Filling in Gaps in Oregon’s Guardianship Law
In the 2019 legislative session, Disability Rights Oregon advocated to strengthen individual choice and self-direction in guardianship proceedings.
In the 2019 legislative session, Disability Rights Oregon advocated to strengthen individual choice and self-direction in guardianship proceedings. SB 376 is a Disability Rights Oregon bill that promotes more sharing of information with people who have guardians and requires ongoing review of the continued need for a guardian.
On February 5, 2019, Disability Rights Oregon testified before the Senate Committee on the Judiciary.
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
SB 376 requires 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
the right of the adult to appeal the order and to seek removal of the guardian or termination of the guardianship
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.
Guardianship comes with a huge loss of civil liberties and should, therefore, be accorded strenuous Due Process rights.
When Guardianship 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 be forever, regardless of need.
SB 376 adds a provision stating directing the steps that a court shall take if a guardian reports in an annual guardianship report that the guardianship should not continue or does not provide adequate information to support its continuing need.
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.
