Guardianships and Conservatorships in Oregon Part 2

The PDF in which this article appears can be dowloaded here: Bifocal Vol. 42 Issue 6.

In the second piece of this two part article, Judge Lauren Holland discusses guardianship and conservatorship reform in Oregon and the development and implementation of Oregon WINGS (Working Interdisciplinary Network of Guardianship Stakeholders). Read part one. 

Oregon Working Interdisciplinary Network of Guardianship Stakeholders (Oregon WINGS)

How do we ensure that guardianships are granted only when necessary? How do we ensure that guardianships are not granted when there are less restrictive alternatives or merely for the convenience of others?

In 2007, the Oregon Supreme Court convened a Task Force on Protective Proceedings. Our objectives were to study existing practices, make recommendations for best practices in such areas as court visitors, due process safeguards and fiduciary qualifications.  We were also tasked with exploring beyond our current framework and systems to plan for the future of protective proceedings.

After a year of meeting, we submitted our report to the Chief Justice, making recommendations, one of which was to create a standing protective proceeding advisory committee to provide ongoing strategic leadership in the area of guardianships and conservatorships.  The report recommended that members of the existing task force be joined by other stakeholders, including social services, advocates, fiduciaries, and others for this committee.  We were on the road to what ultimately became Oregon WINGS.

As you already know, guardianships and conservatorships are unlike other areas of law where judges adjudicate disputes between opposing parties who can advocate for themselves.  Whether self-represented or represented by counsel, each party is able to be heard, articulate their position, and present evidence to substantiate their position. In contrast, petitions for guardianships and conservatorships are all about one person – the Respondent – and the petitioner is alleging that the Respondent cannot advocate for themself, does not have the capacity to care for themself much less present evidence and articulate their position.  In Oregon, as in other jurisdictions, judges are charged with responsibilities not only of determining whether petitioner has met their burden of proof to establish a guardianship or conservatorship, but also providing continuing oversight and monitoring of any fiduciary appointed.

Although we are still working on implementing some of the recommendations of that Task Force, we successfully applied for and received a small grant in January, 2013, to create a WINGS Council and institute a collaborative approach to guardianship reforms, community-based and person-centered care services, and support systems. The funding came from the ABA Commission on Law and Aging pursuant to a grant the Commission received from the State Justice Institute.

There were ten group partners and stakeholders who participated in this grant, including the Oregon Judicial Department, the Oregon Department of Human Services, the State Unit on Aging, Disability Rights Oregon, the Office of Abuse Prevention and Investigations, the Oregon Council on Developmental Disabilities, the State Long-Term Care Ombudsman, Oregon Alzheimer’s Association, ARC of Oregon, the Guardianship & Conservatorship Association of Oregon and members of the Oregon State Bar.  By the time the final report was submitted in April, 2014, WINGS had expanded to include 21 members.  The agencies, organizations and individuals involved were important partners.  All had a seat at the table and all were willing to engage.  Many were excited to have a voice and be heard regarding issues they were seeing and which they thought no one outside their organization was acknowledging, recognizing or addressing.

While the Chief Justice of the Oregon Supreme Court signed the WINGS grant application, the Oregon Department of Human Services, through its State Unit on Aging would initially administer the grant. Fred Steele, our current Oregon Long-Term Care Ombudsman, was the point person and initial Chair. Judge Catherine Tennyson and I became Co-Chairs in 2015 until her retirement in 2019.

Oregon WINGS Council and Committees

Our full WINGS council meets quarterly, currently on-line. The Oregon Judicial Department has provided space for our meetings pre-COVID19, and will continue to do so when we return to in-person meetings. The Judicial Department also provides support staff to coordinate and assist with WINGS website and logistics. Having assistance and support from the Judicial Department has made a significant difference in our stability and in raising awareness of our presence.

We have a number of engaged committees leading various projects: public service outreach; a “train the trainer” presentation; the WINGS website; and one updating the published informational literature. These committees meet as needed outside the quarterly meetings.

We also have a steering committee which meets monthly, raises and discusses issues, and sets the agenda for the quarterly WINGS meetings. Oregon is one of several states invited by the National Center for State Courts to participate in a multistate pilot project for the proposed national Guardianship Court Improvement Program. We look forward to participating in this pilot project and assess our guardianship/conservatorship structure and improve practice. Two areas of focus are 1) monitoring fiduciaries appointed in protective proceedings – for persons under guardianships and for detailed audits in conservatorships, and, 2) the collection of relevant data and its maintenance. We need to have current and accurate information.  We need to know who we serve and who we are under-serving.  We need to have accurate and complete information of the assets under the jurisdiction of the court. This information will help us better serve all Oregonians.

The 2021 Oregon Legislature has a bill under consideration to establish a Task Force on Guardianship/Conservatorship reform. The task force would include members of each branch of government as well as other public and private stakeholders to pursue an organized and systematic review of the law.

WINGS input into these programs is vital. WINGS is the only statewide group to bring together stakeholders from a variety of disciplines with knowledge and experience in the guardianship and conservatorship system. The Oregon WINGS mission is to implement a collaborative approach toward problem solving that strengthens guardianship practice. By combining the efforts of all stakeholders, we can improve judicial processes, better protect individual rights, and promote fiduciary standards and guardian accountability.

Oregon WINGS Resources Benefiting Vulnerable Consumers

Since its inception, Oregon WINGS has been engaged in a number of projects for the benefit of vulnerable Oregonians. WINGS has published a brochure for medical care providers containing important basic information on guardianships. WINGS also published a  Guide on Fiduciary Decision-Making Options which is in its third iteration of  the subject in review to ensure it contains accurate and current information. WINGS also developed a Get A Life Plan guide and checklist, located on our website, to assist members of the public to create individual plans for future medical and financial decisions.

The Guide on Fiduciary Decision Making Options has been used extensively by the developmental and intellectual disabilities community. The information is particularly helpful to educate parents with teenagers about to turn 18, when all too often, guardianship may be seen as the only option. This Guide provides valuable information not only to parents but also to educators about less restrictive alternatives to guardianship.

With the assistance of a second grant in 2017 from the ABA Commission on Law and Aging under an initiative funded by the Administration for Community Living,  WINGS engaged in a statewide mapping project to identify the resources that were available and the gaps that needed to be filled to preclude the need for and provide alternatives to guardianships.  Utilizing a variety of methods including a statewide survey of stakeholders, in-person forums, and individual interviews, WINGS sought out and learned from a wide variety of disciplines and individuals affected by guardianships about their experiences around the state. The project culminated in a WINGS symposium where the information was presented, discussed and recommendations were made.

The Work Continues

An encouraging response occurred about six months later, when several counties in central Oregon held a multidisciplinary workshop spearheaded by one of their trial court administrators who participated in the WINGS symposium.  This workshop was a collaboration among the courts, the hospitals, social services, public and private agencies and individuals to address similar issues as in the WINGS project – how best to serve vulnerable people in their communities. They modeled it after the WINGS mapping project, seeking to address these critical issues in a collaborative and cooperative way.

The relationships developed through WINGS has impacted the guardianship system and people impacted by that system in a positive way. Each WINGS member comes to the table with unique knowledge and experience with vulnerable Oregonians. We have gained a broader recognition and appreciation of the many moving parts in these kinds of proceedings and the effect on vulnerable members of our communities and their families.  Through WINGS we are breaking down the silos of our individual, agency and organization perspectives and focusing on how we can all better serve persons having to navigate these proceedings.

The priorities and challenges of WINGS overlap. We need to encourage and maintain stakeholder engagement and participation. We must ensure that we are serving all of our communities equitably.  Identifying communities that we are under-serving or not serving in a way that is of assistance to that community is both a priority and a challenge. We recognize and acknowledge that the system excludes people and is unjust to far too many. We are responsible for identifying, addressing and changing the system to ensure that all people are served well.

The work being done by the courts, advocates and other stakeholders is crucial to all Oregonians. How we treat people in need of assistance is a reflection on our values, our society, and on us as individuals. We have an impact on our communities.  We have an important voice. We also need to make sure that we listen. All persons deserve to be heard and respected.  We have a lot of work to do.