Recent Additions to the Duties of a Guardian

If you are serving as or thinking of becoming the legal guardian of a loved one, you should understand that your role as guardian will come with certain legal requirements and limitations. In general, a guardian may establish a residence for a protected person, direct their medical care, and is charged with providing for their housing, comfort, and training or education. A list of the powers, duties, and limitations on a guardian are found in Oregon Revised Statutes 125.315 and 125.320.

What some guardians may not be aware is that there have been a number of changes in the rules and laws governing guardians in the last five years.

Guardian Partners Education Course:

Guardian Partners is a non-profit that provides guardians with training and monitoring in select counties throughout Oregon. If you are appointed as guardian in Multnomah, Clackamas, Lane, or Marion County, part of your duties as guardian will include taking an educational course provided by Guardian Partners. New counties are being added to this list annually. Failure to take the course within the time allowed by the court can result in the removal of a guardian, so it is very important to take the class upon appointment.

In addition to training classes, Guardian Partners provides volunteer monitors who provide status checks on guardians or protected persons. If problems arise during a guardianship, a monitor may be appointed to make recommendations to the court.

Duty to Provide Advance Notice of a Protected Person’s Change of Abode (Residence):

A guardian has always had an obligation to keep the court informed as to the whereabouts of a protected person. However, beginning January 1, 2017, when a guardian changes the abode (permanent residence) of a protected person, the guardian must first provide the protected person with a notice and opportunity to object to the change.

If a guardian is making a change on an emergency basis to protect the protected person’s health, welfare, or safety, the guardian must inform the court as soon as possible, and no later than two days after the change has occurred.

In the case of a temporary change in location, such as a short term stay at a hospital or rehabilitation facility, the guardian may not be required to report the change to the court. However, it is a good idea to check with your attorney any time the protected person is not located at their residence for a long period.

At the court’s discretion, it may remove a guardian who does not keep the court informed about a change in abode, or who does so late or without giving proper notice to the protected person. If you have questions about how to provide notice or who to provide it to, you should speak with a guardianship attorney.

Limiting Contact with the Protected Person:

A new law that will go into effect January 1, 2020, limits the ability of a guardian to prevent the protected person from associating with third parties. The guardian may limit association only with

  1. prior court approval, or
  2. if the health, safety, or well being of the protected person is put at risk by the association.

Guardians will now be required to inform the court if they have limited association with anyone in the annual Guardian’s Report. In addition, if a person feels they have been denied access to the protected person without sufficient reason, they may challenge the limitation in court. Failure to follow the new law can have serious consequences for a guardian. The court can require the guardian to pay a successful challenger’s costs and attorney fees if the court determines that a guardian has limited association unreasonably.

Going forward, the guardian must be careful to balance their duty of care to a protected person with the protected person’s right to freely associate with those they choose. A prudent guardian will carefully consider the medical necessity of limiting association with third parties. In cases where doing so is necessary, it may be appropriate to petition the court for permission to do so beforehand.

Substituting One’s Own Judgment for that of the Protected Person:

Also effective as of January 1, 2020, guardians are required to “promote the self-determination of the protected person, and to the extent practicable, encourage the protected person to participate in decisions […] and develop or regain the capacity to manage the protected person’s personal affairs.” (ORS 125.315(g)). In order to do so, the guardian is now required to:

  • Become or remain familiar with the protected person’s abilities, limitations, and health through regular in-person visitation;
  • Identify and take into account the values and preferences of the protected person in determining their care, residence, and activities;
  • Make efforts to provide the protected person with supportive relationships or services, and;
  • Make the types of decisions that the protected person themselves would make if able to do so.

Again, this focus on empowering the protected person means that the prudent guardian will carefully evaluate their duty to protect and care for the protected person on the one hand, and the requirement that they allow the protected person self-direction and choice on the other. A guardian should not substitute their own judgment for that of the protected person unless it is absolutely necessary. For example, a guardian should not forbid a protected person from drinking alcohol unless doing so is medically necessary, even if the guardian chooses not to drink themselves. A guardian who attends church should not require that the protected person do so against his or her wishes.

If you are a guardian and would like to learn more about the recent additions to duties, or have questions about the guardianship process, contact Brett Callahan at the Law Offices of Nay & Friedenberg today.