EPISODE 43 – Guardianship & Conservatorship: When Power of Attorney Isn’t Enough

Guardianship & Conservatorship: When Power of Attorney Isn’t Enough

When a loved one can no longer safely make decisions for themselves, families are often faced with difficult, emotional choices — and a lot of confusion about what to do next.

In this episode of the Team Senior Podcast, Jamie Callahan sits down with Scott Bucy, Southern Oregon attorney specializing in elder law, estate planning, trusts, guardianship, and conservatorship, to break down what these legal tools really mean — and when they become necessary.

Together, they explore:

• The difference between guardianship, conservatorship, and power of attorney
• When court involvement becomes unavoidable
• How guardianship impacts medical decisions, finances, and living arrangements
• Why facilities may require guardianship even when a POA exists
• The legal process, timelines, costs, and responsibilities
• Common emergency scenarios families face — especially with dementia
• How courts oversee and protect the rights of vulnerable adults
• How planning ahead can prevent crisis situations later

This conversation is especially important for families navigating dementia, memory care placement, safety concerns, or financial vulnerability, and for anyone who wants to understand how to protect their loved ones — and themselves — before an emergency arises.

Guest Information

Scott Bucy, Attorney at Law, 

Ashland Oregon Law
Specialties: Elder Law, Estate Planning, Trusts, Guardianship & Conservatorship
Serving Southern Oregon

At Team Senior™, our mission is to guide you and support you through the maze of Southern Oregon Long-Term Care.

📞 For Team Senior resources, call: 541-295-8230

Or visit our website for more information: https://www.teamsenior.org/

Transcript

Episode 43: Guardianship & Conservatorship - What You Need to Know

Host: Jamie Callahan
Guest: Scott Busey, Law Attorney

JAMIE CALLAHAN: Hi, this is Jamie Callahan with the Team Senior Podcast. Our goal is to simplify aging. Society grooms us to plan for retirement, but what about life beyond retirement, where the rubber meets the road? Perhaps you've had a stroke, or you've been diagnosed with cancer, or maybe you're forgetting things and now you have dementia. That's our area of expertise, and we are here to share our insight.

And now, the Team Senior Podcast.

Hi, this is Jamie, and we are in the studio today with Scott Bucy. Scott is a wealth of information that I cannot wait for him to tell you a little bit about himself.

SCOTT BUCY: Yeah. Hi, Jamie. Thanks for having me. First of all, I appreciate the work that you do in Southern Oregon. You're highly regarded, and you also are a wealth of information and a huge asset to our community, so I greatly appreciate that. I am an attorney in Southern Oregon. I specialize in estate planning, trust work, elder law. I dabble in a little bit of business here and there, but primarily that's what I do. I was up in Vail, Colorado for about 22 years prior to moving to Oregon. I've been in Oregon, oh gosh, going on nine years now. Hard to believe.

JAMIE: Wow.

SCOTT: So that's what I do for work. And I really enjoy helping people, and that's my focus.

JAMIE: And we are acutely familiar with what you do because we refer a lot of business to you.

SCOTT: Yes, you do. And I appreciate that very much.

JAMIE: So let's just start with the simplest piece of this, which is, let's just get to the root of what we're here to talk about, which is guardianship and conservatorship. What do those terms mean?

SCOTT: Yeah, absolutely. Guardianships and conservatorships are court actions. They're done through the court process. They're meant to take care of somebody's health, safety, wellbeing when the person is incapacitated and they can't care for themselves essentially. There's all different types of tools that we have that we try to put in place to ensure that people are cared for and safe, and a guardianship and a conservatorship—both those are just one of those specific tools amongst many.

JAMIE: Sure. So I always like to take an opportunity to explain how power of attorney is different from guardianship and conservatorship, and I often describe it by saying that power of attorney allows you to come alongside someone and make decisions with them, but it does not take away someone's authority to make decisions for themselves. How does this differ from that?

SCOTT: This differs—so don't, let's not get confused. Like powers of attorney, you're correct, it can—you walk alongside with somebody. It can be a voluntary thing. But guardianships, actually—and conservatorships can too. Sometimes people set those up prior, just planning. However, in most cases, a guardianship and conservatorship—those come up when somebody, they're incapacitated, they don't know it, and they need assistance. And oftentimes it's the family's kind of in panic mode. And then they will step in and file court actions and get in touch with an attorney to try and get it all set up.

JAMIE: Is that so? It does. When does guardianship and conservatorship become necessary?

SCOTT: It becomes necessary when the person—their safety, wellbeing, and maintenance and general care is not being met by their own actions, right? That's when it becomes necessary. Moving forward a little bit, the conservatorship is control over somebody's money. The guardianship is control over somebody's body and their physical space. So a conservatorship—we all know and love Britney Spears, right? We remember that whole thing when she was in the news all the time with her dad. Her dad had a conservatorship over her. Her dad did not have a guardianship, right? So her dad could not tell her she had to go back and live in Tupelo, Mississippi, but her dad could say, "This is how much money we're going to give you to live as a normal pop star in your situation can live right now." That was a little bit different than what we do with Team Senior in the sense that Britney was younger and we're often dealing with elder people, but it's the same. It's very similar. It's the same concept, same process, same court action.

JAMIE: That's correct. So when we're working together with conservatorship and guardianship, it's generally somebody that is an elder person.

SCOTT: Absolutely.

JAMIE: That, in my scenario specifically, it's when we're dealing with somebody that has a dementia diagnosis that does not already have power of attorney in place. They cannot sign themselves into memory care, but we need somebody that has the authority to do that, at which point we need a guardian or a conservator—we need the conservatorship in place. And alluding back to the power of attorney that we were talking about earlier, powers of attorney—we often put people that we know and love and trust to be our power of attorney. And what does that mean? Essentially, that means that person has access during a certain time to go and help you with your finances and manage your money. But what would happen if, for example, I had my daughter as my power of attorney, and then I lost capacity and I lost trust and faith with my daughter, and I decided to go to the bank and say, "Hey, I'm taking my daughter off of this power of attorney," and I pulled it off? The banker had no idea. Maybe I did have dementia. I was only there for a brief period, and I had it together, and the bank took them off. And then I go home and I'm spending money frivolously and not being responsible with my assets. But yet the bank—and my daughter goes into the bank and my daughter tries to help me and realizes that's happening, and the bank kind of shuts my daughter down. What do you do? You file for a conservatorship or guardianship at that point, typically?

SCOTT: Sure. Yeah. Yeah.

JAMIE: And so a bank is a really great point just here quickly. So we often tell people that while having a power of attorney is really important, it's virtually useless at the bank. You have to have your banking power of attorney. Your bank is going to require that you fill out the bank's documents to have a power of attorney there. However, if you have conservatorship, you have access to the bank accounts when it's necessary.

SCOTT: That's exactly right. So what do all banks have in common? What do they all have in common? They look after your money. But they all have towers of lawyers. Sure. That's what they have, right? And so they're towers of lawyers, but because of that, they all have different rules. Like one of them, for example, might require a specific document where the other would not. And powers of attorney come into play on that all the time. One of them might accept a power of attorney that's five years old, the other one might not. So it's important when we're looking at conservatorships and guardianships, the main focus needs to be to plan ahead, number one.

JAMIE: Sure.

SCOTT: And then consistently keep things up to date, consistently communicate with people. If you're communicating and you're keeping things up to date and you have those people that you know, love, and trust in those power positions, when things do come, it's not to say that you wouldn't need a conservatorship or a guardianship, because you quite possibly could, but at least you have those people in place.

JAMIE: Sure. You know who you want those people to be.

SCOTT: Absolutely.

JAMIE: The challenge we see sometimes is that the folks that we're working with—where we recognize, let's just say the husband has dementia and the wife needs to get guardianship or conservatorship in place, or an adult child—the husband isn't even aware of what's going on and may not even want to be moving into memory care, but has maybe become abusive, has gone missing several times, whatever that looks like. And when we have someone that is not agreeable to moving into memory care, a power of attorney at that point is essentially useless. If they say no, they don't want to go, we can't force their hand. No. It's only the guardianship or conservatorship that can do that.

SCOTT: And so even when people voluntarily go into a facility, it's not uncommon for those facilities to still require some kind of guardianship and conservatorship, especially if they've had a diagnosis—maybe some kind of dementia that's not quite to that point, but they know what the future's coming. The facility would want something like that to be in place, even if they did have a power of attorney and trust and things like that, as protection just for their own liability protections and to make sure that if things do start to deteriorate and perhaps that grandfather that you were just talking about starts leaving, trying to leave the facility and doesn't realize that's what he's doing, they would be able to stop them physically.

JAMIE: Absolutely. Yes. I want to get into how we—what is the legal process to get it in place? But quickly, I just want to share a story about a case that we worked on because it does really explain how these documents are so critically important. We had met with a son whose mother needed to move into memory care, and her Social Security check of, say, $1,800 a month was not enough for her to move into memory care. But we also knew that the son was buying the business—his dad's business—from his mom. His dad had passed away, and he was making small payments to her for the business in exchange for owning the business. Say the payments were $1,000 a month. And we asked him, "Why are you not just taking out a loan and putting this money in the bank so that mom can afford to move into memory care?" And he said, "It's because the grandson is living with mom, and the grandson spends every dollar that she has coming in." So he wasn't willing to take out a loan. So we had a family meeting mediated with the adult children and mom and explained that if they got guardianship or conservatorship in place, the son would be able to control the finances. It would allow him to get a loan, deposit all the money, and mom can move into memory care. That is what they ended up doing. But it was just a great example of how conservatorship and guardianship is really a protection.

SCOTT: Absolutely. And the key to what you just said is what? Communication. Like, communication. You have to have those pieces in place, but you have to communicate. Like this time of year—it's December, holiday season here currently as we're filming this, or videoing this, sorry. But this is often a really busy time because what happens is people have gone out of town and then they come—they haven't seen grandma since last Christmas, and then they come into town and then grandma has held it together on the phone. But then the new year hits and the phones blow up. And that's usually what happens, right? Those types of things. And those emergency urgent situations can really be avoided if there's just a clear communication base as people age, as loved ones age. Really try to just reach out and call and check, and maybe fly in a couple more times than you normally would. Really keep an eye on your aging family.

JAMIE: That's so true. Yeah. Really keep an eye on your aging family.

SCOTT: Absolutely. Absolutely. Absolutely.

JAMIE: So let's talk about the process.

SCOTT: Absolutely. Yep. Yep. So the process for it is that you need to get an attorney typically. And people outside that aren't attorneys could do this, but it is complicated. It's one of the big misconceptions of this—is that it's quick and easy, and it's just not. It is a court process. You file a petition in court. You have to remember, what are you asking to do when you file that petition? You are asking to take somebody's rights away. Huge rights. We're not talking about taking their driver's license away. We're talking about saying, "This is where you can live. This is where you have to live. This is how you can spend your money, and you can't spend it any other way. This is how you can invest your money." So these are major things. These are big constitutional rights.

JAMIE: Right.

SCOTT: So the court just doesn't rubber-stamp these things. They pay close attention to this, and they're going to look at the facts closely. So you file that initial petition. Depending upon if it's an emergency situation or not, that gives a timeframe of when the court will look at it. If it is an emergency situation, typically the court can get to it—if it's indeed an emergency—within 24, 48 hours. They'll get on something like this and put a temporary order in for a temporary guardianship that eventually would get transferred to permanent. If it's not an emergency situation, it could take a couple of weeks. So you file that petition. The judge would appoint a temporary guardian just in that circumstance. Notices have to go out to people. So the person, the protected person, they're called, would need to receive a notice. The family, immediate family, anybody that lives with the person would also have to get notice. So children, maybe roommates, girlfriends, boyfriends, whoever lives with them at that facility would have to get notice. Anybody has a right to come and push against that, including the protected person. The court then, by statute, has to appoint what's called a court visitor. That court visitor is a government employee. The court kind of has a Rolodex of these people, and they have a bunch of different letters after their name, right? And they specialize in this type of thing. And they go and visit with this person and determine—they're a third-party independent person. They're not the family that's filing the petition, and they're not the protected person that's against it. And they're not the court. They're just this independent person that's educated on this particular area of law. And they go and interview this person. It might take 30 minutes, but I've also had these things come in and it takes days. Sometimes they've interviewed up to 20 people, quite honestly. Once the court visitor has completed that, they file a visitor's report with the court. A hearing is set—sometimes it's not, but it can be set—and then you would go to court and petition the court, or plead your case to the court as far as why you would want this. Doctor's letters are often involved. If there's a primary care physician that has indicated that, indeed, in their professional medical opinion, this person does indeed need a conservator and guardian, that type of evidence would be provided to the court. And then the court would grant what's called letters of guardianship and letters of conservatorship. And then that would be the document that the guardian and conservator would need to take to the healthcare facilities, to the banks, along obviously with proper identification. And then those facilities would be able to assist them to help that person. The other thing that needs to be known is that the courts supervise this throughout the year. So every year, that person—the person being like the conservator and guardian—they have to file reports and detailed reports.

JAMIE: They want—it is a responsibility, and I think folks really need to know that. Yeah, the courts are really detailed with the information that they want.

SCOTT: Absolutely. Every bank statement, every penny coming in, every penny going out. The guardian and conservator has what's called a fiduciary duty. And that duty, if you can just in a capsule, if you were to put it in a capsule, it basically means that whatever you do better be for the protected person's benefit. There is zero tolerance for any kind of self-serving or outside service. So that person has to look out for the best interest of the person that's in need. And if they don't, then there can be different consequences on that, depending upon what the person can do—anything from just a penalty to maybe a judicial reprimand, but also potential criminal consequences if they're embezzling money or something crazy like that, which—

JAMIE: Sure. Absolutely.

SCOTT: Which does happen in certain circumstances, unfortunately.

JAMIE: Scott, how does someone recognize—I think it's pretty easy to recognize if they need this—but how does someone start the process? They would reach out to an attorney. What is the cost usually?

SCOTT: It varies. It's going to be—again, it depends upon the facts. Is anybody pushing against this? If nobody's pushing against it and it's nice and clean, it's going to be probably $2,500, $3,500 bucks. And that would include attorney time and court fees and things like that. But if the court's having to—or excuse me, the attorney is having to go into court and argue the case and plead the case, then that can take time. Like I said earlier, with regard to the court visitor, sometimes those things are a 30-minute interview, and sometimes there are 20 phone calls. It really is dependent upon what the amount of work is needed to get it done.

JAMIE: Understood. I've been a part of several of these, and so I am aware of how much work is involved with getting something like this approved. And rightfully, nobody's rights should be taken away from them. Sure. If it isn't truly warranted. Sure. So the conservatorship and the guardianship manages things like medical care, finances, living arrangements. When we talk about medical care, let's talk about the guardianship as it relates to the advance directive.

SCOTT: Yeah, so the guardianship typically—the guardianship is going to trump the advance directive, right? It's going to have more power than the advance directive. Oftentimes when judges are writing the judgment that goes through and the guardianship, it's going to say that any and all advance healthcare directives written before this or signed before this are void. Oregon—just for clarity for the audience here—Oregon doesn't necessarily have a specific power of attorney for medical decisions. Okay. A lot of states do. California does. We're close to California, a stone's throw away. California has a power of attorney for financial and a power of attorney for medical decisions. Oregon has typically a power of attorney for financial, but then the advance healthcare directive, which is essentially like a power of attorney. Sure. And so that document is where the initial person is completing that document and says, "This is who I want to be in charge if indeed I can't speak for myself and I don't have the power to make medical decisions." But it's very specific, and it's a very specific document that's meant for very specific circumstances. The guardian is much more broad. They're going to have much more flexibility and power to be able to make medical decisions based upon the best interest of the protected person than they would, for example, for what's just like an advance healthcare directive.

JAMIE: Understood. And I think that really speaks to why it's so important to identify the right parties to be in the role of the conservator and guardian. Who do you generally recommend?

SCOTT: First preference for me is always family and loved ones that you know, love, and trust. Not everybody has that. You have to remember as well, like there's essentially two baseball caps here, if you will. Like one of those hats is the conservator hat, and the other hat is the guardian hat.

JAMIE: But it can be the same person.

SCOTT: Right? It can absolutely be the same person, and most times it is the same person. And I would recommend it being the same person. Why would I recommend it being the same person? Because you want one remote control. You want one person to have the remote control. You don't want one person to say, "Hey, mom needs to go live in the van down by the river, and that's where we're going to put her," and the person with the money says, "Nah, that's not—I'm not paying for that. We're going to go somewhere else." You want those people to be able to communicate if you are going to have two people to do those different things. Then 100% you want to make sure that they can communicate and they get along and there's not any adversity with each other on that. Oftentimes people that do put two different people in those specific situations, it's because one of the children lives here, perhaps the guardian, and they have a real close physical connection with mom or dad, where the person that is in charge of the money, maybe they live in New York City or something, but they're an accountant. They're a CPA, and so they really understand money. And so that's when you would separate that into two different things. But more times than not, it's usually one person. But they also need to realize that they have one hat on or two separate hats on potentially.

JAMIE: That adds a lot of excellent clarity.

SCOTT: Yep.

JAMIE: Are there any penalties or risks for guardians and conservators who don't follow the proper procedures?

SCOTT: 100%. Yeah. There's 100% risks. Again, you have to keep in mind that you have to look out for the best interest of the protected person. There's no self-serving. The court is going to be overseeing everything. If the court thinks that there's something fishy going on, the court could demand a hearing during one of those annual reviews and reports that you're having to turn in. And then potentially the judge could have consequences on that—everything from a civil penalty to a potential criminal prosecution.

JAMIE: Yeah. I know we touched on it earlier, but I wanted to circle back on that point just because I don't want folks to think that this is an easy job.

SCOTT: It's a job. No, it's not to be taken lightly. No, it's not to be taken lightly at all. It's a very important job. And oftentimes people either think that it's—you see both sides. There's not a whole lot in the middle. They either think it's going to be really easy, or they are too scared because they think it's going to be really hard. And so the important thing is to educate yourself on exactly what you can and can't do. There's classes that you have to take. You know that when you get appointed, you have to pass these classes and it talks about it. You would also want to consult with your attorney if you had any other questions that weren't covered in the class or maybe you're a little fuzzy on something. There's all kinds of resources out there that you would want to make sure. But if you can just keep it in the envelope of: Is this in the best interest of this person and no one else? And make that decision as a reasonable person would.

JAMIE: Sure. Yeah, that makes good sense. So for someone that's listening who suspects their loved one might need guardianship or conservatorship, what's the very next step they should take?

SCOTT: The next step they should take would be to make sure, if they can, that the person is indeed safe and maintained and cared for right now. The step after that would be to get in touch with an elder law or a specialist attorney that specializes in that and get court action in order to help them. A judge is going to be the one that has to sign off on some of this. There's a certain amount of planning that you can do with trust and powers of attorney and advance healthcare directives and things like that. But sometimes those aren't good enough. And so when that's the case, you must get a court involved. That's where you have to go there.

JAMIE: Yeah, that's very true. That's very true. So I'll leave this with: there are several elder law attorneys in Southern Oregon that we refer to all the time.

SCOTT: Absolutely.

JAMIE: Scott, we work with on a very regular basis for a lot of different things. And my best advice would be that if you are facing the necessity to consider guardianship or conservatorship, please just reach out to us. We can help to guide you to appropriate avenues depending on the city or the county that you live in and just get you connected with somebody who can definitely help you with that. Scott, thank you so much for being here today.

SCOTT: It was a pleasure. Thank you. Thank you very much.

JAMIE: Thank you for listening to the Team Senior Podcast. We're here every week sharing new and relevant information. Remember that we're just a phone call away. Team Senior can be reached at 541-295-8230. Again, 541-295-8230. Until next time, this is Jamie Callahan.

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