Understanding what a guardian is and what a conservator is
You might have seen it on a permission or a release form: “parent or guardian.” Or perhaps headlines about someone being in a “conservatorship” has piqued your interest, but also stirred up your confusion. After all, what are guardianships and conservatorships in Oregon? Are they for health? Finances? Adults? Minor children?
The simple answer is… yes, all of the above. The right role for a situation depends on the specific circumstances.
Are guardians and conservators different words for the same thing?
It can seem like “guardian” and “conservator” are simply two ways of saying the same thing, but each role has its own applications within the bounds of Oregon law.
In practice, a guardianship and a conservatorship each correspond to a process and legal designation where a court can appoint a person to make health care decisions, financial decisions, and/or other life decisions for another individual. This can be due to age, infirmity, and/or other circumstances.
What is the differences between a Guardianship and a Conservatorship?
In Oregon, a guardian and a conservator have very different roles:
- A guardianship encompasses a person who has court-appointed authority over health care, safety, and daily living decisions. This can be for an adult or a minor child.
- A conservatorship empowers a court-appointed person to manage and have authority over a person’s assets, such as money or property. This can also be for an adult or a minor child.
All of these applications have their own nuances, and each can be a better fit for differing circumstances.
Guardianships and guardians in Oregon
In Oregon, a guardian or guardianship are terms that can describe a situation where a person has legal authority and decision-making power for another person in matters such as:
- Where someone lives;
- Who someone associates with;
- Someone’s medical care; and
- Someone’s overall welfare.
Guardianships for minors occur when someone under the age of 18 years old does not have a living parent to take care of them. Therefore, a Guardian is needed to be appointed to protect the minor and generally stays in place until they turn 18 years old.
Conservatorships and conservators in Oregon
Conversely, a conservatorship can be more tightly defined. Typically, a conservator’s authority and decision-making power is limited to assets. Think of a conservator as “someone who holds the wallet and the keys to a person’s finances.” This means that the conservator holds and protects all assets and determines who they should be spent.
Conservatorships for minors generally occur when someone under 18 years old receives a gift, settlement, inheritance, or judgment that is valued at over $25,000. In those instances, a conservatorship is needed to manage the minor’s assets.
Are guardians and conservators common in Oregon?
Guardianships and conservatorships in Oregon are in effect in every judicial district in the state. Courts from the coast to the Idaho border also have cases pending for each arrangement. At any given time in the state, there could be over 14,000 legal cases being discussed and decided about people who may need the oversight of a guardian or conservator.
Typically, though, these arrangements are for adults, not minors. Circumstances matter, as does trusted legal advice. In Oregon, usually around two-thirds of cases involve an adult, and one-third involve a minor child.
It’s also more common for cases to involve guardianships.
What does it mean to be appointed as a guardian in Oregon?
A legal guardian becomes empowered to make broad, crucial decisions for that person under that protection. Guardians make important choices which affect life and quality of life. It’s a role that carries deep responsibilities. The person being protected under guardianship, however, forfeits their right to make many decisions about their lives.
The role of a guardian is especially important for adults who are not able to make their own decisions, such as a person in a coma, or who has advanced dementia.
A court appoints and terminates the appointment
Unless you are a legal parent of a minor, a person cannot declare themselves as a guardian or a conservator. A case must be brought in court, a judge must hear that case, and then the court must appoint the guardian and/or conservator. A person, usually a family member, makes a petition to the court to be appointed the guardian/conservator of another person. However, a person does not have to be a relation in order to be named a guardian/conservator.
Circumstances also arise that could justify the ending of a guardianship and/or conservatorship. The person who is subject to the guardianship and/or conservatorship could also desire to have the arrangement concluded. Just as with the creation of the guardianship and/or conservatorship, a judge can hear a case arguing for or against the conclusion of the guardian’s and/or conservator’s authority. If the judge concludes so, then the guardianship and/or conservatorship can be brought to a close.
You can request who will be your guardian and/or conservator
While the decision of who is a guardian/conservator is ultimately up to the court, you can specify who you would want to receive the appointment.
When it comes to guardianships and conservatorships in Oregon, legal documents such as your Will, Nomination of Guardian and Conservator, Advance Medical Directives (also known as a Medical Power of Attorney), or a Power of Attorney can lay out one or multiple people you would like or prefer to serve in this role.
Stating your preferred person is something the court will consider. However, ultimately the final decision and appointment is always up to the court. The court may also designate a nominated professional fiduciary or from the Oregon Public Guardian and Conservator Program (OPG) (“Program”). Please note though that the Program is typically a last resort and it depends on their ability to take on additional matters. Generally, if you do not have a preferred nominated guardian/conservator, your next option is a professional fiduciary.
How do I protect myself for the future?
Guardianships and conservatorships in Oregon can be complicated legal matters. The best way to protect yourself for the future is to meet with an estate planning attorney and make sure that your wishes are legally recorded.
