What is a Guardianship? When is a Guardianship Required?

July 18, 2019

 

 What is a guardian?

A guardian is a person named by the court who has the authority and duty to make personal and health care decisions for a minor (under 18 years) or adult incapacitated person (the 'protected person').

A guardian may determine where the protected person will reside and what medical care he or she will receive.

The court may appoint a guardian either with unlimited authority, or only for specific actions. A guardian generally does not make financial decisions. The court may appoint a conservator to manage the finances of the protected person.

When is a guardian required?

When is a person no longer capable of making decisions for himself or herself? A guardian is necessary when an individual lacks the capacity to make adequate decisions involving his or her care and safety. When is a person no longer capable of making decisions for himself or herself? This is perhaps the most difficult question for a family to make, or for an elder law attorney to answer.

Oregon law defines 'incapacity' in ORS 125.005 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.'


The court evaluates information from doctors, psychologists, public social workers, private case managers, family, and friends. The court will appoint a neutral, trained individual, known as the court visitor, who will interview the people involved in the guardianship proceeding and report back to the court.

For more information about guardianships and/or conservatorships, click here.

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