Knowing When to Step In and
Seek Guardianship and/or Conservatorship
May Be Difficult But Necessary
THE DECISION TO SEEK
CONSERVATORSHIP OF AN
ELDERLY LOVED ONE
RICHARD B. SCHNEIDER
OREGON ESTATE PLANNING ATTORNEY
As the life expectancy for Americans continues to increase, so do some of
the age-related illnesses and conditions that come with living longer. For
example, statistics tell us that the risk of developing Alzheimer's disease
doubles approximately every five years. While statistics such as this can be
frightening on a personal level, facing a dementia related illnesses is often
even harder when the victim is a parent or other elderly loved one.
Knowing when to step in and seek guardianship and/or conservatorship is
frequently a heart-wrenching process; however, failing to step in can create
an even greater risk of injury to your loved one.
FACTS AND FIGURES RELATING TO ALZHEIMER’S
Alzheimer’s disease is not the only dementia related illness, nor is it the
only reason why you may someday be contemplating the need to become
a guardian or conservator, however, the facts and figures relating to
Alzheimer’s do provide a broad overview of how prevalent the need is for
guardians and conservators.
Alzheimer’s is the sixth leading cause of death in the United States
One in three seniors dies with Alzheimer’s or another dementia
In 2012, over 15 million caregivers provided unpaid care to Alzheimer
Deaths caused by Alzheimer’s increased almost 70 percent between
2000 and 2010
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 2
By 2025 an estimated 7 million seniors over the age of 65 will have
What these figures should tell you is that if you are currently faced with the
decision to seek guardianship and/or conservatorship over an elderly loved
one you are not alone. Millions of family members and loved ones are
facing the same difficult decisions that you are right now.
WHAT IS GUARDIANSHIP?
A guardianship proceeding is a legal proceeding that allows you to petition
to be the guardian of a “protected person”. In this case, the protected
person would be your elderly family member or loved one. As guardian,
you would have legal authority and control over the protected person
himself or herself. Your responsibilities as guardian are to make daily
decisions for the protected person regarding things such as where the
individual will live, what doctor he or she will treat with, and what activities
the protected person will engage in from day to day. Oregon law allows a
guardian to be appointed only to the extent “necessary to promote and
protect the well-being of the protected person.” This means that your
duties and responsibilities as guardian may be extensive or minimal
depending on the physical and mental limitations of the protected person.
Just because an individual has a guardian does not mean that he or she is
no longer allowed to make any independent decisions nor does is it mean
that a court has adjudicated the individual incompetent.
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 3
WHAT IS CONSERVATORSHIP?
A conservatorship proceeding is very similar to a guardianship proceeding
except that a conservator is given legal control and authority over the
estate of the protected person, not over the protected person himself. In
other words, as conservator you would be responsible for the protected
person’s bank accounts, investments, real property, and personal property.
Property is not legally transferred into the conservator’s name. Instead, the
conservator has a fiduciary duty to protect the assets for the protected
person. As is the case with a guardianship, just because a conservator has
been appointed does not mean that the protected person is no longer able
to retain control over some portion of his or her own funds; however, the
conservator may be responsible for determining how much money the
protected person needs access to on a daily basis. Also similar to
guardianship, the court may grant extensive powers or very limited powers
to a conservator depending on the specific facts and circumstances.
WHAT IS INCAPACITY?
In order for a court to appoint a guardian and/or conservator for someone
the court must first be convinced that the person is incapacitated.
ORS 125.005 defines “incapacitated” as:
“a condition in which a person´s ability to receive and
evaluate information effectively or communicate
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 4
decisions is impaired to such an extent that the person
presently lacks the capacity to meet the essential
requirement for the person´s physical health or safety.”
Appointing a guardian or conservator is not something that a court takes
lightly. Although it does not completely strip the protected person of his or
her rights, independence, and freedom, it is a decision that has very
serious consequences for both the protected person and the
guardian/conservator. As such, the court will need to be convinced that the
proposed protected person meets the legal definition of incapacity by
evidence presented in the petition or at a hearing.
HOW DO I PETITION TO BECOME A GUARDIAN OR CONSERVATOR?
Once you have made the difficult decision to seek guardianship and/or
conservatorship (you may seek either or both at the same time), you will
need to file a petition with the appropriate Circuit Court. Usually an estate
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 5
planning attorney will assist you prepare the necessary documents. The
petition must allege facts that support the appointment of a guardian
The proposed protected person must be notified of the petition and has a
right to object to the appointment. In addition, other family member such
as a spouse and adult children must also be notified of the proceedings.
The court will typically order an assessment and evaluation of the proposed
protected person which will include a recommendation.
If an objection to the proposed guardianship and/or conservatorship is
filed, the court will schedule a hearing. At the hearing, you will need to
present evidence sufficient to convince the judge that the proposed
protected person is incapacitated and that you are an appropriate
AFTER THE APPOINTMENT
After the court has made its decision, and you are appointed
guardian/conservator you will be provided with letters of
guardianship/conservatorship at which point you will begin your duties.
Throughout your time as guardian/conservator the court will maintain
jurisdiction and oversight. You will need to report to the court on a regular
basis to ensure the court that you are performing your duties in a
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 6
Making the decision to seek guardianship and/or conservatorship is likely
one of the most difficult decisions you will make during your lifetime;
however, failing to make the decision could leave your loved one vulnerable
to injury or victimization by unscrupulous scam artists and swindlers who
prey on the elderly. Along with consulting your loved one’s healthcare
providers, take the time to consult your estate planning attorney if you are
concerned that a family member or loved one is in need of a guardian or
OregonLaws.org, General powers and duties of guardian
OregonLaws.org, Power of conservator over property of protected person
Guardian/Conservator Association of Oregon, Serving as Guardian of
ALZ.Org, Alzheimer’s Facts and Figures
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 7
About the Author
Richard B Schneider
Before devoting his professional efforts primarily to estate
planning, Mr. Schneider spent over fifteen years working
on Wall Street for major law firms and investment banks.
After graduating from law school, he practiced general civil
law in New York City for five years, specializing in business
transactions, financings and corporate matters. He also
represented major investment banking firms in mortgage
trading and real estate-related matters. Among his clients
were international shipping companies, commercial and
investment banks and institutional lenders, including
General Electric Capital Corporation, Salomon Brothers and
For the next ten years Mr. Schneider served as Senior Vice President at the investment
banking firm of Kidder, Peabody, where he managed outside legal counsel for a variety
of large financial transactions between major institutions. He played a central role in the
creation of Kidder, Peabody’s mortgage trading subsidiary and advised and executed
transactions with insurance companies, pension funds and government agencies,
including the Resolution Trust Company.
In 1996 Mr. Schneider established a residence in Portland, Oregon and began his law
practice there in 1997. He has made a long-term commitment to providing first-class
estate planning legal services to families and individuals within the Portland
metropolitan area and the surrounding SW Washington region. His motivations for
moving to the Northwest were several: the natural scenic beauty of the Northwest
landscape, the clean air and streets, the healthy, diversified economy and the overall
high quality of life. Mr. Schneider is very grateful for the warm reception he has received
from Portland/Vancouver and is pleased to have become a respected member of the
Portland/Vancouver legal and business community.
Mr. Schneider is a member of the American Academy of Estate Planning Attorneys, the
National Academy of Elder Law Attorneys, the Estate Planning Council of Portland and is
on the board of directors of the the Rental Housing Association of Greater Portland. He
is admitted to practice in Oregon, Washington and New York.
Law Offices of Richard B Schneider, LLC
2455 NW Marshall St, Suite 11
Portland, OR 97210
Phone: (503) 241-1215
The Decision to Seek Conservatorship and/or Guardianship of an Elderly Loved One 8