Guardians and Conservators

A person may need a guardian or a conservator or both. The same person may be appointed in both capacities, however, an incapacitated person with little income and very few assets may only need the assistance of a guardian. An incapacitated person may be able to make health care decisions, but be unable to manage finances or protect them from fraud or misappropriation and thus, need the assistance of a conservator, but not a guardian.

When a person is unable to make decisions for himself or herself, whether health care or financial decisions, someone needs to be able to assume responsibility for that person’s affairs. If no one has legal authority to act, then the courts must be asked to appoint someone to assist. The person appointed by the court to make these decisions is called a guardian or conservator. guardians and conservators are each a type of fiduciary.

A court visitor must be appointed in adult guardianships and may be appointed in conservatorships and minor guardianships. The visitor is someone who has training or expertise to evaluate the case. The visitor makes recommendations to the court regarding the capacity of the protected person and whether the proposed guardian is appropriate and willing and able to serve.

Anyone who is interested in the welfare of the incapacitated person may be appointed as guardian and/or conservator. Prospective guardians and/or conservators must submit to a criminal background check and tell the court whether or not they have been convicted of a crime, have filed for or received protection under the bankruptcy laws, or have had a license revoked or canceled that was required by the laws of any state for the practice of a profession or occupation. Prospective guardians must also sign a consent stating that they are willing to serve and in some jurisdictions, must undergoing training provided by the court before appointed.

Guardianship and conservatorship, when properly used, are good ways to provide continuing care and management to persons who need such help. The continuing involvement of the court provides added protection to everyone involved.

A guardianship or conservatorship case should be filed in the county where the incapacitated person resides or is present. A conservatorship case may also be filed in the county where property of the incapacitated person is located, but only if the person does not live in Oregon and is not present in Oregon.

The courts provide a very limited number of forms. There are no statewide forms available for most guardianship or conservatorship actions. However, some circuit courts may offer minor guardianship forms, but they are not required to do so. You should consult with a lawyer whenever you are considering filing a guardianship or conservatorship case. You may find other resources on the website of the Oregon State Bar listed in the helpful resources section below.​​

Courts do not casually appoint guardians and conservators. A person must be given notice of a petition asking the court to act, has a right to be present at a hearing on the petition, the right to present and cross-examine witnesses and the right to a court-appointed attorney if unable to hire one. There is a right to have accountings and reports from guardians and conservators and a right to have the court periodically review the need for continuation of the guardianship or conservatorship.

Guardianships and conservatorships can be complicated. If a family member or friend needs to have a guardian or conservator appointed, you should contact an attorney who is familiar with this area of the law so that the necessary papers can be filed with the appropriate court and so that the correct procedures can be followed. The attorney can also advise you of various alternatives to guardianship or conservatorship that may be available. Such choices may include durable powers of attorney, living trusts or other options.