34 Trial Lawyer • Winter 2023 Capacity Continued from p 33 or conservator will likely be necessary. The court may appoint a guardian ad litem or conservator if the court determines by clear and convincing evidence that the respondent is a minor or financially incapable adult and that the person has money or property that requires management or protection. ORS 125. 400. “Financially incapable” is defined as a condition in which a person is unable to manage their financial resources effectively for reasons including, but not limited to, mental illness, developmental delay, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, and detention by a foreign power or disappearance. ORS 125.005(3). “Manage financial resources” means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits, and income.” Id. The proces s for appoint ing a conservator is generally more involved and expensive than a guardian ad litem. If your client is not ready to take on the process to appoint a conservator, you can proceed with a guardian ad litem and appoint a conservator once the matter is resolved. Please know, with small exception, only a conservator can enter into settlement on behalf of an incapacitated or financially incapable individual. See ORS 125.445(27); ORS 126.725; ORCP 27(I); See also Multnomah County SLR 9.055(3); Clackamas County SLR 9.041(1). If you feel you have a strong case or that it will settle prior to filing a complaint, it may make sense to bypass the guardian ad litem appointment altogether. InDaisy’s situation, she had a personal injury claim against her nursing home. Although she had capacity to do her estate planning, her cognitive decline was too advanced to meaningfully participate in the underlying claim. Litigation counsel decided it would be necessary to have a fiduciary appointed. We filed a motion for appointment of a guardian ad litem simultaneously with the complaint in the civil matter. After approximately a year, a settlement was reached. Our office prepared a pet i t ion for appointment of the conservator and approval of settlement in the probate court. We also included a request that the court establish and fund the settlement into a probate avoidance trust for Daisy’s benefit, which named her son as co-trustee. We terminated the conservatorship post distribution as funds could be managed by the trustee, as this was a less restrictive alternative. ORS 125.440(2); ORS 125.055(h)(i) (A). Recognizing signs With neurodegenerative diseases on the rise, it is more important than ever to recognize signs of diminished capacity in your clients. Up to 5 million seniors are abused every year, with an estimated loss of $36.5 billion annually. Get the Facts on Elder Abuse, National Council on Aging, https://www.ncoa.org/article/ get-the-facts-on-elder-abuse. That is one in 10 people over age 60. Id. This is a vulnerable population that needs advocacy. Although capacity issues can complicate representation, with basic tools and proper support, these waters can be navigated with some ease. If you would like to discuss capacity in more detail, please do reach out. Shannon Conley specializes in injury settlement planning, special needs law, conservatorships and guardianships, wrongful death and other probate matters, estate planning and elder law. Conley contributes to OTLA Guardians at the Sustaining Member level. She is a comanaging partner at Nay and Friedenberg LLC, 6500 South Macadam Ave., Ste. 300, Portland, OR 97239. She can be reached at shannon@naylaw.com or 503245-0894.
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