The following discussion is based on a case which occurred in a county to the north.

An 86-year-old woman lived alone in her own home, as she had for many years. She cared for her collection of pets (many cats and a dog), handled her own finances with minimal assistance, did most of her own shopping and food preparation and kept a neat house—albeit a foul-smelling one, owing apparently to the cats. She used a walker to move about and took a taxi when she needed to go to the grocery store or the bank. She had some memory lapses but for the most part was able to manage her own affairs.

The woman was under a doctor’s instructions to take what she referred to as “water pills” for edema. But because she found that they made her go frequently to the bathroom, a troublesome task given her limited mobility, she chose not to take them.

Over the years, she had occasionally told people that she was so attached to her house and pets that rather than move away, she would rather die.

The woman’s son filed papers with the circuit court, seeking guardianship of his mother. The mother objected to the guardianship. She filed a form with the court, objecting to her son being appointed her guardian. She stated that she did not want him deciding “where I live, who are my friends, who I see, what I do or anything else...”

The circuit court nevertheless appointed the son as his mother’s permanent guardian. The mother engaged Legal Aid to file an appeal on her behalf. The court of appeals reviewed the case in full. In its discussion of the case, the court of appeals emphasized that in order to impose a guardianship on an individual, it must not only be shown that she is engaging in life or health threatening behavior, but that the behavior is caused by a mental impairment rather than the behavior being a conscious choice.

The court also commented that, “like the smell of cigar smoke, boiled cabbage, or cheap cologne, the olfactory evidence of cats reflects a deliberate choice and not a health or safety hazard.”

The court referred to previous rulings in this area of law, stating that imposing a guardianship deprives a person of “precious individual rights,” and a person over whom a guardianship is sought enjoys a “presumption of competency...until the contrary is shown.”

The court of appeals concluded by reversing the lower court and directing that an order be entered, terminating the guardianship.

Bruce Coalwell has been an attorney in Roseburg since 1981 and is a shareholder in the Roseburg law firm of Dole Coalwell.

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(1) comment

Mogie
Mogie

Tough question - when do kids become the caregivers? Is it safe for someone to live alone when they cant make it to the bathroom and their clothes are stained from lots of "accidents"? Or when animal waste ground in the carpet?

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