Legal Guardianship

Guardianship is a legal relationship set up by a court. A judge gives a guardian authority to make certain decisions for an adult. A judge does this only when the adult cannot meet their own essential health and safety needs, even with support.

Oregon has two kinds of court appointment:

• Guardian: makes decisions about personal care and well-being, such as health care and where the person lives.
• Conservator: manages money and property.

A court can appoint a guardian, a conservator, or both. The court order says what the guardian may decide, and it must be no broader than the person needs. A limited guardianship covers only some areas of a person’s life. A temporary guardianship is for an urgent situation and usually lasts no more than 30 days.

The person keeps every right the court order does not take away. The general powers and duties of a guardian are in ORS 125.315.

The Arc Oregon does not help families get guardianship. If other options have not worked, the court process is the next step.

The basic steps are:

1. A petition is filed with the circuit court in the county where the person lives.
2. The person, and other people the law names, receive notice of the petition.
3. The court appoints a court visitor. The visitor interviews the person, the proposed guardian, and others, then reports to the court.
4. The person or others can object. If there is an objection, the court holds a hearing.
5. The judge decides whether guardianship is needed and who should serve. The order must be no broader than the person needs.

A parent can file up to 90 days before their child turns 18. Guardianship does not start automatically at 18, and many young adults do not need it.

We recommend talking with an attorney who handles guardianship. You are not required to have one, but the process is complex.

Where to start:

• Oregon Judicial Department: Guardianship and Conservatorship
• Oregon State Bar Lawyer Referral Service (low-cost first consultation)
• Oregon Law Help
• FACT Oregon: Transition to Adulthood, for families of youth turning 18
• Disability Rights Oregon: Guardianship for Adults FAQ
• Oregon WINGS
• More free and low-cost legal help

For the law on protective proceedings, see ORS chapter 125.

An intellectual or developmental disability is not, by itself, a reason for guardianship.

Under Oregon law, a judge can appoint a guardian only if the person cannot receive and evaluate information, or communicate decisions, well enough to meet their essential health and safety needs. Without help, the person must be likely to suffer serious physical injury or illness. The judge must find this by clear and convincing evidence, and must find that guardianship is necessary. See ORS 125.305.

In many cases, there are no easy answers to this question. The person’s decision-making capacity, medical needs, residential issues, and need for advocacy assistance should be considered. Individuals with similar abilities may require different levels of intervention and assistance, depending on their family involvement, living situations and available supports.

Questions to consider:

• Does the person understand that a particular decision needs to be made?
• Does the person understand the options available in any decision?
• Does the person understand the consequences of each option?
• Given support and objective assistance, can the person make a decision based on knowledge of the situation?
• Is the person able to properly inform appropriate parties once the decision has been made?
• Can the person express personal wishes and preferences?
• Is the person living in a residence where these preferences are respected?
• Does the person have a sense of what is needed for their own well-being?
• Does the person understand basic medical treatment decisions related to their medical needs?

Legal guardianship should be sought only after all suitable alternatives have been explored and proven to be ineffective.

There are less restrictive ways to support a person. Some help the person make their own decisions. Others give someone limited authority in one area. Each option solves a different problem, so the right mix depends on the person.

Making decisions with support

• Supported decision-making: the person chooses trusted people to help them understand choices and communicate decisions. It does not give anyone legal authority to decide for the person. See ODHS: Supported Decision-Making.

Health care

• Advance directive: the person records their health care wishes and can name a health care representative.
• Health Care Advocate: for an adult receiving Oregon IDD services, an HCA can help with health care decisions when no one else has that role.
• Declaration for Mental Health Treatment: the person records choices about mental health treatment.

Money and benefits

• Representative payee: manages Social Security or SSI payments.
• Power of attorney: the person gives someone authority for specific tasks, often financial ones.
• Trust account: manages assets and can protect benefits.

Narrower court options

• Conservatorship: the court appoints someone to manage money and property.
• Limited guardianship or a protective order: the court gives authority for specific areas only.

A person must be able to understand what they are signing to set up an advance directive or power of attorney. It is a good idea to talk with an attorney experienced in disability issues, so a plan does not put government benefits at risk.

For more information on each of these and other options, download the Options in Oregon booklet developed by the Oregon Department of Human Services (DHS) and the Oregon WINGS (Working Interdisciplinary Network of Guardianship Stakeholders). 

Yes. A person with a guardian keeps their legal and civil rights, except the rights the court order specifically limits or gives to the guardian. Having a guardian does not mean a person cannot make any decisions.

Oregon law also protects the person’s right to communicate with, visit, and spend time with people they choose. A guardian can limit this only in specific situations, and the court can review it.

Some limits on a guardian:

• A guardian cannot consent to sterilization.
• A guardian must give at least 15 days’ notice before moving the person to a new residence or certain facilities, except in an emergency. If someone objects, the court holds a hearing.
• A limited guardian can act only in the areas the court names.

Some medical and family-law decisions have their own legal rules. A guardian should talk with an attorney before making an unusual decision of that kind.

For details, see ORS 125.300, ORS 125.320, and ORS 125.323.

Our GAPS Advocates become a part of a person’s life, listening to their needs, being a trusted friend, and supporting them with important decisions about where they live, medical care, supports and services, future planning, and enhancing the quality of life. This approach applies whether The Arc Oregon is appointed legal guardian or Health Care Advocate, or is acting in an advocacy role.

In addition to following the best practices guidelines of the National Guardianship Association, we work closely with the person’s support team to ensure  all supports and services are designed in a way that honors the person’s values and choices.

The GAPS Advisory Committee supports the GAPS program representatives by offering advice and oversight. The committee is made up of volunteers who have interest, experience, and expertise in supporting people with IDD. In addition to personal experience, members may have an area of proficiency that helps the GAPS staff make informed decisions about medical, legal, behavioral and other aspects of a person’s life.

Whenever and to whatever extent possible, the individual is directly involved in the decision-making process.

To find out if our services are right for the person, we start with a conversation. We would like to meet with the person and their support team to learn more about them. From there, we can help develop a plan of support for the person, determine what services are needed, and guide you through the service application process.

Our professional guardianship and Health Care Advocacy services have fees. We work with each person or their team to make a payment arrangement. GAPS does not have funds to pay for guardianship services. We also cannot help pay legal fees for someone to become a guardian.

The Arc Oregon is a choice of last resort, so if there is a family member or other trusted friend in the person’s life that can serve as guardian, we may choose not to step into that role.

To start, make a GAPS referral. Questions first? Contact us.

You can plan for it, but a will does not appoint the next guardian. When a guardian dies, their authority ends. The court then holds a process to appoint a successor guardian (see ORS 125.230). The court considers the person’s wishes and a parent’s preferences, but the judge makes the decision.

If you are a family member serving as guardian and want The Arc Oregon to be the next guardian, first meet with the GAPS Program Director and complete a guardianship application. You can then name The Arc Oregon in your will or other planning documents as your choice of successor. This tells the court what you want.

To start, make a GAPS referral and choose Testamentary Guardianship.