Joseph Fichter

Is Mom Incapacitated?

Karen’s Mom is 84 years old. She has lived by herself for the last 13 years, ever since Karen’s Dad died. Extremely independent and on top of all her commitments, she has been the rock, both within her family as well as within the wider community.

Lately, though, some things have happened that concern Karen. Mom is not eating regularly. Her bills are piling up unopened. She is often not refilling her prescriptions, or if she does remember she forgets to pick them up. She also appears to be forgetting names and faces. Karen and her siblings are worried. Could it be that Mom is losing the ability to care for herself?  If so, is she a candidate for the appointment of a guardian or conservator?

A guardian may be appointed for Mom by the court to take care of all of her non-monetary decisions. A conservator would deal with Mom’s financial dealings. Often, the roles of guardian and conservator are combined in one person. Here that could be Karen, one of her siblings, a friend or a professional fiduciary. This person acts on authority from the court and is accountable to the court.

The Oregon legislature and courts are extremely concerned about Mom’s rights.  Before the court will appoint a conservator or guardian for her, it must be shown that Mom is incapacitated. There are two aspects to this under Oregon law.

One, to appoint a conservator, there must be a showing that Mom is financially incapable.

This is defined by statute but basically means that Mom for whatever reason is not able to manage her own financial affairs.

Two, a guardian may be appointed if it is shown that Mom is incapacitated.  To be incapacitated means that Mom is not able to take care of her own health and safety needs.

Oregon law presumes that a person in Mom’s circumstance is competent.  If Karen and her siblings decide it is in Mom’s interest to have a conservator/guardian appointed they will have to prove that Mom is financially incapable and/or incapacitated by clear and convincing evidence. When a party must prove a claim by clear and convincing evidence, that party must present evidence that makes the court believe the truth of the claim is highly probable.

While it can seem frustrating that these standards of proof are relatively high, we need only consider how we ourselves would want to be treated in regard to a protective proceeding. It is not an insurmountable standard, but it ensures that the person truly is in need of assistance.

There are many considerations for a person in Karen’s position.  Does Mom need help? If so, does she need a guardian/conservator? Is there a less formal way to proceed? I can help you approach these circumstances with sensitivity and care. Please contact me if you have any questions.

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