Guardianship

   Guardianship is the legal process by which a health care or financial decision maker is appointed for someone. This process may be initiated by a next of kin, other family member or interested third party.

   A proceeding to appoint a personal or health care decision maker is called guardianship (in Oregon), or guardian of the person (Washington state). A proceeding to appoint a financial decision maker is called a conservatorship (Oregon) or guardian of the estate (Washington). A petition may ask for appointment of both a health care and financial decision maker in one person or, more rarely, these functions can be vested in separate individuals. It is also possible to ask for only the appointment of a guardian or conservator.

   Once a petition is filed, the court will appoint a third party to verify and investigate the allegations as to why and in what respect the alleged incapacitated person cannot meet her own needs. This person is called Court Visitor (Oregon) or a Guardian ad Litem (Washington) and will prepare a written report for the court and testify in court if necessary.

   A petition to appoint a guardian or conservator must be served on the alleged incapacitated person who may filed objections. A copy of the petition is also required to be mailed to next of kin, typiocally adult children or siblings if there are no children. Any legitimately interested party may also file objections. If objections are filed and not resolved, the court will hold a hearing at which testimony of witnesses will be taken. Depending on the court, alternative dispute resolution, such as mediation or judicial settlement conference, may be a mandatory step prior to trial. Multnomah County, Oregon, for instance, requires this.

   If a guardian of the estate is appointed to take over management of the protected person's assets, the court will require a bond in the amount of the fair market value of the assets (without considering any debt) plus the amount of annual income. In some cases it may be possible to restrict assets by court order thus reducing the required bond. There is also a requirement to file an inventory of assets and an annual account listing all receipts, disbursements and current assets held.

   To the extent that the allegations of a petition for guardianship or conservatorship are held to be well founded, the judge will typically allow the assets of the protected person to pay the costs of the protective proceeding (if these are sufficient assets of course).