Chapter 386 Oregon Laws 2005

AN ACT

HB 2416

Relating to abuse of vulnerable persons; creating new provisions; and amending ORS 124.100, 124.105 and 124.110.

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

SECTION 1. ORS 124.100 is amended to read:

124.100. (1) As used in ORS 124.100 to 124.140:

(a) “Elderly person” means a person 65 years of age or older.

(b) “Financially incapable” has the meaning given that term in ORS 125.005.

(c) “Incapacitated” has the meaning given that term in ORS 125.005.

(d) “Person with disabilities” means a person with a physical or mental impairment that:

(A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and

(B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.

(e) “Vulnerable person” means:

(A) An elderly person;

(B) A financially incapable person;

(C) An incapacitated person; or

(D) A person with disabilities who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the person’s physical or mental impairment.

[(1)] (2) [An elderly or incapacitated] A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse. The court shall award the following to a plaintiff who prevails in an action under this section:

(a) An amount equal to three times all economic damages, as defined in ORS 31.710, resulting from the physical or financial abuse, or $500, whichever amount is greater.

(b) An amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical or financial abuse.

(d) Reasonable fees for the services of a conservator or guardian ad litem incurred by reason of the litigation of a claim brought under this section.

[(2)] (3) An action may be brought under [the provisions of] this section only by:

(a) A [person who is 65 or more years of age, by an incapacitated person] vulnerable person[, by];

(b) A guardian, conservator or attorney-in-fact for a vulnerable person [who is incapacitated or 65 or more years of age]; or [by]

(c) A personal representative for the estate of a decedent who was [incapacitated or 65 or more years of age] a vulnerable person at the time the cause of action arose. [A person shall be considered incapacitated for the purposes of ORS 124.100 to 124.140 if the person is either incapacitated as defined in ORS 125.005 or financially incapable as defined in ORS 125.005.]

[(3)] (4) An action may only be brought under [the provisions of] this section for physical abuse described in ORS 124.105 or for financial abuse described in ORS 124.110.

[(4)] (5) An action may be brought under this section against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.

[(5)] (6) A person commencing an action under this section must serve a copy of the complaint on the Attorney General within 30 days after the action is commenced.

SECTION 1a. If House Bill 2291 becomes law, section 1 of this 2005 Act (amending ORS 124.100) is repealed and ORS 124.100, as amended by section 1, chapter 87, Oregon Laws 2005 (Enrolled House Bill 2291), is amended to read:

124.100. (1) As used in ORS 124.100 to 124.140:

(a) “Elderly person” means a person 65 years of age or older.

(b) “Financially incapable” has the meaning given that term in ORS 125.005.

(c) “Incapacitated” has the meaning given that term in ORS 125.005.

(d) “Person with disabilities” means a person with a physical or mental impairment that:

(A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and

(e) “Vulnerable person” means:

(A) An elderly person;

(B) A financially incapable person;

(C) An incapacitated person; or

(D) A person with disabilities who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the person’s physical or mental impairment.

(a) An amount equal to three times all economic damages, as defined in ORS 31.710, resulting from the physical or financial abuse, or $500, whichever amount is greater.

(b) An amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical or financial abuse.

(d) Reasonable fees for the services of a conservator or guardian ad litem incurred by reason of the litigation of a claim brought under this section.

[(2)] (3) An action may be brought under [the provisions of] this section only by:

(a) A vulnerable person [who is 65 or more years of age];

[(b) An incapacitated person;]

[(c)] (b) A guardian, conservator or attorney-in-fact for a vulnerable person [who is incapacitated or 65 or more years of age];

[(d)] (c) A personal representative for the estate of a decedent who was [incapacitated or 65 or more years of age] a vulnerable person at the time the cause of action arose; or

[(e)] (d) A trustee for a trust on behalf of the trustor or the spouse of the trustor who is [incapacitated or 65 or more years of age] a vulnerable person.

[(3) A person is considered incapacitated for the purposes of ORS 124.100 to 124.140 if the person is either incapacitated as defined in ORS 125.005 or financially incapable as defined in ORS 125.005.]

(4) An action may be brought under [the provisions of] this section only for physical abuse described in ORS 124.105 or for financial abuse described in ORS 124.110.

(5) An action may be brought under this section against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.

(6) A person commencing an action under this section must serve a copy of the complaint on the Attorney General within 30 days after the action is commenced.

SECTION 2. ORS 124.105 is amended to read:

124.105. (1) An action may be brought under ORS 124.100 for physical abuse if the defendant engaged in conduct against [an elderly or incapacitated] a vulnerable person that would constitute any of the following:

(a) Assault, under the provisions of ORS 163.160, 163.165, 163.175 and 163.185.

(b) Menacing, under the provisions of ORS 163.190.

(d) Criminal mistreatment, under the provisions of ORS 163.200 and 163.205.

(e) Rape, under the provisions of ORS 163.355, 163.365 and 163.375.

(f) Sodomy, under the provisions of ORS 163.385, 163.395 and 163.405.

(g) Unlawful sexual penetration, under the provisions of ORS 163.408 and 163.411.

(h) Sexual abuse, under the provisions of ORS 163.415, 163.425 and 163.427.

(i) Strangulation, under ORS 163.187.

(2) An action may be brought under ORS 124.100 for physical abuse if the defendant used any unreasonable physical constraint on the [plaintiff] vulnerable person or subjected the [plaintiff] vulnerable person to prolonged or continued deprivation of food or water.

(3) An action may be brought under ORS 124.100 for physical abuse if the defendant used a physical or chemical restraint, or psychotropic medication on the [plaintiff] vulnerable person without an order from a physician licensed in the State of Oregon or under any of the following conditions:

(a) For the purpose of punishing the [elderly or incapacitated] vulnerable person.

(b) For any purpose not consistent with the purposes authorized by a physician.

SECTION 3. ORS 124.110 is amended to read:

124.110. (1) An action may be brought under ORS 124.100 for financial abuse in the following circumstances:

(a) When a person wrongfully takes or appropriates money or property of [an elderly or incapacitated] a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the [elderly or incapacitated] vulnerable person.

(b) When [an elderly or incapacitated] a vulnerable person requests that another person transfer to the [elderly or incapacitated] vulnerable person any money or property that the other person holds or controls and that belongs to or is held in express trust, constructive trust or resulting trust for the [elderly or incapacitated] vulnerable person, and the other person, without good cause, either continues to hold the money or property or fails to take reasonable steps to make the money or property readily available to the [elderly or incapacitated] vulnerable person when:

(A) The ownership or control of the money or property was acquired in whole or in part by the other person or someone acting in concert with the other person from the [elderly or incapacitated] vulnerable person; and

(B) The other person acts in bad faith, or knew or should have known of the right of the [elderly or incapacitated] vulnerable person to have the money or property transferred as requested or otherwise made available to the [elderly or incapacitated] vulnerable person.

(c) When a person has at any time engaged in conduct constituting a violation of a restraining order regarding sweepstakes that was issued under ORS 124.020.

(2) A transfer of money or property that is made for the purpose of qualifying [an elderly or incapacitated] a vulnerable person for Medicaid benefits or for any other state or federal assistance program, or the holding and exercise of control over money or property after such a transfer, does not constitute a wrongful taking or appropriation under subsection (1)(a) of this section or the holding of money or property without good cause for the purposes of subsection (1)(b) of this section.

SECTION 4. The amendments to ORS 124.100, 124.105 and 124.110 by sections 1 to 3 of this 2005 Act apply to conduct described in ORS 124.105 and 124.110 that gives rise to a cause of action under ORS 124.100 to 124.140 that occurs on or after the effective date of this 2005 Act.

Approved by the Governor June 29, 2005

Filed in the office of Secretary of State June 29, 2005

Effective date January 1, 2006

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