Protective Proceedings

ORS 125.315
General powers and duties of guardian

(1)

A guardian has the following powers and duties:

(a)

Except to the extent of any limitation under the order of appointment, the guardian has custody of the protected person and may establish the protected person’s place of abode within or without this state.

(b)

The guardian shall provide for the care, comfort and maintenance of the protected person and, whenever appropriate, shall arrange for training and education of the protected person. Without regard to custodial rights of the protected person, the guardian shall take reasonable care of the person’s clothing, furniture and other personal effects unless a conservator has been appointed for the protected person.

(c)

Subject to the provisions of ORS 127.505 (Definitions for ORS 127) to 127.660 (Short title) and subsection (3) of this section, the guardian may consent, refuse consent or withhold or withdraw consent to health care, as defined in ORS 127.505 (Definitions for ORS 127), for the protected person. A guardian is not liable solely by reason of consent under this paragraph for any injury to the protected person resulting from the negligence or acts of third persons.

(d)

The guardian may:

(A)

Make advance funeral and burial arrangements;

(B)

Subject to the provisions of ORS 97.130 (Right to control disposition of remains), control the disposition of the remains of the protected person; and

(C)

Subject to the provisions of ORS 97.965 (Persons authorized to make anatomical gift of body or body part of decedent), make an anatomical gift of all or any part of the body of the protected person.

(e)

The guardian of a minor has the powers and responsibilities of a parent who has legal custody of a child, except that the guardian has no obligation to support the minor beyond the support that can be provided from the estate of the minor, and the guardian is not liable for the torts of the minor. The guardian may consent to the marriage or adoption of a protected person who is a minor.

(f)

Subject to the provisions of ORS 125.320 (Limitations on guardian) (2), the guardian may receive money and personal property deliverable to the protected person and apply the money and property for support, care and education of the protected person. The guardian shall exercise care to conserve any excess for the protected person’s needs.

(g)

The guardian shall promote the self-determination of the protected person and, to the extent practicable, encourage the protected person to participate in decisions, act on the protected person’s own behalf and develop or regain the capacity to manage the protected person’s personal affairs. To accomplish the duties under this paragraph, the guardian shall:

(A)

Become or remain personally acquainted with the protected person and maintain sufficient contact with the protected person, including through regular visitation, to know the protected person’s abilities, limitations, needs, opportunities and physical and mental health;

(B)

To the extent practicable, identify the values and preferences of the protected person and involve the protected person in decisions affecting the protected person, including decisions about the protected person’s care, dwelling, activities or social interactions; and

(C)

Make reasonable efforts to identify and facilitate supportive relationships and services for the protected person.

(h)

In making decisions for the protected person, the guardian shall make the decisions the guardian reasonably believes the protected person would make if the protected person were able, unless doing so would unreasonably harm or endanger the welfare or personal or financial interests of the protected person. To determine the decision the protected person would make if able, the guardian shall consider the protected person’s previous or current instructions, preferences, opinions, values and actions, to the extent actually known or reasonably ascertainable by the guardian.

(i)

If the guardian cannot make a decision under paragraph (h) of this subsection because the guardian does not know and cannot reasonably determine the decision the protected person would make if able, or the guardian reasonably believes the decision the protected person would make would unreasonably harm or endanger the welfare or personal or financial interests of the protected person, the guardian shall act in accordance with the best interest of the protected person. In determining the best interest of the protected person, the guardian shall consider:

(A)

Information received from professionals and persons that demonstrate sufficient interest in the welfare of the protected person;

(B)

Other information the guardian believes the protected person would consider if the protected person were able; and

(C)

Other factors a reasonable person in the circumstances of the protected person would consider, including consequences for others.

(2)

If a conservator has been appointed for the protected person, the guardian may file a motion with the court seeking an order of the court on the duties of the conservator relating to payment of support for the protected person.

(3)

A guardian may consent to the withholding or withdrawing of artificially administered nutrition and hydration for a protected person only under the circumstances described in ORS 127.580 (Presumption of consent to artificially administered nutrition and hydration) (1)(a), (b), (d), (e) or (f) and, if the protected person has a medical condition specified in ORS 127.580 (Presumption of consent to artificially administered nutrition and hydration) (1)(b), (d), (e) or (f), the condition has been medically confirmed. [1995 c.664 §30; 1997 c.472 §12; 2007 c.230 §1; 2007 c.681 §27; 2019 c.198 §5]

Notes of Decisions

Under former similar statute (ORS 126.137)

Change of adult ward’s domicile by guardian in Oregon must be accomplished directly by court order or under court order that expressly authorizes guardian to change domicile. Little v. Dept. of Rev., 11 OTR 219 (1989)

In general

Statutory provision that guardian has no obligation to support minor beyond resources of minor’s estate does not make agreement to provide support illegal or contrary to public policy. Compton v. Compton, 187 Or App 142, 66 P3d 572 (2003)

ATTY. GEN. OPINIONS

Under former similar statute (ORS 126.080)

Authority of Children’s Services Division to use social security, veterans’ and other benefits to defray care costs of guardianship children, (1981) Vol 42, p 146

Under former similar statute (ORS 126.137)

Corporation as guardian of incapacitated person, (1980) Vol 40, p 405

Source

Last accessed
Mar. 11, 2023

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