, the National Academy of Elder Law Attorneys, the Estate Planning Council of Portland and is on the board of directors of the the Rental Housing Association of Greater Portland. He is admitted to practice in Oregon, Washington and New York. Law Offices of Richard B Schneider, LLC www.rbsllc.com 2455 NW Marshall St, Suite 11 Portland, OR 97210 Phone: (503) 241-1215

The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One

8

Sign up to vote on this title
UsefulNot useful