Creasey Law

Creasey Law, LLC


3 things to consider before initiating an adult guardianship or conservatorship action

Does the guardianship or conservatorship legal action accomplish your goal? It's important to be clear in defining your goals. For example, let's say you are struggling to help an adult child who makes dangerous choices due to untreated mental health issues. Your goal is to force your son to obtain medical assistance from a psychiatrist. In this situation, a guardianship over your child will give you the legal authority to do so. The guardianship, however, doesn't eliminate the practical challenge of forcing your son to take medication daily if your son is not ready to comply. In order to force compliance, you may have to place your son in a restricted living arrangement. The authority under a guardianship allow gives you the power to do so, but emotionally, you may decide its the best choice. Then, the guardianship doesn't accomplish your desired outcome.

Do you have medical evidence? Most judges are reluctant to make a finding of "incapacity" for a guardianship and conservatorship unless there is a medical professional who is willing to state (either in a writing or in the courtroom) the a person needs legal protection in the form of a fiduciary.

Who is suitable to serve as the guardian and conservator? The guardian and conservator are appointed by the court. In making its determination, the court will hire a court visitor to interview the person who is alleged to be needing protection and the person who is willing to agree to serve as the court appointed fiduciary. In Oregon, a fiduciary cannot, as a general rule, been convicted of a crime, has filed for or received protection under the bankruptcy laws or has had a license revoked or canceled that was required by the laws of any state for the practice of a profession or occupation