Elder law is a practice area that focuses on the unique legal issues that older individuals may face. Estate planning is a large component of elder law, and an important aspect, however, there are other issues that may arise. Those issues may be the need to have a guardian or conservator appointed, or to plan appropriately to ensure that an older individual’s assets will be sufficient to provide for the duration of his or her life. This often includes planning that will allow the older individual to qualify for various public and private benefits.
Guardianships and Conservatorships are considered “protective proceedings” when a person is unable to care for him/herself and/or his/her finances:
- A guardian is a person appointed by the court to make decisions regarding health care and other personal matters for an incapacitated adult. Under Oregon law, a guardian may be appointed for an adult or minor, called “protected person,” but only when necessary to protect and promote the well-being of the protected person. The guardianship “must be designed to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person’s actual mental and physical limitations.” The court will appoint a guardian once the court determines, by clear and convincing evidence, that the appointment is necessary as a means of providing continuing care and supervision of the protected person.
- The court may appoint a conservator if the court finds, again by clear and convincing evidence, that the protected person is either a minor or financially incapable, and that the protected person has money and/or property that requires management or protection.