72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 35
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)
CHAPTER ................
AN ACT
Relating to fiduciaries; amending ORS 125.221.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 125.221 is amended to read:
125.221. (1) A fiduciary may employ a person in which the
fiduciary has a pecuniary or financial interest only after
disclosing the nature of the interest to the court if the person
is employed for the purpose of providing direct services to the
protected person or for the purpose of providing services to the
fiduciary that directly affect the protected person. Before the
person is employed, the fiduciary must provide the court with the
following:
(a) A full and accurate disclosure of the pecuniary or
financial interest of the fiduciary in the person.
(b) A full and accurate disclosure of the services to be
performed by the person.
(c) A full and accurate disclosure of the anticipated costs to
the estate in using the person to provide the services.
(2) In addition to the disclosures required by subsection (1)
of this section, after making such inquiry as the court deems
appropriate, the court may require additional disclosures for the
purpose of assessing whether the pecuniary or financial interest
of the fiduciary could compromise or otherwise affect decisions
made by the fiduciary in carrying out the duties of the
fiduciary.
(3) The continuing authority of a court over protective
proceedings under ORS 125.025 includes the authority to supervise
and inquire into:
(a) Whether the fiduciary by employing a person in which the
fiduciary has a pecuniary or financial interest is acting
reasonably to accomplish the purposes for which the fiduciary was
appointed.
(b) Whether the employment of the person by the fiduciary is
necessary to provide the services efficiently and effectively.
(c) The extent that the pecuniary or financial interest of the
person employed by the fiduciary could compromise or otherwise
affect the decisions made by the fiduciary in carrying out the
duties of the fiduciary.
Enrolled Senate Bill 35 (SB 35-A) Page 1
{ + (4) In addition to the disclosures required by
subsections (1) and (2) of this section, prior court approval is
required for payment of compensation to a person who is the
spouse, parent or child of the fiduciary or to a business entity
in which the spouse, parent or child of the fiduciary has an
ownership interest and that is employed by the fiduciary to
provide direct services to a protected person or to provide
services to the fiduciary that directly affect the protected
person. The fiduciary must provide the court with the following
information:
(a) The specific services to be provided;
(b) The qualifications of the person providing the services;
(c) The rate of compensation charged by the person; and
(d) Any other information relevant to either the person
providing the services or the services being provided to the
protected person, including, but not limited to, loss of a
professional license or a criminal conviction. + }
{ - (4) - } { + (5) + } The court { - shall - }
{ + may + } not approve any fees or expenses requested by the
fiduciary to the extent that the combined fees of the fiduciary
and the person employed by the fiduciary under this section
exceed the amount the court finds would have been appropriate for
payment to the fiduciary if the fiduciary had provided the
services alone.
{ - (5) - } { + (6) + } A fiduciary has a pecuniary or
financial interest in another person for the purposes of this
section if the fiduciary, or any person related to, employed by
or affiliated with the fiduciary has:
(a) Any direct or indirect ownership interest in the person;
(b) A business association with the person; or
(c) Any financial involvement with the person.
{ - (6) - } { + (7) + } A fiduciary has a pecuniary or
financial interest in another person for the purposes of this
section if the fiduciary, or any person related to, employed by
or affiliated with the fiduciary, receives remuneration or any
other financial benefit from the person, without regard to
whether that remuneration or benefit is directly tied to the
services provided to the fiduciary or protected person.
{ - (7) - } { + (8) + } In addition to the grounds
specified in subsections
{ - (5) and - } (6) { + and (7) + } of this section, a
fiduciary has a pecuniary or financial interest in another person
for the purposes of this section if the relationship between the
fiduciary and other person is such that the relationship could
compromise or otherwise affect decisions made by the fiduciary in
carrying out the duties of the fiduciary.
{ - (8) - } { + (9) + } A fiduciary employs a person for
the purposes of this section whether the person is engaged as an
employee or as an independent contractor.
Enrolled Senate Bill 35 (SB 35-A) Page 2
----------
Passed by Senate January 28, 2003
Repassed by Senate May 30, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 19, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 35 (SB 35-A) Page 3
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 35 (SB 35-A) Page 4