Legal guardianship solutions are available for minor children and incapacitated adults

It’s never easy emotionally when you realize that an adult in your life is becoming incapacitated, or when a minor child needs someone other than a parent to manage their safety, care, and life decisions. Fortunately, Oregon offers different types of legal guardianship as a means to assist families with their loved ones’ care needs. 

Oregon law specifies 3 kinds of legal guardianships. Let’s talk through what each type is and when it might be needed.

What is a legal guardian?

For starters, in Oregon a court has the authority to grant a suitable person the legal right to make decisions for a third-party. This is known as guardianship. In such a situation, whether for a minor child or an incapacitated adult, the guardian then has the legal authority to make life, safety, and health care decisions for the person in the guardianship. The court then monitors the guardianship and requires yearly reporting.

By the way, while a guardian has the authority and responsibility to make decisions, that does not mean they have control over the minor’s or adult’s assets, such as money or real property. The legal management of assets is generally governed under a different framework called a conservatorship. While guardianships and conservatorships can sometimes be confused, they have different scopes and requirements.

When figuring out which arrangement is best for the situation you’re part of, it’s helpful to talk with an Oregon attorney who specializes in guardianships and conservatorships.

What is incapacitation?

From a legal standpoint, Oregon law defines incapacitation as well. This definition is crucial to giving guidance on when an adult may need to be considered incapacitated:

“‘Incapacitated’ means 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.”

Please keep in mind that a minor does not need to be incapacitated and only needs to be under the age of 18 with no persons with the legal ability to make decisions for them. 

3 types of legal guardianship in Oregon

An Oregon has authorization to establish a guardianship for an incapacitated adult or a minor child. Here are 3 types of guardianships the court might authorize:

1. Temporary Guardianship: Lasts 30 days, used mainly in emergency situations

From the deaths of a child’s parents to the sudden incapacitation of an adult due to illness or injury, an emergency situation might arise where a court needs to quickly name a guardian.

In these situations, the court might establish a Temporary Guardianship. Especially when working with a guardianship attorney, it may be possible to have a Temporary Guardianship expedited and established within days.

A Temporary Guardianship lasts for 30 days. But if need be, the court can grant an extension for another 30 days. In sudden situations requiring a guardian, a temporary guardianship might be the first step while applying to the court for a longer-term standard guardianship.

2. Standard Guardianship: Long-term authority with annual reporting requirements

The most typical type of guardianship in Oregon is the Standard Guardianship. This is usually a longer-term/permanent, ongoing arrangement.

For example, if a minor child needs to be raised by someone other than their parents, those adults may be designated as legal guardians under a Standard Guardianship. This guardianship lasts until the minor reaches the age of 18 or an adoption occurs. Or, a long-term guardian might be needed to oversee the medical care and financial affairs for an adult who is no longer able to make decisions due to a chronic condition.

Standard Guardianships require a longer process to establish, and they come with additional accountability responsibilities to the court.

A Standard Guardianship does not have to have a set end point. It can continue in force for as long as the minor child or incapacitated adult requires a guardian. The law requires guardians to prepare and file annual reports with the court.

While guardians have extensive decision-making authority, it is not absolute or unilateral. Your attorney can advise on scenarios where the court will require notice and can approve or deny certain types of decisions.

3. Limited Guardianship: A guardianship with a specific end date or limitations on Guardian’s powers

Statute sets the time limit for a Temporary Guardianship. A Standard Guardianship can be ongoing. The Limited Guardianship fills the space in between.

Sometimes a guardianship situation is necessary, but only for a limited time or under specific parameters.

For example, a guardianship for a minor child might be necessary due to specific circumstances where the parents are unable to fulfill their usual decision-making role, but the guardian can step aside once those circumstances have ended. A limited guardianship might also be tied to a certain date, the fulfillment of specific goals or requirements, or other parameters.

The Limited Guardianship is a powerful yet flexible arrangement, and attention to detail is crucial when drafting these pleadings.

Guardian preferences can be specified in advance

While courts can establish guardianships without prior legal documents, a person’s preferences for how a guardianship is handled can be specified in advance.

In a will, for example, parents can specify people they would want to have designated as guardians for their minor children. Adults can name people or other parameters they would want the court to consider when weighing a guardianship arrangement. The court is then able to look at this later on and take this recommendation into consideration. The court generally puts considerable weight into someone’s preference for guardianship. 

An attorney experienced in Oregon guardianships can help you with the details

Every guardianship situation is different, and the details and nuances need to be taken into account so the court can make the best decision possible. Whether you need to discuss a child or adult where a guardianship situation might be appropriate, or if you need an attorney to petition the court for a guardianship, we are here to help.