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- Law Practice Focused on Guardianships and Conservatorships for Adults and Medicaid (not Medicare) Counseling
- More Than 15 Years Of Experience As An Elder Law Attorney
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Guardianship Lawyer in Gresham, Oregon
A guardian is a person appointed by the court with the legal authority and duty to make certain decisions concerning the care, comfort and custody of another person. Common types of decisions a guardian may be authorized to make concerning the protected person are where the protected person lives and the type of medical care the protected person receives.
A guardianship may be established only by a court. It takes away certain civil rights from the person for whom the guardianship is established. This person is called the “protected person.” (In former times, this person was referred to as the ward.) At the same time that the court removes certain civil rights from the protected person, it appoints a guardian and gives the guardian certain powers and duties over the protected person. One significant right a protected person loses and the guardian gains is the authority to decide where the protected person will live. The powers of a guardian generally are concerned with making decisions having to do with the care, comfort and maintenance of the protected person. Management of a protected person’s property and finances may (or may not) require the court appointment of a conservator.
Before a court will grant a guardianship, it must receive evidence (i.e. in the filed petition, the court visitor’s written report, and sometimes also during a court hearing) and be persuaded that the proposed protected person is impaired to the point where he or she cannot adequately provide for his or her own care or make arrangements to receive adequate care, and that this inability is likely to lead to serious physical injury or illness of the proposed protected person. In the language of lawyers, before a court may impose a guardianship, the court must decide that a person is “incapacitated.”
In addition, because a protected person loses important civil rights, a guardianship is a solution of last resort--if there are realistic, less restrictive strategies that could be put in place to provide adequate care for the person so that serious physical injury or illness is no longer likely to occur, those strategies should be tried first. Some examples of less restrictive strategies are: having Meals on Wheels delivered; scheduling regular in-home care to help with shopping, meal preparation, laundry, house-cleaning and other tasks; hiring a bath aide; daily phone calls to check on the person; help with medication management; using fall alert devices; or voluntarily moving into or living in a residence that provides assistance with those activities of daily living (ADLs) that the person needs help with. Hiring a geriatric care manager or other qualified professional to prepare a written assessment and recommend other support strategies can be useful to identify current care deficiencies and in-home risks and suggest ways to reduce or eliminate the deficiencies and risks.
Examples of red flags that may indicate the need for a guardianship include:
- The person’s wandering away from home or becoming lost, whether on foot or while driving.
- The person’s leaving the house dressed in inappropriate clothing for the weather.
- The person’s falling and being injured, or falling and being “down” for an extended period of time.
- Routinely finding spoiled food in the person's refrigerator.
- Instances of the person’s hitting, kicking, or biting another person.
- The person’s failure to regularly and correctly take necessary medications.
- Police being called because of the person’s behavior.
- Instances of the person’s doing something or behaving in a way that puts his or her safety at risk.
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