A guardianship is a method of obtaining legal custody or decision-making authority over another person’s health and well-being. People use guardianships for different reasons. A guardian has authority to make medical decisions and housing decisions, including placing a loved one in a medical facility, when that person can no longer make those decisions in their best interest or does not have the legal capacity to do so.
If a person has not used estate planning tools to name a medical or financial decision maker, and is no longer able to sign legal documents, then only the court can create that authority. A Power of Attorney document may not provide enough authority in situations where a minor or adult needs assistance with daily care and activities. This document also does not terminate a person’s ability to act for themselves, so any troubling or threatening actions may continue. Be cautious in using free, online forms for trusts, powers of attorney, and other estate planning documents. Even estate planning software may not cover the issues specific to Oregon or to your circumstances. And if a person’s capacity to sign those legal documents is in question, your authority to act could later be questioned exposing you to potential liability. If you aren’t sure whether your loved one has sufficient capacity to sign legal documents, it is better to involve an attorney to make that determination and prepare the legal documents if appropriate.
When no Power of Attorney exists, or unanticipated circumstances arise, Collier Law is experienced in all aspects of guardianship proceedings, including:
A conservator is appointed by the court to handle legal and financial decisions. The conservator has full authority over an incapacitated person’s finances and property. A conservator may be appointed for an adult if evidence shows that the individual lacks the capacity to manage their own financial resources. A conservator may also be appointed to manage funds for a minor child. Any interested person can petition the court and request authority to take control of a person’s finances if that interested person presents enough evidence of incapacity and no other interested individual objects to the conservatorship. The conservator may not be the person that the incapacitated individual would have chosen if that person were capable of choosing, and the potentially incapacitated individual has the opportunity to object to the appointment.
Once appointed by the court, the conservator is empowered to take possession of the incapacitated individual’s expenses and assets, and is closely monitored by the court. The court requires detailed annual reports. The conservator’s attorney provides legal advice on what is allowed and not allowed in managing the protected person’s finances.
The incapacitated person loses all control of their property and assets. Only the conservator has authority to access bank accounts, transfer funds, or write checks. On certain occasions, a protected person may still be competent to write a will, or change beneficiaries of retirement accounts, life insurance policies, and annuity policies.
When no Power of Attorney exists, or unanticipated circumstances arise, Collier Law is experienced in all aspects of conservatorship proceedings, including:
Careful estate planning allows you to protect yourself from being subject to a guardianship or conservatorship proceeding. Estate planning documents not only allow you to choose who you would want to speak for you when you no longer have that ability, but it also allows this time of transition to be private, rather than public through the court process. These proceedings may involve a court hearing, where a judge listens to family members discuss a person’s capacity in detail, sometimes with examples of behavior or incidents that can be embarrassing. They discuss who should serve as the guardian and conservator. Gaining court authority can be a stressful process for both the person whose capacity is in question, and for the person who seeks decision-making authority. However, when there is no other alternative, the court’s involvement to create this authority is necessary.
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