The Oregon legislature is considering making changes to guardianship proceedings which would include uniform policies throughout the state with respect to court appointed visitors. The visitor occupies an important place in a guardianship proceeding. The visitor’s job is to interview and evaluate the respondent (i.e., the person who is alleged to be in need of a guardian) and then report back to the court with a recommendation whether or not to appoint a guardian. Judges frequently rely on the visitor’s recommendations in making that critical decision.
Senate Bill 503, currently under consideration by the legislature, would require mandatory training and certain minimum qualifications of anyone serving as a visitor in a protective proceeding in Oregon.
Civil liberties advocates would argue that the heightened requirements in SB 503 are needed to protect a respondent’s due process rights. Without such additional protections, the argument goes, a respondent is at risk of losing a substantial degree of personal autonomy by having a guardianship imposed when it isn’t necessary.
A number of experienced Oregon practitioners, however, question whether the increased safeguards and attendant costs are needed or even wise. Insofar as due process is concerned, the ultimate decision to appoint a guardian is made by the court, not by the visitor. Plus, both the respondent and other interested persons (friends, family members, physicians, etc.) have the opportunity to come to court and challenge the necessity for the guardianship.
Practitioners also worry that, given the lack of available visitors in a number of Oregon counties at present, the changes contemplated by SB 503 will result in a further decline in the number of available visitors. And, the expense in implementing the proposed changes may create a situation where those who have need of an appointed guardian for an incapacitated family member will be unable to afford the cost of a visitor and avoid the process entirely for that reason.
It will be interesting to see which of the competing viewpoints wins out this legislative session.
© 3/8/2017 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.