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 461
Senate Bill 36
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 as
introduced.
Requires professional fiduciaries to undergo annual criminal
records check. Requires professional fiduciaries to disclose
criminal conviction within 30 days of conviction.
A BILL FOR AN ACT
Relating to professional fiduciaries; creating new provisions;
and amending ORS 125.240.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2003 Act is added to and made
a part of ORS chapter 125. + }
SECTION 2. { + (1) After the court appoints a professional
fiduciary as described in ORS 125.240 (5), the professional
fiduciary shall undergo and provide the results of a criminal
records check by December 31 of each year to the court in each
county in which the professional fiduciary has been appointed.
(2) Results of criminal records checks provided to the court
are confidential, are subject to inspection only by the parties
to the proceedings and their attorneys, and are not subject to
inspection by members of the public except pursuant to a court
order entered after a showing of good cause.
(3) The criminal records check under this section must consist
of a check for a criminal record in the State of Oregon and a
national criminal records check if:
(a) A criminal records check in Oregon discloses the existence
of a criminal record in another jurisdiction;
(b) The person has disclosed the existence of a criminal
conviction in another jurisdiction; or
(c) The person has resided in another state within five years
before the date on which the criminal records check is performed.
(4) The requirements of this section do not apply to any person
who serves as a public guardian or conservator, or any staff of a
public guardian or conservator, who is operating under ORS
125.700 to 125.730 or 406.050 and who is otherwise required to
acquire a criminal records check for other purposes. + }
SECTION 3. ORS 125.240 is amended to read:
125.240. (1) If a petition seeks the appointment of a
professional fiduciary as described in subsection (5) of this
section, the petition must contain the following information in
addition to that information required under ORS 125.055:
(a) A description of the events that led to the involvement of
the professional fiduciary in the case.
(b) The professional fiduciary's educational background and
professional experience.
(c) The fees charged by the professional fiduciary and whether
the fees are on an hourly basis or are based on charges for
individual services rendered.
(d) The names of providers of direct services to protected
persons that are repeatedly used by the professional fiduciary
under contract.
(e) The disclosures required under ORS 125.221 if the
{ - person nominated to act as - } { + professional + }
fiduciary will employ a person in which the { - nominated
person - } { + professional fiduciary + } has a pecuniary or
financial interest.
(f) The number of protected persons for whom the
{ - person - } { + professional fiduciary + } performs
fiduciary services at the time of the petition.
(g) Whether the professional fiduciary has ever had a claim
against the bond of the fiduciary and a description of the
circumstances causing the claim.
(h) Whether the professional fiduciary or any staff with
responsibility for making decisions for clients or for management
of client assets has ever filed for bankruptcy and the date of
filing.
(i) Whether the professional fiduciary or any staff with
responsibility for making decisions for clients or for management
of client assets has ever been denied a professional license that
is directly related to responsibilities of the professional
fiduciary, or has ever held a professional license that is
directly related to responsibilities of the professional
fiduciary that was revoked or canceled. If such a license has
been denied, revoked or canceled, the petition must reflect the
date of the denial, revocation or cancellation and the name of
the regulatory body that denied, revoked or canceled the license.
(j) A statement that the criminal records check required under
subsection (2) of this section does not disqualify the
{ - person - } { + professional fiduciary + } from acting as
a fiduciary.
(k) Whether the professional fiduciary and any staff
responsible for making decisions for clients or for management of
client assets is or has been certified by a national or state
association of professional fiduciaries, the name of any such
association and whether the professional fiduciary or other staff
person has ever been disciplined by any such association and the
result of the disciplinary action.
(L) The name, address and telephone number of the individual
who is to act as primary decision maker for the protected
person { + , if that individual is not the professional
fiduciary, + } and the name of the { - person - }
{ + individual + } with whom the protected person will have
personal contact if that { - person - } { + individual + } is
not the
{ - person - } { + individual + } who will act as primary
decision maker for the protected person.
(2)(a) If a petition seeks the appointment of a professional
fiduciary as described in subsection (5) of this section, the
professional fiduciary and all staff with responsibility for
making decisions for clients or for management of client assets
must undergo a criminal records check before the court may
appoint the professional fiduciary. { + The petitioner shall
provide + } the results of the criminal records check { - shall
be provided by the petitioner - } to the court. Results of
criminal records checks
{ - submitted - } { + provided + } to the court are
confidential, { - shall be - } { + are + } subject to
inspection only by the parties to the proceedings and their
attorneys, and { - shall - } { + are + } not { - be - }
subject to inspection by members of the public except pursuant to
a court order entered after a showing of good cause. A
professional fiduciary must disclose to the court { + within 30
days + } { + of the conviction + } any criminal conviction of
the professional fiduciary that occurs after the criminal records
check was performed. The criminal records check under this
subsection { - shall - } { + must + } consist of a check for
a criminal record in the State of Oregon and a national criminal
records check if:
(A) The person has resided in another state within five years
before the date { - that - } { + on which + } the criminal
records check is performed;
(B) The person has disclosed the existence of a criminal
conviction { + in another jurisdiction + }; or
(C) A criminal records check in Oregon discloses the existence
of a criminal record in another jurisdiction.
(b) The requirements of this subsection do not apply to any
person who serves as a public guardian or conservator, or any
staff of a public guardian or conservator, who is operating under
ORS 125.700 to 125.730 or 406.050 and who is otherwise required
to acquire a criminal records check for other purposes.
(3)(a) If a petition seeks the appointment of a public guardian
and conservator operating under the provisions of ORS 125.700 to
125.730, or the appointment of a conservator under ORS 406.050
(7), the petition need not contain the information described in
subsection (1)(d) or (L) of this section.
(b) If a public guardian and conservator operating under the
provisions of ORS 125.700 to 125.730 is appointed to act as a
fiduciary, or a conservator operating under the authority of ORS
406.050 (7) is appointed, the public guardian or conservator must
file with the court within three days after receipt of written
notice of the appointment a statement containing the name,
address and telephone number of the individual who will act as
primary decision maker for the protected person { + , if that
individual is not the public guardian or conservator, + } and the
name of the { - person - } { + individual + } with whom the
protected person will have personal contact if the
{ - person - } { + individual + } named as primary decision
maker will not have personal contact with the protected person.
(4) If the court appoints a professional fiduciary as described
in subsection (5) of this section, the professional fiduciary
must update all information required to be disclosed by
subsection (1) of this section and provide a copy of the updated
statement upon the request of the protected person or upon the
request of any person entitled to notice under ORS 125.060 (3).
The professional fiduciary must provide an updated statement
without demand to the court, the protected person and persons
entitled to notice under ORS 125.060 (3) at any time that there
is a change in the information provided under subsection (1)(L)
or (3)(b) of this section.
(5) The provisions of this section apply to any person
nominated as a fiduciary or serving as a fiduciary who is acting
at the same time as a fiduciary for three or more protected
persons who are not related to the fiduciary.
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