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The Decision to Seek Guardianship and or Conservatorship of an Elderly Loved One

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					      Knowing When to Step In and
Seek Guardianship and/or Conservatorship
      May Be Difficult But Necessary


 THE DECISION TO SEEK
GUARDIANSHIP AND/OR
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
                related disease
              In 2012, over 15 million caregivers provided unpaid care to Alzheimer
                patients
              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
                Alzheimer’s


          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
          and/or conservator.


          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
          guardian/conservator.


          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
          satisfactory manner.



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
          conservator.


          REFERENCES


          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
          Conservator
          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
                                       Merrill Lynch.

          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
                                             www.rbsllc.com
                                     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

				
DOCUMENT INFO
Description: Facing a dementia related illnesses is often very hard especially 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.