Guardians, Conservators,

Powers of Attorney, and

Advanced Directives: A
Guide for Families and
Long Term Care
Providers in Oregon

Orrin R. Onken
Attorney at Law

CONTENTS
Introduction ......................................

Financial Powers of Attorney ...........

The Advanced Directive ...................

Trusts ................................................

Going to Court ..................................

Conservatorships ...............................

Guardianships ..................................

10

All Rights Reserved

Orrin R. Onken
2008

Introduction
Most of us recognize that at some
point in our lives we may need another
person to make financial or health care
decisions for us. We understand that
disability can take away the skills we use
to make those decisions. In the world of
aging and long term care the most
common disability is dementia.

Dementia is a
deterioration
of intellectual
capacity due
to damage in
the brain.

Dementia is a deterioration of
intellectual capacity due to damage within
the brain. The most common cause of
dementia is Alzheimer's disease, however,
it can also be caused by strokes, tumors or
any one of several other medical
conditions. The severity of cognitive
impairment among people with dementia
varies. In some it is no more than mild
memory loss. In others dementia can
prevent the sufferer from recognizing his
or her closest love ones. At some point in
that continuum, long term care providers
must begin looking for surrogate decision
makers to make financial and health care
choices for the impaired person.
The most common method of
appointing a surrogate decision maker is
by anticipating the problem and executing
legal documents while a person is still
able to comprehend their meaning and
consequences. This is part of normal
estate planning. A will is planning for
death. A financial power of attorney, an
advanced directive for health care, and a
revocable trust are legal instruments that

provide direction to family and care takers

in case of incapacity.

A financial
power of
attorney and
an advanced
directive are
used to plan
for incapacity.

A court may
appoint a
guardian, a
conservator or
both.

Sometimes elders have not

planned ahead, or the documents executed
by the impaired person turn out to be
insufficient to address the problems that
arise. In these cases families must turn to
the courts. In Oregon the court can
appoint a conservator, whose job it is to
make financial decisions for the impaired
person. The court can appoint a
guardian, whose job it is to make
medical and placement decisions for the
impaired person. Often the court will
appoint both.

Planning That Does Not

Involve the Courts
The Financial Power of Attorney

The power of
attorney is one
of the most
abused legal
tools in the
elder care field.

When you sign a financial power of

attorney you give a family member or
trusted friend the power to make financial
decisions and execute documents for you.
The surrogate decision maker named in the
document can write checks, enter contracts,
pay bills and do a wide variety of financial
actions on your behalf. When properly executed in advance of a disability, a financial power of attorney can be extremely
useful in protecting an impaired person's
money. The power of attorney is also one
of the most dangerous and most abused legal tools in the elder care field.
Financial powers of attorney come
from various sources. People get them from
lawyers, from financial institutions, from
office supply stores, and off the Internet.
In a power of attorney the signer is known
as the principal. The principal appoints
an agent to make decisions on the principal's behalf. Most people sign a power of
attorney when doing an estate plan as part
of planning for incapacity. However, the a
power of attorney is effective the moment
it is signed and remains valid until the principal revokes it or dies. The principal does
not have to be incapacitated in order for the
agent to use it. The document can be used
-- or abused -- immediately after it is
signed.

ADVANTAGES OF THE POWER OF

ATTORNEY

A power of
attorney must
be signed when
an elder still
has the
capacity to
understand its
terms and its
consequences.

A power of attorney is the least expensive and least complex of the methods
for appointing a surrogate decision maker.
Although the law allows the agent to enter
financial transactions for the principal, the
law requires that the power be used only
for the benefit of the impaired person.
Terms contained in powers of attorney vary
widely, but normally they do not permit the
agent to give away the principal's money or
use money for the agent's own benefit. Financial powers of attorney are commonly
used by family members to contract for
long term care, pay the elder's bills, and
apply for government benefits.
DRAWBACKS OF THE POWER OF
ATTORNEY
In elder care the power of attorney
has three serious drawbacks. First, it must
be signed when the impaired person still
has the intellectual capacity to understand
the document's terms and consequences.
Often, the elder has declined so far before
the problem is recognized that it is already
too late to get one signed. Second, no law
requires banks and other financial institutions to recognize the validity of the document. Banks, stock brokers and others in
the financial world often refuse to recognize a power of attorney unless it is on their
standard form or signed in their offices. If
this happens, the agent may not be able to

get access to the impaired persons money

in order to use it for health care. The third
drawback is that there is no oversight of the
agent. Elder financial abuse is a serious
problem. Law enforcement in Oregon has
thousands of cases in which powers of attorney have been used by unscrupulous relatives to misappropriate the life savings of
an elderly family member.

The Advanced Directive

An advanced
directive
combines the
old living
will with a
health care
power of
attorney.

An Oregon advanced directive is a

document that designates someone to make
health care decisions for you if you cannot
make them yourself. It also gives directions to health care providers regarding the
kind of end of life care you desire. The
form used in Oregon was designed by the
Oregon legislature and combines the old
"living will" with a "health care power of
attorney." A person can get a fill-in-theblank version of the Oregon advanced directive from a lawyer, from most hospitals,
and over the Internet. The form contains
detailed directions about how to fill it out
and have it witnessed.
The advanced directive does two things:
1. It names an agent to make health care
decisions in case a person cannot make
those decisions for him or herself.
2. It makes a person's wishes about end
of life known to health care providers.

A person can use the form to appoint an agent, give directions to health
care providers, or both. Many people nominate a loved one to make health care decisions in case they are incapacitated but do
not give directions to health care providers.
In this case all decisions are left to the
health care agent

Unlike a
financial power
of attorney, an
advanced
directive is
only effective
when the elder
cannot make
decisions on
his or her own.

Unlike a financial power of attorney, an advanced directive is only effective

when a person cannot make decisions on
his or her own. While a financial power of
attorney allows the agent to make financial
decisions as soon as the document is
signed, an advanced directive can only be
used if a person is incapable of making or
communicating medical decisions to health
care providers. If health care providers refuse to recognize the authority of the person named in the advanced directive, there
is a court procedure for enforcing its provisions.

TRUSTS
Some elders have estate plans that
include revocable trusts in addition to wills.
These estate planning trusts can be simple
or complex, but they often contain provisions about who will make decisions and
what is to be done in the case of incapacity.
The trust will set out who decides that the
elder is no longer financially competent,
how that decision is to be made, and how
the elder's property is to be used after incapacity.

A surrogate
decision maker
under a trust
may be able to
prevent an
impaired elder
from using
money or
property
foolishly.

The incapacity provisions of revocable trusts generally apply only to

management of the impaired person's
money. In that respect those trust provisions resemble the provisions found in a
power of attorney. Trust differ, however,
in two important respects. First, the provisions in a trust appointing a surrogate
decision maker come into effect only
when the creator of the trust is incapacitated. Second, once a surrogate decision
maker has been put into place, the replacement can prevent the impaired creator of the trust from using trust money
or property foolishly.
Trust provisions regarding incapacity can be simple or very detailed.
Some trusts go so far as to name the specific long term care center the elder prefers. Most trusts, however, do not
provide specific directions about end of
life care. Thus, a trust is a poor substitutes for a properly prepared advanced
directive.

Guardianships and
Conservatorships
Going to Court

A guardian
makes health
care and
placement
decisions for an
impaired elder.
A conservator
protects the
money and
property of the
elder.

A power of attorney and an advanced

directive are effective tools if an impaired
elder cannot make decisions. They are useless, however, when the impaired elder is
making dangerous or self-destructive decisions. If an elder is squandering money or
choosing to live in life threatening conditions due to cognitive impairment, family
members can seek help from the courts.
When presented with convincing evidence
that an impaired elder is losing his or her life
savings or failing to manage important
health needs the court may appoint someone
to take over.
The Oregon courts appoint two kinds
of surrogate decision makers: conservators
and guardians. A conservator takes care of
an impaired person's money. A guardian
makes health care and placement decisions
for the elder. Some elders will need a conservator but not a guardian. Some impaired
elders will need both. While the forms to
create a power of attorney or an advanced
directive are available from many sources,
family members seeking to have a guardian
or conservator appointed will need help from
a lawyer.

CONSERVATORHIPS

A person
seeking to be
appointed a
conservator
must be skilled
at handling
money and must
be able to post a
bond large
enough to
ensure that the
elders property
is protected.

When there is convincing evidence

that an impaired elder can no longer manage
money, a family member may apply to the
court to have a conservator appointed. The
court order appointing the conservator will
be written to address the specific financial
problems facing the elder. In some cases,
that will mean that the conservator will completely take control of the elder's money. In
other situations, the conservatorship may be
more limited, allowing the elder the dignity
of controlling some money but restricting
the elder's ability to transfer real estate or
access investment accounts. After being appointed, the conservator must collect, protect
and spend funds for the elder's benefit.
The person seeking to be appointed
conservator must prove to the court that he
or she has the skills to manage money. The
conservator must also post a bond sufficient
to guarantee that the elder's money remains
safe. In some cases the requirement of a
bond means that even well intentioned and
honest family members cannot qualify to be
a conservator. In these cases, the court will
appoint a professional conservator to do the
job.
A court order appointing a conservator denies an elder important rights that most
of us take for granted. Thus, the elder is entitled to see all the papers filed in court and
is given the opportunity to object. Copies of
the documents prepared by the lawyer must

also be given to the elder's closest relatives

so that they too can object. If the elder objects, he or she can hire an attorney and in
some cases the court will appoint an attorney. The elder has the right to make the relative who started the court proceeding prove
the case for appointment with clear and convincing evidence.

Once a year a
conservator
must report to
the court all the
income
received by the
elder and
account for all
the money
spent on the
elders behalf.

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If the court appoints a conservator,

the person appointed must once a year provide the court with a thorough accounting of
all money received by the elder and all
money spent. Most conservators keep an
attorney retained for as long as the conservatorship lasts. If the elder improves so that he
or she is once again able to manage money,
he or she may ask that the conservatorship
terminate. If the elder dies while under a
conservatorship, the money in the hands of
the conservator is distributed according to
the elder's estate plan.
GUARDIANSHIPS
The Oregon courts will appoint a
guardian when a cognitively impaired elder
is making life style choices that put him or
her in physical danger. Often a guardian is
appointed to place an impaired elder in a
long term care facility. The appointment of
a guardian is an even more severe infringement on personal rights than the appointment of a conservator. A conservator
controls only money. A guardian can agree
to medical procedures and determine where

the elder will live. Thus, the protections for

the elder in a guardianship proceeding are
even greater than in a conservatorship.

Before a
guardian can
be appointed a
judge must be
convinced that
the elder is so
cognitively
impaired that
he or she
cannot safely
manage the
basic
requirements of
daily living.

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To appoint a guardian, a court must

have convincing evidence that the elder's
ability to evaluate information is so impaired
that the elder cannot manage nutrition, personal hygiene and other basic health care
needs. The court must also find that without
the appointment of a guardian serious injury
or death is likely to result. Thus, the need
for a guardian is partially dependent upon
the situation in which the elder lives. The
court is much more likely to find a threat of
serious injury in the cases of an elder living
alone than in cases of an elder living among
family or in a long term care center. As in a
proceeding for a conservator, the elder has
the right to copies of the documents filed
with the court, has a right to object, and the
right to an attorney.
When a family member seeks the
appointment of a guardian, the court will
appoint what is called a "visitor," to talk to
the elder, his family and his care givers. The
visitor is the eyes and the ears of the court.
The visitor will interview the interested parties and report to the judge, giving his or her
opinion as to whether a guardianship is warranted and whether the person seeking to be
guardian is an appropriate surrogate decision
maker. The costs of the visitor are paid by
the person filing the guardianship papers.

If no one files an objection and the

court visitor reports that the the proposed
guardian in an appropriate choice, the court
may order a guardianship opened without a
court hearing. If the elder or other family
members object, there may have to be a
hearing in which evidence is presented by
both sides. If a guardian is appointed, the
guardian will be required to report once a
year to the court on the condition of the
elder.
Although
expensive and
often stressful,
court
proceedings to
protect an
impaired elder
are sometimes
unavoidable.

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CONCLUSION
Legal proceedings to have a surrogate decision maker appointed for an impaired elder should not be undertaken
lightly. The process is expensive and tends
to be highly stressful for everyone involved. On the other hand, when impaired
elders are wasting the money they need to
live on, or are making decisions that put
their lives in danger, family members may
have little choice. In these cases, quick
resort to the courts can protect a life savings or even a life.

SUMMARY
A financial power of attorney appoints another to
make financial decisions for you. It is in force the
moment it is signed, and ceases to be in force if you
revoke it or you die.
An advanced directive appoints someone to make
health care decisions if you cannot make them yourself and gives health care providers directions regarding end of life care. It is only used if you cannot
make decisions on your own.
A trust may contain provisions that determine who
shall be in charge of your money and property if
you become incapacitated. It may also contain directions about how your money is to be used.
A conservator is a person appointed by the court to
take charge of your money and property. A conservator will only be appointed if a judge is convinced
than you cannot manage your property on your own.
A guardian is a person appointed by the court to
make residential living arrangements and health
care decisions for you. A guardian will only be appointed if a judge is convinced that you are cognitively impaired and that without a surrogate
decision maker your life will be in danger.

Orrin R. Onken
21901 NE Halsey Suite 202
Fairview, Oregon 97024
503-661-2540
oronken@orolaw.com
www.orolaw.com

Elder Law, Estate Planning

and Probate
Member of the National Academy of Elder
Law Attorneys