‘Elder Law’ FAQ & Articles

Question:
How can I avoid the necessity of a Guardianship or Conservatorship?

Answer:
If a person has planned ahead and prepared a Durable Power of Attorney (a Power of Attorney that is still valid if the person becomes incapacitated), and an Advanced Directive for Health Care, then, the person given the Power of Attorney should be able to step in and take over the affairs of the incapacitated person without the need for a Guardian or Conservator. Once a person has become incapacitated, however, they cannot legally make a Power of Attorney or sign an Advance Directive. Appointment of a Guardian or Conservator is likely the only option available if the person has not planned ahead.

Another planning option that many people use is known as a Revocable Living Trust, commonly known as a “Living Trust.” A Living Trust is a legal document that can provide for the management of your affairs if you become disabled or incapacitated. A Living Trust also can eliminate Probate upon your death.

Question:
What happens after the court appoints a Guardian or Conservator?

Answer:
Once the judge has appointed a Guardian or Conservator, they will be advised of their duties and will be given a court order appointing them Guardian and/or Conservator. Prior to appointing a Conservator, the court will require the proposed Conservator to file a bond in the amount of the assets to be protected to ensure the faithful performance of his or her duties. From this point forward, the Respondent is referred to as the “Protected Person.”

The Guardian is required to file an annual report with the court concerning the Protected Person’s status along with a description of the actions performed by the Guardian. The Conservator is required to file a detailed annual accounting with the court. This accounting must show all income paid to the Protected Person, all expenses paid on behalf of the Protected Person, and the amount of the assets being held by the Conservator. Copies of bank statements and receipts for income and expenses must accompany the accounting.

Question:
What happens if an objection is filed with the court in a Guardianship or Conservatorship proceeding?

Answer:
If an objection is received by the court, a hearing will be scheduled. In most case, the judge will appoint the Petitioner. In a contested case there may be testimony from the Respondent or other Interested Persons and witnesses. However, more frequently, the Respondent is incapacitated and the matter proceeds without their input or direction.

Question:
What happens in a Guardianship and Conservatorship proceeding?

Answer:
First, someone interested in the financial affairs and/or the well-being of a person believed to be incapacitated must file a legal petition with the Probate court and pay the required court filing fee. The person believed to be in need of a Guardian or Conservator is called the “Respondent.” The person who files the legal petition is call the “Petitioner.”

The petition must also be accompanied by a Notice to the Respondent and to any other interested person who must be notified of the pending legal action. The Respondent and any other interested person may file an objection with the court opposing the petition upon receiving notice of the Guardianship or Conservatorship case. The objection must be filed with the court within 15 days of receiving notice of the petition and must be submitted with the required filing fee.

After the petition has been filed, the court will appoint a “court visitor,” who will interview the respondent and any other interested persons with information concerning the petition. The court visitor will then provide a written report of their findings to the court along with a recommendation as to whether or not the visitor believes that appointment of a Guardian or Conservator is appropriate.

Question:
Why is a Guardianship or Conservatorship necessary?

Answer:
If a person becomes incapacitated due to an illness or injury and is no longer competent to make or sign legal documents, or cannont take care of their everyday needs, then a Guardian or Conservator may be necessary.

A person under the age of eighteen (18) years is disabled because of “minority” and cannot make or sign legal documents. A “minor” who owns property may require a Conservator to manage that property and may also require a Guardian to make every day decisions concerning the minor’s health, education, and welfare.

According to Oregon law, an adult guardianship is necessary if a person is incapacitated and lacks the present ability to meet the essential requirements for his or her physical health and safety. This means taking those actions necessary to provide health care, food, shelter, clothing, personal hygiene, and other care, without which serious physical injury or illness is likely to occur.

A Conservator is necessary if a person is financially incapable of effectively managing his or her financial resources. This means having the ability to take actions necessary to obtain, administer, and dispose of real and personal property, benefits and income.

Question:
I have been thinking about making out an Advance Directive for Health Care but keep putting it off. The subject is a rather morbid one, and I find it hard to address. What are the consequences of not having an Advance Directive?
Answer:
As you know, an Advance Directive for Health Care is a document in which a person can put in writing some important things in case he or she ever gets into a medical crisis. It permits the person to name an agent to make health care decisions if the person, in the opinion of the treating physician, does not have the capacity to make or communicate health care decisions. The Advance Directive also has a section permitting you to put in writing what kinds of medical treatment, including life support, you wish to receive under different scenarios. If you do not make out an Advance Directive, there are no directions, one way or another, as to what care you wish to receive when you are in a medical crisis. Obviously, your treating physician will talk to your next-of-kin about health care decisions, but the goal would be to try to determine what your wishes would have been had you been able to make decisions or communicate them.
You may recall the recent situation of the young woman from Florida. In 1990, when she was 26 years of age, she suddenly collapsed in her home after her heart stopped. This incident left her in a vegetative state where she was dependent upon feeding tubes to survive. After many years of keeping her alive in this vegetative state, her husband, who was her legal guardian, attempted to disconnect the feeding tubes. This action was opposed by her parents. The parents brought a court case to try to keep their daughter alive by keeping the feeding tubes in place. This one example speaks volumes about how something that should have been a personal decision got completely out of control. It also is a lesson for us all to put something in writing to avoid this happening to ourselves and our families

Answer:
I have heard that there may be changes in the Medicaid law. My mother, who is in poor health, has been making gifts to her grandchildren during the past couple of years. If she goes into long-term care, such as in a nursing home, are these gifts going to be a problem with eligibility for medical assistance to help pay for the cost of care?
Answer:
You are right about the changes. President Bush signed into law the Deficit Reduction Act of 2005. (“the Act”) which makes some significant changes to the Medicaid system. Following are a few of those changes:
1. The Act increases the “look-back” period. This is the period in which gifts that have been made by a person applying for long term care assistance are scrutinized. Under the old rules, a person who transferred or gave away assets for less than fair market value within 3 years prior to the Medicaid application could be assessed a penalty. The Act increases this “look-back” period to 5 years.
2. The Act also makes a fundamental change to how the penalty for making a gift is applied. Under the old rules, the Medicaid program imposed a penalty on persons making gifts during the “look-back” period. The penalty created a period of ineligibility for benefits and started when the gift was made. The Act changes that process so that the penalty starts from the date of application for medical assistance rather than from the date the gift was made. This change could have adverse consequences for many persons applying for long term care assistance who unwittingly made gifts during the last 5 years.

Question:
I have my son on my checking account so that he has access to my money and can pay bills. Recently, he has had a bit of a problem paying his own bills and is being sued by a credit card company. All the money in the account is mine and I can’t afford to lose it. Is there any problem for me by having his name on my account?
Answer:
Yes. You should take your son’s name off of your account as soon as possible.
If your son’s creditor gets a judgment against your son for the amount he owes, the creditor will then try to find ways of satisfying the judgment. One of the first things the creditor will look for is any bank accounts in your son’s name. The creditor can use the judgment to “garnish” any bank accounts in your son’s name. This “freezes” the account and you will not have access to your money to pay bills. Any checks that you may have outstanding may bounce and you may have to pay charges for “insufficient funds” even though you have money in the account. The bank may also charge you an administrative fee for having to go through the paperwork of the garnishment.
Even though the money in the account is yours, the creditor may argue that your son’s name on the account indicates that he is an owner of those funds and that he is entitled to some of the money in the account. The creditor may force you to go to court to prove that the funds in the account are totally yours and not subject to garnishment for your son’s judgment.
I often see older people placing a child’s name on their bank accounts as a way of planning for incapacity. However, as with all legal transactions, there are advantages and disadvantages which should be carefully discussed with an attorney prior to taking action. As in this case, placing someone on your bank account is not always the best or safest approach and can have unexpected and undesirable consequences.

Question:
My grandfather is becoming increasingly forgetful and is having difficulty paying his bills and taking care of himself. Should I be considering a guardianship or conservatorship for him?
Answer:
Not necessarily. Guardianship or conservatorship is not needed in every case where a loved one requires financial management or personal care help. Oregon has strict standards that must be met in order to establish a guardianship or conservatorship. To determine if a guardianship or conservatorship is appropriate you should always contact an attorney. The attorney will review with you the standards that must be met to establish a guardianship or conservatorship and help you identify reasonable alternatives to a guardianship or conservatorship. You may discover that there are less restrictive alternatives for meeting your grandfather’s needs short of a legal guardianship or conservatorship.

Question:
My grandfather has been diagnosed with Alzheimer’s Disease. I am trying to help him with his affairs. I have a Power of Attorney for him but someone told me that I may need something else to make medical decisions for him. Is that right?
Answer:
A Power of Attorney will allow you to take care of necessary financial, banking, tax, legal, and other matters if your grandfather is unable to do so. In addition to the Power of Attorney your grandfather should also have an Advance Directive for Health Care. The Advance Directive allows a person to give health care instructions to his physician and to name a person (called a health care representative) to speak for him about medical treatment if he cannot speak for himself. To give a power of attorney or to appoint a health care representative, the person making the appointment must understand what he or she is doing. Once a person loses capacity, it is too late for that person to give someone a power of attorney or to appoint a health care representative. At that point, a conservator or a guardian can be appointed by the court if there is a need. You should speak with an Elder Law attorney to help you understand the options available to you and your grandfather and determine which of those options fits your situation.