Whether or not a person can serve as a guardian depends on a number of factors. In Oregon and in a lot of states there are similar considerations. Most of the qualifications apply in every case, but there are also situations that may require even more from you. As always, getting an attorney is the best way to know exactly how the law may apply to you.
Oregon law gives judges considerable discretion in deciding whom they appoint as guardian or even whether a guardian is needed. The judges look at indicators of character and how likely a person is to be able to fulfill their duties as a guardian to the person in need of protection.
In Oregon any petition for a guardian needs to tell the court about the person nominated as guardian. The court will want to know if you have ever been convicted of a crime. You also need to tell the court if you have ever declared bankruptcy. You also need to state if you have ever had a license revoked or suspended, and by this I don’t just mean a driver’s license, but also professional licenses, anything from a food handler’s permit to a nursing license. (By the way, these same factors must be reported if you are petitioning the court to be someone’s conservator. For a more complete discussion of guardians and conservators, click here.)
Even if you have to report that you have had issues with any of the items I just mentioned, it isn’t an automatic bar to serving as a guardian in Oregon. The court will likely want to know more about the circumstances surrounding any of these issues. The reason for this kind of inquiry is to better know how likely it is that you would do a good job for the person you would be protecting. For instance, you may have been convicted of a crime, but it would make a difference to the court if it was a DUII back when you were 18 years old or if you were convicted of child neglect a month ago. The same is true of any of these factors; a bankruptcy 30 years ago or one forced due to medical bills would be viewed differently than a bankruptcy filed this year because of a gambling problem. I think you probably get the idea.
The judge is going to also consider how your living circumstances will affect your ability to serve as guardian. The biggest thing along this line that I have noted over the years I have practiced is where you live. There is no legal prohibition to appointing a guardian that doesn’t live close by, but the court is going to look at how a would-be guardian is going to check on and meet the needs of the person they are protecting. So, if you live in Massachusetts and the person you are protecting lives here in Oregon, the court will want to know how you are going to perform your duties. The same kind of thing is in play regarding someone that lives close, but has challenges in meeting their own needs. As an example I have seen a few times; a person needs a guardian and their brother or sister wants to serve as guardian, but they have significant health challenges of their own. The court would not automatically say no, but the judge will want to know the plan for helping the person to be protected. Another preference many judges have is that a family member serve as guardian. There often is a feeling that family ties are usually stronger than friendship and that if a guardianship becomes difficult a family member may stick with it, when a friend might be more inclined to quit. The courts look at the circumstances, as they should, on a case by case basis.
If you are a family member or friend of someone that needs a guardian there are numerous approaches to the problem. You may be able to help the person needing protection in several ways. An attorney may be able to help you look at the situation and consider it in the same way a judge would. You should decide if you or someone else would be the best fit to serve as a guardian and whether you or someone else would best meet the needs of the person. Even if you are not the best fit as the guardian, you can still do a lot of good for someone by petitioning the court on their behalf and finding someone to serve as a guardian. If you are not able to serve as a guardian, there may be another family member or friend that is willing and able to serve. They may not know they could help in this way. There are also professional guardians that can help, depending on the person’s resources. You may be able to provide a great service for your loved one just by getting a guardianship set up.
Stan Butterfield is a probate lawyer in Dallas, Oregon. He regularly practices in Polk, Marion, Linn, and Yamhill counties. He assists folks by writing wills and trusts and also with probate estates, guardianships and conservatorships. If you think Stan could help you, please call him at (503) 623-2427.