Guardianship is a highly intrusive restriction on the rights and self-determination of a person. In this legal process, a judge is asked to determine if a person is capable of making important decisions for themselves. If the judge determines that they are not, the judge appoints an adult to make those decisions for the person.
Guardianship strips an individual of their right to control their own residence, healthcare, and spending. Guardians can make major changes to a person’s life without the person having a meaningful opportunity to object. There is very little monitoring of guardianships once they are in place.
For nearly 30 years, DRO has been fighting to uphold the civil rights of individuals under guardianship. DRO works to ensure that individuals understand their rights and can have any objections heard by the court.
Pre-1990: Low Bar to Get Guardianship
Before 1990, guardianships were easy to get. Judges routinely appointed them based upon a letter from a doctor. Oregon was unique in not requiring a court hearing before a guardian was appointed and not requiring that a person have access to an attorney to represent their interests.
1991 Legal Victory
In 1991, DRO filed a federal lawsuit against a judge who had appointed a temporary guardian for a woman who was subsequently held on a psychiatric ward by direction of her husband/guardian while he emptied their bank accounts and fled Oregon. The case, Grant v. Johnson, contended that when a court appoints a guardian, the person is entitled to proper notice and an opportunity to be heard.
DRO won the case.
Transforming Oregon’s Guardianship Law
Shortly thereafter, the entire Oregon guardianship law was changed. The bill maximized self-reliance and independence of the protected person. It was the product of a work group of which DRO was a member. It contained the due process requirements that had been recognized by the federal court and included this provision:
A guardianship for an adult person 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.
(2) An adult protected person for whom a guardian has been appointed is not presumed to be incompetent.
(3) A protected person retains all legal and civil rights provided by law except those that have been expressly limited by court order or specifically granted to the guardian by the court. Rights retained by the person include but are not limited to the right to contact and retain counsel and to have access to personal records.
DRO Successfully Advocates for Greater Oversight of Guardians
For years thereafter, DRO advocated in the legislature for a requirement that all guardianship proceedings must include appointed lawyers for those affected. Failing that, DRO was able to secure a change in the law so that DRO was notified whenever a guardianship was sought in order to place a person in an institutional setting.
That was 1999, the same year that DRO worked with a task force to create special requirements for professional guardians.
In 2004, DRO created its first Guardianship Handbook for people with disabilities. It has been amended many times since then to stay current with law changes. And DRO has been able to secure many changes to the law to give people more notice and opportunity to be heard by a judge in guardianship proceedings.