Being a guardian is a significant responsibility that requires a thorough understanding of the powers and duties of the role. In this blog post, we will briefly discuss the duties and powers of a guardian. While informative, this blog post is strictly for educational purposes and does not constitute legal advice. If you have been appointed as a guardian, it is important to work with a guardianship attorney.

What you need to know when appointed as guardian and how a guardianship attorney can help.

A guardian is a person appointed by a court to manage the personal and/or financial affairs of another person, known as the “protected person.” The primary responsibility of a guardian is to promote and protect the welfare of the protected person. This means that the guardian must always act in the best interest of the protected person when making decisions.

In addition to the general duty to promote and protect the welfare of the protected person, a guardian may also have specific powers and duties as outlined by state statutes. These may include the power to determine the place of abode for the protected person, the duty to provide for the care and maintenance of the protected person, and the power to make healthcare decisions for the protected person.

It is important for a guardian to understand and fulfill their duties in order to properly care for the protected person and ensure their well-being. If you have been appointed as a guardian, it is crucial to work with a guardianship attorney to fully understand your powers and duties as outlined in state law. A guardianship attorney can provide guidance and assistance in fulfilling your responsibilities as a guardian, ensuring that you are acting in the best interests of the protected person.

Guardianship Powers

The power to determine the place of abode for the protected person

A guardian has the power to establish the protected person’s place of residence within or outside of the state, unless this power is specifically limited by the order of appointment. However, beginning in 2018, the guardian must notify the court of any intent to change the abode of an adult protected person.

The duty to provide for the care, comfort, and maintenance of the protected person

The guardian must ensure that the protected person is provided with the necessary care and support to maintain their physical and emotional well-being. This may include arranging for medical treatment, assisting with daily activities such as bathing and dressing, and ensuring that the protected person’s basic needs are met. When appropriate, the guardian may also be responsible for arranging for the education and training of the protected person.

The duty to take care of the protected person’s personal belongings

The guardian must take reasonable care of the protected person’s clothing, furniture, and other personal effects, unless a conservator has been appointed to manage these assets.

The power to consent, refuse consent, or withdraw consent to healthcare for the protected person

The guardian has the authority to make healthcare decisions for the protected person, including the power to consent, refuse consent, or withdraw consent to medical treatment. The guardian is not liable for any injury to the protected person resulting from such consent. However, the guardian must follow certain provisions regarding advance directives and the appointment of healthcare representatives, as well as the provisions of ORS 125.315(3), which govern when a guardian may withhold or withdraw artificially administered nutrition and hydration for a protected person.

It is important for a guardian to understand and fulfill their statutory powers and duties in order to properly care for the protected person and ensure their well-being. If you have been appointed as a guardian, it is crucial to work with a guardianship attorney to fully understand your powers and duties as outlined in state law. A guardianship attorney can provide guidance and assistance in fulfilling your responsibilities as a guardian, ensuring that you are acting in the best interests of the protected person.

Guardian’s Report

One of the responsibilities of a guardian is to keep the court informed about the welfare and financial affairs of the protected person. To fulfill this obligation, the guardian must report to the court on a regular basis, typically annually. The report should include information about the protected person’s physical and emotional well-being, as well as their financial situation.

In addition to reporting to the court, the guardian must also provide an accounting of their actions as guardian. This includes keeping track of all expenses related to the protected person’s care and providing documentation of these expenses. The guardian must also provide a list of the protected person’s assets and any changes to these assets during the reporting period.

Working with a guardianship attorney can be especially helpful when it comes to fulfilling the reporting obligations of a guardian. A guardianship attorney can assist with preparing and filing the necessary reports, as well as providing guidance on how to properly document and account for expenses and assets.

Filing a petition for termination or modification of guardianship

In some cases, it may be necessary for a guardian to file a petition for the termination or modification of guardianship. This could be due to a change in the protected person’s circumstances, such as an improvement in their physical or mental capacity, or the appointment of a new guardian.

To file a petition for termination or modification of guardianship, the guardian must typically complete and file the necessary legal forms with the court. These forms may vary depending on the state and the specific circumstances of the case.

Working with a guardianship attorney can be especially helpful when it comes to filing a petition for the termination or modification of guardianship. An attorney can assist with the process of preparing and filing the necessary legal forms, as well as providing guidance on the legal requirements and procedures involved in seeking a change to the guardianship arrangement.

It is important to understand that the court has the final say in determining whether to grant a petition for termination or modification of guardianship. The court will consider factors such as the best interests of the protected person and the ability of the guardian to fulfill their duties. A guardianship attorney can help to present a strong case to the court in support of the petition and can advocate on behalf of the guardian and the protected person.

Limitations on Guardian’s Powers

There are several limitations on the powers of a guardian:

Sterilization

A guardian may not authorize the sterilization of the protected person.

Use of protected person’s funds for room and board or services of relatives

Without prior court approval, a guardian may not use the protected person’s funds to pay for room and board for the protected person that is provided by the guardian or the guardian’s spouse, parent, or child. Similarly, prior court approval is required for payment of compensation to a spouse, parent, or child of the guardian (or to a business in which such a person has an interest) if the guardian employs the person to provide direct services to the protected person.

Change in abode or placement in residential facility

Before changing the protected person’s abode or placing the protected person in a mental-health facility, nursing home, or other residential facility, the appointed guardian must file a statement with the court and serve it to the relevant parties declaring the intent to make the change or placement. A hearing will be held on any objections, and if no objections are presented, the guardian may move the protected person. However, if the guardian determines that the change or placement must occur in less than 15 days to protect the immediate health, welfare, or safety of the protected person or others, the move can be made with as much advance notice as possible, but the guardian must file a statement with the court within three days of the move.

Marriage and divorce

A guardian may not consent to the marriage or divorce of the protected person.

Disposition of remains

A guardian may not make a disposition of the protected person’s remains without prior court approval.

Execution of documents

A guardian may not execute any document on behalf of the protected person unless specifically authorized by the court or required by law.

Placement in a nursing home

A guardian may not place the protected person in a nursing home without prior court approval, unless the protected person has been determined to be incapacitated and in need of placement in a nursing home.

Administration of medications

A guardian may not administer any medication to the protected person unless specifically authorized by the court or required by law.

Power of Attorney

A guardian may not execute a power of attorney on behalf of the protected person unless specifically authorized by the court.

Sale or transfer of protected person’s property

A guardian may not sell or transfer any property of the protected person without prior court approval, unless the sale or transfer is necessary for the protected person’s maintenance and support.

It is important for a guardian to be aware of these limitations in order to properly fulfill their duties. A guardianship attorney can provide guidance on these limitations and ensure you are complying with all laws and regulations.

How A Guardianship Attorney Can Help

Being a guardian is a significant responsibility that requires a thorough understanding of the powers and duties of the role. Working with a guardianship attorney can be especially helpful in navigating the legal requirements and responsibilities of being a guardian.

If you have been appointed as a guardian or are considering becoming a guardian, it is important to work with a guardianship attorney to ensure that you are fulfilling your duties.

At Soriano Law, we have extensive experience in the area of guardianship law. We can provide the expert guidance and assistance you need to fulfill your duties as a guardian. If you are in need of a guardianship attorney, call to learn more about how we can help. Our team is here to assist you and your family with whatever you may need.