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Scott Barbur, Barbur Laskey

New Oregon Law re Guardianships and Conservatorships

| Scott Barbur, Barbur Laskey

Oregon has passed a new bill designed to enhance protections of persons over whom a guardianship and/or conservatorship proceeding is being sought. The short of this bill is that if there is an objection to the proceeding an attorney will be appointed for the protected person (if they do not already have an attorney). Several counties, including Multnomah and Lane, already operate in such fashion. This will extend those protections statewide. The bill itself can be found here.

The Oregonian recently published an article championing these changes to the “Free Britney” movement in which the fans of pop star Britney Spears rallied against a rather dubious guardianship and conservatorship, fraught with intrafamily conflicts of interest over her millions of dollars, which was in place over her for over a decade. While these new changes offer new protections, they are not relatable to the “Free Britney” movement for the simple reason that Britney had lawyers! This article can be found here.

Not surprisingly, the media attention to the “Free Britney” movement described is the Oregonian article pits the guardianship and conservatorship process as a villain – essentially, a force by which persons with bad intentions can take advantage of some poor soul. The truth of the matter is that most guardianships and conservatorship are positive forces that operate for the good of all of those involved, including the protected persons. In most instances, these proceedings are necessary for the health and wellbeing of the protected person and are sought by a caring family member who has the best intentions of the protected person, be it their parent or developmentally disabled adult child, at the top of their mind. Yes, there can be some instances where this goes awry, and there is definitely a need for checks and balances, but guardianships and conservatorships should generally be viewed in a positive light and not a negative one.

The new Oregon law is positive, for the most part. It is not a bad idea for protected persons, especially those who are objecting, to have independent legal counsel in a serious and complex legal proceeding that will likely result in having somebody appointed to make decisions for them. It is also generous of the state to provide court-appointed attorneys – at the expense of the state for those who qualify (for those who do not, the court can require that those costs are paid from their own funds – perhaps that is a topic for another day!). In the worst instances, this may weed out a potential fraudulent guardian or conservator altogether. In the best (and more common) instances, the protected person will be able to limit the role of their guardian or conservator and keep some decision-making authority for themselves.

The negative consequence of the new Oregon law is one of access. Simply adding extra hurdles into the process creates a lengthier and more expensive process as a whole. The flip side of the coin is that the person seeking the guardianship or conservatorship will have to spend more time and money in that endeavor, which may make it unattainable for some. If this is the case, it will put the most vulnerable of the vulnerable in a position where nobody seeks a guardianship or conservatorship because nobody can, or will want to, handle the process.

At the end of the day, as with most things, there is no perfect solution. This new law will help some and hinder others. Protected persons who want an attorney will get one and can have a better opportunity to avoid a sham proceeding. Prospective guardians will need to make sure they have additional time and money to get through the process. The grand majority of people will continue to do what is best for their loved ones and the world will go on (at least until the next guardianship and conservatorship “fix!”).