72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 455
A-Engrossed
Senate Bill 32
Ordered by the Senate March 20
Including Senate Amendments dated March 20
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon State Bar Elder Law Section)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Modifies role and responsibilities of court visitors in
protective proceedings. Requires hearings and appointment of
counsel in certain protective proceedings.
{ + Declares emergency, effective on passage. + }
A BILL FOR AN ACT
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. + }
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