We’re thrilled to report that this legislative session delivered a big win for strengthening individual choice and self-direction in guardianship proceedings. Guardianship is where a judge appoints a third party to make vital life decisions for another adult who a judge has determined is not capable of making important decisions for themselves.
We’ve been advocating for SB 376 – legislation that promotes more sharing of information with people who have guardians and requires ongoing review of the continued need for a guardian. Both chambers unanimously passed the legislation, and Governor Brown signed the bill into law on May 6.
We testified twice before the legislature to advocate for this important legislation.
Notice that a Guardian Has Been Appointed
Guardianship profoundly affects an individual’s rights. The process allows a third party to be given authority to make vital life decisions for another adult. The directly-affected adult and those who are closely involved with the adult should receive basic information explaining the existence and effect of the guardianship.
There are robust notice requirements in Oregon law for petitions and motions in guardianship proceedings. Yet, there is no requirement that interested parties, including the protected person, be informed of the entry of an Order of Appointment of a guardian, the authority awarded to the guardian or the rights of an adult to appeal or seek termination of the guardianship.
Your Right to Know
Guardianship comes with a huge loss of civil liberties and should be accorded strenuous due process rights. The protected person and closely involved parties have a due process interest in being informed of their appeal rights. Letting the protected person and others know that the guardianship may be terminated in certain circumstances assures them that guardianship is not necessarily permanent.
SB 376 seeks to address the gaps in current law by requiring that the parties receive notice of:
- the entry of an Order of Appointment of a guardian,
- the authority awarded to the guardian and limits to that authority, and
- the right of the adult to appeal the order and to seek removal of the guardian or termination of the guardianship.
When Guardianships Should End
Oregon law requires guardians to submit annual reports to the court for oversight purposes. Question #14 in the form report asks the guardian to state if, in the guardian’s opinion, the guardianship should continue. The guardian must also supply information to support the continuing need for a guardian.
If a guardian reports that guardianship should not continue or states insufficient reason for its continuation, there is no requirement that the court make further inquiry into whether the guardianship is necessary.
Requiring Courts to Act
When a guardian can no longer justify the continuing need for the guardianship, the court should take action to replace the guardian or dissolve the guardianship. Otherwise, a guardianship would last forever, regardless of need.
SB 376 adds a provision directing the steps that a court must take if a guardian reports in an annual report that the guardianship should not continue or does not provide adequate information to support its continuing need.
Those steps include:
- court notice to the guardian for the need to supplement the report or
- file a motion to dissolve the guardianship.
If a guardian does not respond to the court, the court may initiate proceedings to remove the guardian.