Chapter 227 Oregon Laws 2003

AN ACT

SB 32

Relating to protective proceedings; creating new provisions; amending ORS 125.055, 125.080, 125.150 and 125.155 and sections 9, 10 and 16, chapter 775, Oregon Laws 1999; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 9, chapter 775, Oregon Laws 1999, is amended to read:

Sec. 9. (1) Not more than once each calendar year, [a participating] the court [shall] may charge a respondent or protected person for any visitor services provided during the year. The court [shall] may order reimbursement to the state from the assets of the respondent or protected person for the cost of any interview or report unless the court finds that the assessment would impose a hardship on the respondent or protected person. If the respondent or protected person is receiving public assistance, there is a rebuttable presumption that charging a respondent or protected person for the services of a visitor would impose a hardship.

(2) The presiding judge [for the participating court] by court order shall establish fees for visitors conducting interviews and preparing reports.

(3) All amounts collected [by the participating court] under this section in reimbursement for visitor services shall be forwarded to the State Court Administrator and are continuously appropriated to the State Court Administrator. Funds appropriated to the State Court Administrator under this section may be used by the State Court Administrator [only] for the purpose of funding visitor services provided under [sections 5 to 13 of this 1999 Act] ORS 125.150 and 125.155.

SECTION 2. Section 10, chapter 775, Oregon Laws 1999, is amended to read:

Sec. 10. (1) A presiding judge [for a participating court] shall by court order establish:

(a) Qualifications for persons serving as visitors for the court, in addition to those qualifications established by this section; and

(b) Standards and procedures to be used by visitors in the performance of their duties.

(2) A visitor [serving for a participating court] may be an employee of the court. The visitor may not have any personal interest in the respondent or protected person, or any pecuniary or financial interest in the proceedings, if those interests could compromise or otherwise affect the decisions of the visitor. A visitor may not receive compensation for services rendered as a fiduciary for two or more protected persons at the same time who are not related to the fiduciary.

(3) A visitor [serving for a participating court] must:

(a) Have the training and expertise adequate to allow the person to conduct the interviews and make the recommendations required under [sections 5 to 13 of this 1999 Act] ORS 125.150 and 125.155, to communicate with, assess and interact with respondents and protected persons, and to perform the other duties required of a visitor; and

(b) Demonstrate sufficient knowledge of the law so as to be able to inform a respondent or protected person of the nature and effect of a protective proceeding, to inform a respondent or protected person of the rights of the respondent or protected person in the protective proceeding, to answer the questions of a respondent or protected person and to inform fiduciaries concerning their powers and duties.

SECTION 3. ORS 125.055 is amended to read:

125.055. (1) A petition in a protective proceeding that seeks the appointment of a fiduciary must designate the type of fiduciary that the petitioner seeks to have appointed. If the petition does not request the appointment of a fiduciary, or if the petition requests both the appointment of a fiduciary and some other protective order, the petition must contain a statement of the nature of the protective order requested. The caption of the petition must reflect the type of fiduciary whose appointment is requested or, if the appointment of a fiduciary is not requested, the nature of the protective order requested. An original and duplicate copy of the petition must be filed with the court.

(2) A petition in a protective proceeding must contain the following information to the extent that the petitioner is aware of the information or to the extent that the petitioner is able to acquire the information with reasonable effort:

(a) The name, age, residence address and current location of the respondent.

(b) The interest of the petitioner.

(c) The name, age and address of the petitioner and any person nominated as fiduciary in the petition and the relationship of the nominated person to the respondent.

(d) A statement as to whether the person nominated to be fiduciary has been convicted of a crime, has filed for or received protection under the bankruptcy laws or has had a license revoked or canceled that was required by the laws of any state for the practice of a profession or occupation. If the nominated person has been convicted of a crime, filed for or received protection under bankruptcy laws or had a professional or occupational license revoked or canceled, the petition shall contain a statement of the circumstances surrounding those events. If the person nominated is not the petitioner, the statement must indicate that the person nominated is willing and able to serve.

(e) The name and address of any fiduciary that has been appointed for the respondent by a court of any state, any trustee for a trust established by or for the respondent, any person appointed as a health care representative under the provisions of ORS 127.505 to 127.660 and any person acting as attorney-in-fact for the respondent under a power of attorney.

(f) The name and address of the respondent’s treating physician and any other person who is providing care to the respondent.

(g) The factual information that supports the request for the appointment of a fiduciary or entry of other protective order, and the names and addresses of all persons who have information that would support a finding that an adult respondent is incapacitated or financially incapable.

(h) A statement that indicates whether the nominated person intends to place the respondent in a mental health treatment facility, a nursing home or other residential facility.

(i) A general description of the estate of the respondent and the respondent’s sources of income and the amount of that income.

(j) A statement indicating whether the person nominated as fiduciary is a public or private agency or organization that provides services to the respondent or an employee of a public or private agency or organization that provides services to the respondent.

(3) In addition to the requirements of subsection (2) of this section, if a petition seeks appointment of a guardian, the petition must contain a statement on whether the guardian will exercise any control over the estate of the respondent. If the guardian will exercise any control over the estate of the respondent, the petition must contain a statement of the monthly income of the respondent, the sources of the respondent’s income, and the amount of any moneys that the guardian will be holding for the respondent at the time of the appointment. If the petition seeks the appointment of a guardian for an adult respondent or of a temporary fiduciary who will exercise the powers of a guardian for an adult respondent, the petition must contain a statement notifying the court that a visitor must be appointed.

(4) In addition to the requirements of subsection (2) of this section, if a petition seeks appointment of a conservator or a temporary fiduciary who will exercise the powers of a conservator or if a petition seeks a protective order relating to the estate of the respondent, the petition must contain the petitioner’s estimate of the value of the estate.

(5) A petitioner may join parties in a petition in the manner provided by ORCP 28 for the joining of defendants.

(6) The court shall review a petition seeking appointment of a guardian and shall dismiss the proceeding without prejudice, or require that the petition be amended, if the court determines that the petition does not meet the requirements of this section.

SECTION 4. ORS 125.080 is amended to read:

125.080. (1) The court may require that a hearing be held on any petition or motion in a protective proceeding.

(2) A hearing must be held on a petition or motion if an objection is filed to the petition or motion and the objection is not withdrawn before the time scheduled for the hearing.

(3) The respondent or protected person may appear at a hearing in person or by counsel.

(4) If the court requires that a hearing be held on a petition, or a hearing is otherwise required under this section, the court may appoint counsel for the respondent unless the respondent is already represented by counsel.

SECTION 5. ORS 125.150 is amended to read:

125.150. (1) The court shall appoint a visitor upon the filing of a petition in a protective proceeding that seeks the appointment of a guardian for an adult respondent or temporary fiduciary who will exercise the powers of a guardian for an adult respondent. The court may appoint a visitor in any other protective proceeding.

(2) A visitor may be an officer, employee or special appointee of the court. The person appointed may not have any personal interest in the proceedings. The person appointed must have training or expertise adequate to allow the person to appropriately evaluate the functional capacity and needs of a respondent or protected person. The court shall provide a copy of the petition and other filings in the proceedings that may be of assistance to the visitor.

(3) A visitor appointed by the court under this section shall interview a person nominated or appointed as fiduciary and the respondent or protected person personally at the place where the respondent or protected person is located. Subject to any law relating to confidentiality, the visitor may interview any physician or psychologist who has examined the respondent or protected person, the person or officer of the institution having the care, custody or control of the respondent or protected person and any other person who may have relevant information.

(4) A visitor shall determine whether it appears that the respondent or protected person is able to attend the hearing and, if able to attend, whether the respondent or protected person is willing to attend the hearing.

(5) If a petition is filed seeking the appointment of a guardian for an adult respondent, a visitor shall investigate the following matters:

(a) The inability of the respondent to provide for the needs of the respondent with respect to physical health, food, clothing and shelter;

(b) The location of the respondent’s residence and the ability of the respondent to live in the residence while under guardianship;

(c) Alternatives to guardianship considered by the petitioner and reasons why those alternatives are not available;

(d) Health or social services provided to the respondent during the year preceding the filing of the petition, when the petitioner has information as to those services;

(e) The inability of the respondent to resist fraud or undue influence; and

(f) Whether the respondent’s inability to provide for the needs of the respondent is an isolated incident of negligence or improvidence, or whether a pattern exists.

(6) If a petition is filed seeking the appointment of a fiduciary, a visitor shall determine whether the respondent objects to:

(a) The appointment of a fiduciary; and

(b) The nominated fiduciary or prefers another person to act as fiduciary.

(7) If a petition is filed seeking the appointment of a conservator in addition to the appointment of a guardian, a visitor shall investigate whether the respondent is financially incapable. The visitor shall interview the person nominated to act as conservator and shall interview the respondent personally at the place where the respondent is located.

(8) A visitor shall determine whether the respondent or protected person wishes to be represented by counsel and, if so, whether the respondent or protected person has retained counsel and, if not, the name of an attorney the respondent or protected person wishes to retain.

(9) If the respondent or protected person has not retained counsel, a visitor shall determine whether the respondent or protected person desires the court to appoint counsel.

(10) If the respondent or protected person does not plan to retain counsel and has not requested the appointment of counsel by the court, a visitor shall determine whether the appointment of counsel would help to resolve the matter and whether appointment of counsel is necessary to protect the interests of the respondent or protected person.

SECTION 6. ORS 125.155 is amended to read:

125.155. (1) A visitor shall file a report in writing with the court within 15 days after the visitor is appointed. The court may grant additional time for filing the visitor’s report upon a showing of necessity and good cause.

(2) The report of the visitor appointed at the time a petition is filed requesting the appointment of a fiduciary must include the following:

(a) A statement of [the visitor’s belief about whether the allegations contained in the petition are substantially correct] information gathered by the visitor relating to the correctness of the allegations contained in the petition, whether the appointment of a fiduciary is necessary and whether the nominated fiduciary is qualified and willing to serve.

(b) The name, address and telephone number of each person interviewed for the report, the date of the interview and the relationship of the person interviewed to the respondent.

(c) The recommendations of the visitor with regard to the suitability of the nominated fiduciary, any limitations that should be imposed on the fiduciary and the need for further evaluation.

(d) The [belief and] recommendation of the visitor on any issue the court specifically asks the visitor to investigate regarding the propriety of appointing a fiduciary for the respondent.

(e) The visitor’s determinations required by ORS 125.150.

(f) Any express communication made by the respondent relating to the desires of the respondent regarding representation by counsel.

(g) Any express communication made by the respondent with respect to whether the respondent is willing to attend a hearing, wishes to contest the appointment of a fiduciary, objects to the nominated fiduciary or prefers another person act as fiduciary.

(3) The State Court Administrator may prescribe one or more forms to be used by visitors for filing their reports.

(4) As soon as possible after a report is filed with the court under the provisions of this section, the clerk of the court shall mail copies of the report to any person who has filed with the court a specific request for a copy of the report. A request made under ORS 125.060 (3)(b) does not meet the requirements of this subsection unless the request specifically requests a copy of the visitor’s report.

(5) The visitor must be present at the hearing on any objections to the appointment of a fiduciary. A visitor is entitled to reasonable compensation for attendance at the hearing. The court shall notify the visitor of the time and place of any hearing on objections to the appointment.

SECTION 7. The amendments to ORS 125.055, 125.080, 125.150 and 125.155 and sections 9 and 10, chapter 775, Oregon Laws 1999, by sections 1 to 6 of this 2003 Act apply only to guardianships commenced by the filing of a petition on or after the operative date of the amendments to ORS 125.055, 125.080, 125.150 and 125.155 and sections 9 and 10, chapter 775, Oregon Laws 1999, by sections 1 to 6 of this 2003 Act.

SECTION 8. The amendments to ORS 125.055, 125.080, 125.150 and 125.155 and sections 9 and 10, chapter 775, Oregon Laws 1999, by sections 1 to 6 of this 2003 Act become operative on January 1, 2004.

SECTION 9. Section 16, chapter 775, Oregon Laws 1999, is amended to read:

Sec. 16. Sections 5 [to 13 of this 1999 Act], 6, 7, 8, 11, 12 and 13, chapter 775, Oregon Laws 1999, are repealed December 31, 2003.

SECTION 10. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor June 6, 2003

Filed in the office of Secretary of State June 9, 2003

Effective date June 6, 2003

__________