Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities. | Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
Subject to court limitation, a guardian’s powers and duties include the following:
(a) Except to the extent of any limitation under the order of appointment, the guardian has custody of the protected person and may establish the protected person’s place of abode within or without this state.
(b) The guardian shall provide for the care, comfort and maintenance of the protected person and, whenever appropriate, shall arrange for training and education of the protected person. Without regard to custodial rights of the protected person, the guardian shall take reasonable care of the person’s clothing, furniture and other personal effects unless a conservator has been appointed for the protected person.
(c) The guardian may consent, refuse consent or withhold or withdraw consent to health care, as defined in ORS 127.505, for the protected person. A guardian is not liable solely by reason of consent under this paragraph for any injury to the protected person resulting from the negligence or acts of third persons.
(d) The guardian may make advance funeral and burial arrangements, control the disposition of the remains of the protected person, and make an anatomical gift of all or any part of the body of the protected person.
(e) The guardian of a minor has the powers and responsibilities of a parent who has legal custody of a child, except that the guardian has no obligation to support the minor beyond the support that can be provided from the estate of the minor, and the guardian is not liable for the torts of the minor. The guardian may consent to the marriage or adoption of a protected person who is a minor.
(f) The guardian may receive money and personal property deliverable to the protected person and apply the money and property for support, care and education of the protected person. The guardian shall exercise care to conserve any excess for the protected person’s needs.
(g)The guardian shall promote the self-determination of the protected person and, to the extent practicable, encourage the protected person to participate in decisions, act on the protected person’s own behalf and develop or regain the capacity to manage the protected person’s personal affairs. To accomplish the duties under this paragraph, the guardian shall:
(A) Become or remain personally acquainted with the protected person and maintain sufficient contact with the protected person, including through regular visitation, to know the protected person’s abilities, limitations, needs, opportunities and physical and mental health;
(B) To the extent practicable, identify the values and preferences of the protected person and involve the protected person in decisions affecting the protected person, including decisions about the protected person’s care, dwelling, activities or social interactions; and
(C) Make reasonable efforts to identify and facilitate supportive relationships and services for the protected person.
(h) In making decisions for the protected person, the guardian shall make the decisions the guardian reasonably believes the protected person would make if the protected person were able, unless doing so would unreasonably harm or endanger the welfare or personal or financial interests of the protected person. To determine the decision the protected person would make if able, the guardian shall consider the protected person’s previous or current instructions, preferences, opinions, values and actions, to the extent actually known or reasonably ascertainable by the guardian.
(i) If the guardian cannot make a decision under paragraph (h) of this subsection because the guardian does not know and cannot reasonably determine the decision the protected person would make if able, or the guardian reasonably believes the decision the protected person would make would unreasonably harm or endanger the welfare or personal or financial interests of the protected person, the guardian shall act in accordance with the best interest of the protected person. In determining the best interest of the protected person, the guardian shall consider:
(A) Information received from professionals and persons that demonstrate sufficient interest in the welfare of the protected person;
(B) Other information the guardian believes the protected person would consider if the protected person were able; and
(C) Other factors a reasonable person in the circumstances of the protected person would consider, including consequences for others.
If a conservator has been appointed for the protected person, the guardian may file a motion with the court seeking an order of the court on the duties of the conservator relating to payment of support for the protected person.
A guardian may consent to the withholding or withdrawing of artificially administered nutrition and hydration for a protected person only under the circumstances described in ORS 127.580 (Presumption of consent to artificially administered nutrition and hydration) (1)(a), (b), (d), (e) or (f) and, if the protected person has a medical condition specified in ORS 127.580 (Presumption of consent to artificially administered nutrition and hydration) (1)(b), (d), (e) or (f), the condition has been medically confirmed.
A guardian may not take any of the following actions, without prior court approval:
(1) A guardian may not authorize the sterilization of the protected person.
(2) A guardian may not use funds from the protected person’s estate for room and board that the guardian or guardian’s spouse, parent or child have furnished the protected person unless the charge for the service is approved by order of the court before the payment is made.
(3) Before a guardian may change the abode of an adult protected person or place an adult protected person in a mental health treatment facility, a nursing home or other residential facility, the guardian must file with the court and serve a statement declaring that the guardian intends to make the change of abode or placement. The statement must be filed and served in the manner provided for serving a motion under ORS 125.065 (Manner of giving notice) to the persons specified in ORS 125.060 (Who must be given notice) (3) and (8) at least 15 days prior to each change of abode or placement of the protected person. When the guardian determines that the change of abode or placement must occur in less than 15 days to protect the immediate health, welfare or safety of the protected person or others, the statement shall declare that the change of abode or placement must occur in less than 15 days to protect the immediate health, welfare or safety of the protected person or others. The statement must be filed and served with as much advance notice as possible, in no event later than two judicial days after the change of abode or placement occurs. The guardian may make the change of abode or placement prior to a hearing on any objection.
In addition to the requirements of ORS 125.070 (Contents of notice) (1), the notice given to the protected person must clearly indicate the manner in which the protected person may object to the proposed placement.
The court shall schedule a hearing on any objection to a statement filed under this subsection made in the manner provided by ORS 125.075 (Presentation of objections) for presenting objections to a petition or motion in a protective proceeding. If no objection is made, the guardian may change the abode of the adult protected person or place the adult protected person in a mental health treatment facility, a nursing home or other residential facility without further court order.
The requirement that notice be served on an attorney for a protective person does not impose any responsibility on the attorney receiving the notice to represent the protected person in such proceeding.
A guardian for a protected person who is a vulnerable youth may not possess or control the youth’s identity documents.
A conservator may perform the following acts only with prior court approval:
(1) Convey or release contingent or expectant interests of the protected person in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(2) Create revocable or irrevocable trusts of property of the estate. A trust created by the conservator may extend beyond the period of disability of the protected person or beyond the life of the protected person. A trust created by the conservator must be consistent with the will of the protected person or any other written or oral expression of testamentary intent made by the protected person before the person became incapacitated. The court may not approve a trust that has the effect of terminating the conservatorship unless:
(a) The trust is created for the purpose of qualifying the protected person for needs-based government benefits or maintaining the eligibility of the protected person for needs-based government benefits;
(b) The value of the conservatorship estate, including the amount to be transferred to the trust, does not exceed $50,000;
(c) The purpose of establishing the conservatorship was to create the trust; or
(d) The conservator shows other good cause to the court.
(3) Exercise rights of the protected person to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value.
(4) Disclaim any interest the protected person may have by testate or intestate succession, by inter vivos transfer or by transfer on death deed.
(5) Authorize, direct or ratify any annuity contract or contract for life care.
(6) Revoke a transfer on death deed.
A conservator may perform the following acts without prior court authorization or confirmation if the conservator is acting reasonably to accomplish the purposes for which the conservator was appointed:
(1) Collect, hold and retain assets of the estate including land wherever situated, until, in the judgment of the conservator, disposition of the assets should be made. Assets of the estate may be retained even though those assets include property in which the conservator is personally interested.
(2) Receive additions to the estate.
(3) Continue or participate in the operation of any business or other enterprise.
(4) Acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest.
(5) Invest and reinvest estate assets and funds in the same manner as a trustee may invest and reinvest.
(6) Deposit estate funds in a bank including a bank operated by the conservator.
(7) Except as limited in ORS 125.430 (Sale of protected person’s residence), acquire or dispose of an estate asset including real property wherever situated for cash or on credit, at public or private sale.
(8) Manage, develop, improve, exchange, partition, change the character of or abandon an estate asset in connection with the exercise of any power vested in the conservator.
(9) Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, or raze existing or erect new party walls or buildings.
(10) Subdivide, develop or dedicate land to public use, make or obtain the vacation of plats and adjust boundaries, adjust differences in valuation on exchange or partition by giving or receiving considerations, and dedicate easements to public use without consideration.
(11) Enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship.
(12) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
(13) Grant an option involving disposition of an estate asset or take an option for acquisition of any asset.
(14) Vote a security, in person or by general or limited proxy.
(15) Pay calls, assessments and any other sums chargeable or accruing against or on account of securities.
(16) Sell or exercise stock subscription or conversion rights, or consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise.
(17) Hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery. The conservator is liable for any act of the nominee in connection with the stock so held.
(18) Insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons.
(19) Borrow money to be repaid from estate assets or otherwise and mortgage or pledge property of the protected person as security therefor.
(20) Advance money for the protection of the estate or the protected person, and for all expenses, losses and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets. The conservator has a lien on the estate as against the protected person for advances so made.
(21) Pay or contest any claim, settle a claim by or against the estate or the protected person by compromise, arbitration or otherwise, and release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible.
(22) Pay taxes, assessments, compensation of the conservator and other expenses incurred in the collection, care, administration and protection of the estate.
(23) Allocate items of income or expense to either income or principal, including creation of reserves out of income for depreciation, obsolescence or amortization, or for depletion in mineral or timber properties.
(24) Pay any sum distributable to a protected person or a dependent of a protected person by paying the sum to the protected person or the dependent, or by paying the sum either to a guardian, custodian under ORS 126.700 (Payment or delivery for benefit of minor), or conservator of the protected person or, if none, to a relative or other person with custody of the protected person.
(25) Employ persons, including attorneys, auditors, investment advisers or agents, even though they are associated with the conservator, to advise or assist the conservator in the performance of administrative duties, acting upon their recommendation without independent investigation, and instead of acting personally, employing one or more agents to perform any act of administration, whether or not discretionary, except that payment to the conservator’s attorney of record is subject to the provisions of ORS 125.095 (Fees, costs and disbursements payable in protective proceedings).
(26) Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of duties.
(27) Prosecute claims of the protected person including those for the personal injury of the protected person.
(28) Execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the conservator.