In Oregon there are potentially six kinds of protective proceedings.
This article will outline the three kinds of conservatorships that are available. An earlier article addressed the three kinds of conservatorships that are available.
Legal fees and court costs for a conservatorship are usually paid from the assets of the financially incapable person, rather than being the responsibility of the person seeking the conservatorship, at least if the court agrees, and a conservatorship is established.
If a person is financially incapable, and is unable to manage his or her assets or income (or is being cheated out of these assets), someone can seek a conservatorship over that person.
The formal language from the statute is from ORS 125.005 (3), and reads:
“ “Financially incapable” means a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. “Manage financial resources” means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.”
Conservatorships allow a person who is appointed by the court (called a Conservator), to manage the assets and income of the protected person/financially incapable person. A person who is subject to a conservatorship generally cannot enter into contracts, or manage their own money, although often a person who is subject to a conservatorship will have some small monthly or weekly amount of pocket money made available to them by the Conservator.
Conservators also often revoke powers of attorney that were granted before the financially incapable person needed assistance handling their financial affairs, particularly if the power of attorney might be abused by some third person.
Conservators generally also need to post a bond in court. The bond is obtained from a bonding agency (like an insurance agency). The cost of the bond is often only a few hundred dollars per year, and is generally paid for from the assets or income of the protected person.
The bond is usually equal to all available assets of the protected person, plus one year of income for the protected person. The amount of the bond can be reduced if available assets are restricted.
As an example, there might be restrictions placed on the sale of a piece of real estate, and these restrictions might be recorded in the deed records. This would reduce the amount of the bond. The property could still be sold, but a court order allowing the sale would then be needed.
There are three kinds of conservatorships.
In an emergency, one can seek what is called a “Temporary Conservatorship.” These temporary conservatorships can sometimes be obtained on an expedited basis. Often, they can be obtained within a few days of contacting a skilled attorney.
A temporary conservatorship will last only 30 days, and can be extended, if the court agrees, for only another 30 days. ORS 125.600.
The second kind of conservatorship is a “Standard Conservatorship.” It takes longer to obtain a standard conservatorship. Often, if there is an emergency, a person will seek appointment as a temporary conservator on an emergency basis, and will begin the process of seeking a standard (i.e. continuing) conservatorship at the same time.
A standard conservatorship extends for as long as the protected person needs to have someone else make financial decisions for him or her, and or as long as the protected person needs someone else to manage his or her assets and/or income. A conservator must make annual accountings to the court, however.
A conservator must also seek court approval and/or give notice to the court before making certain kinds of decisions, selling a person’s last private residence, or the like. These matters are complex, and could be the subject of a full article.
The third kind of conservatorship is a “Limited Conservatorship” under ORS 125.650. These limited conservatorships are usually requested when there is some specific, limited, and usually short term need that must be addressed. As an example, a limited conservatorship is often needed if it is necessary to transfer the interest of one spouse to another spouse, so that a house or car can be sold, for example. The limited conservatorships are usually designed to expire in a short time, after a specifically outlined set of goals has been achieved.
Steven A. Heinrich
Divorce & Custody
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