Chapter 602 Oregon Laws 2009

AN ACT

HB 2177

Relating to assets received by Department of Veterans’ Affairs; creating new provisions; amending ORS 113.085, 125.240, 125.410, 406.050 and 408.365 and section 3, chapter 564, Oregon Laws 2007; and declaring an emergency.

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

SECTION 1. ORS 406.050 is amended to read:

406.050. In addition to other powers and duties, the [Director of Veterans’ Affairs or the] Department of Veterans’ Affairs is authorized:

(1) To cooperate with officers and agencies of the United States in all matters affecting veterans’ welfare.

(2) To accept monetary and nonmonetary grants, donations and gifts on behalf of this state [for veterans’ welfare] from any person[, corporation, government or governmental agency] or governmental or nongovernmental entity. [Grants, donations and gifts so received shall be deposited with the State Treasurer and credited to a trust fund.] The department shall deposit with the State Treasurer all monetary grants, donations and gifts received. The State Treasurer shall credit the amounts deposited to a trust fund established for the purposes of this section. Moneys in the trust fund are continuously appropriated to the department and [expendable] may be expended for the purposes specified in subsections (3), (4) and (5) [and (4)] of this section. Interest earned on the moneys in the trust fund [created] established under this subsection shall accrue to the trust fund.

(3) To expend all or any portion of a monetary grant, donation or gift for the purposes specified in the grant, donation or gift.

(4) To expend [all or any portion of a grant, donation or gift] moneys in the trust fund [created] established under subsection (2) of this section [for the administration of ORS 406.010 to 406.070, 406.090, 406.210, 406.220 and 406.340 and for the administration and purposes of ORS 408.368 when] as the department deems appropriate for purposes consistent with the department’s authority under Articles XI-A and XI-F(2) of the Oregon Constitution and under this chapter and ORS chapters 88, 273, 407 and 408 if:

(a) The department determines that the purpose specified in the grant, donation or gift has been satisfied, has expired or is not feasible or appropriate; or

[(b) The grant, donation or gift specifies no purpose.]

[(5) To donate or otherwise transfer all or any portion of a grant, donation or gift to other persons, corporations or entities engaged in serving veterans if the department determines that the nature of the grant, donation or gift makes use by the department or conversion to cash for use by the department not feasible or appropriate.]

(b) Expenditure of trust fund moneys is not limited by the specific terms of a specific grant, donation or gift.

(5) To expend or otherwise dispose of a nonmonetary grant, donation or gift received by selling or otherwise converting a grant, donation or gift into moneys unless the sale or conversion is inconsistent with a limitation specified in the grant, donation or gift. Notwithstanding a specified limitation, the department may sell or otherwise convert a nonmonetary grant, donation or gift into moneys if the department determines that the limitation has been satisfied, has expired or is not feasible or appropriate. The department shall deposit the moneys realized from any sale or conversion under this subsection into the trust fund established in subsection (2) of this section.

(6) If the department determines that the nature of a nonmonetary grant, donation or gift makes its use by the department, or its sale or conversion to moneys for use by the department not feasible or appropriate, to donate or otherwise transfer all or any portion of the nonmonetary grant, donation or gift to:

(a) A person or governmental or nongovernmental entity that the department determines is engaged in serving veterans or veterans’ survivors or dependents.

(b) A veteran or veteran’s survivor or dependent whom the department determines is in need of emergency assistance.

[(6)] (7) To act as agent or attorney in fact for any war veteran and the dependents or beneficiaries of any war veteran relating to rights under any federal or state law.

[(7)] (8) To act without bond as conservator of the estate of:

(a) A person who qualifies for benefits from the United States Department of Veterans Affairs.

(b) A dependent, an immediate family member, a survivor or a former spouse who has not remarried of a person who qualifies for benefits, or who qualified for benefits while alive, from the United States Department of Veterans Affairs, as those persons are defined by rule by the [director] Department of Veterans’ Affairs.

[(8)] (9) On behalf of the State of Oregon, to extend such assistance as the department [of Veterans’ Affairs shall determine] determines to be reasonably required to any war veteran and to the dependents of any such war veteran, in the prosecution of any claim [or claims] before the United States Department of Veterans Affairs, or any other federal or state agency, the securing of employment or relief and any other benefits to which [they] the war veteran and the dependents of the war veteran might be entitled. [The Department of Veterans’ Affairs may adopt rules and regulations with respect to all matters of administration to carry into effect the purposes of this section.]

[(9)] (10) To require and collect such reasonable service charges as the department [of Veterans’ Affairs deems] determines, by rule, are necessary and expedient to carry out a duty, or to exercise a power or authority, conferred on the department by law.

(11) The Department of Veterans’ Affairs may adopt rules and regulations with respect to all matters of administration to carry into effect the purposes of this section.

SECTION 1a. If Senate Bill 96 becomes law, ORS 406.050, as amended by section 1 of this 2009 Act, is amended to read:

406.050. In addition to other powers and duties, the Department of Veterans’ Affairs is authorized:

(1) To cooperate with officers and agencies of the United States in all matters affecting veterans’ welfare.

(2) To accept monetary and nonmonetary grants, donations and gifts on behalf of this state from any person or governmental or nongovernmental entity. The department shall deposit with the State Treasurer all monetary grants, donations and gifts received. The State Treasurer shall credit the amounts deposited to a trust fund established for the purposes of this section. Moneys in the trust fund are continuously appropriated to the department and may be expended for the purposes specified in subsections (3), (4) and (5) of this section. Interest earned on the moneys in the trust fund established under this subsection shall accrue to the trust fund.

(3) To expend all or any portion of a monetary grant, donation or gift for the purposes specified in the grant, donation or gift.

(4) To expend moneys in the trust fund established under subsection (2) of this section as the department deems appropriate for purposes consistent with the department’s authority under Articles XI-A and XI-F(2) of the Oregon Constitution and under this chapter and ORS chapters 88, 273, 407 and 408 if:

(a) The department determines that the purpose specified in the grant, donation or gift has been satisfied, has expired or is not feasible or appropriate; or

(b) Expenditure of trust fund moneys is not limited by the specific terms of a specific grant, donation or gift.

(a) A person or governmental or nongovernmental entity that the department determines is engaged in serving veterans or veterans’ survivors or dependents.

(b) A veteran or veteran’s survivor or dependent whom the department determines is in need of emergency assistance.

(7) To act as agent or attorney in fact for any [war] veteran and the dependents or beneficiaries of any [war] veteran relating to rights under any federal or state law.

(8) To act without bond as conservator of the estate of:

(a) A person who qualifies for benefits from the United States Department of Veterans Affairs.

(9) On behalf of the State of Oregon, to extend such assistance as the department determines to be reasonably required to any [war] veteran and to the dependents of any such [war] veteran, in the prosecution of any claim before the United States Department of Veterans Affairs, or any other federal or state agency, the securing of employment or relief and any other benefits to which the [war] veteran and the dependents of the [war] veteran might be entitled.

(10) To require and collect such reasonable service charges as the department determines, by rule, are necessary and expedient to carry out a duty, or to exercise a power or authority, conferred on the department by law.

(11) The Department of Veterans’ Affairs may adopt rules and regulations with respect to all matters of administration to carry into effect the purposes of this section.

SECTION 1b. If Senate Bill 96 becomes law, the amendments to ORS 406.050 by section 1a of this 2009 Act become operative on January 1, 2010.

SECTION 2. ORS 113.085 is amended to read:

113.085. (1) Except as provided in subsection (2) of this section, upon the filing of the petition, if there is no will or there is a will and it has been proved, the court shall appoint a qualified person it finds suitable as personal representative, giving preference in the following order:

(a) To the executor named in the will.

(b) To the surviving spouse of the decedent or the nominee of the surviving spouse of the decedent.

(d) To the Director of Human Services or a designee, if it appears the decedent received public assistance pursuant to ORS chapter 411 or 414 and that such assistance is a claim against the estate.

(e) To the Department of Veterans’ Affairs, if the decedent was a protected person under ORS 406.050 [(7)] (8), and the department has joined in the petition for such appointment.

(f) To any other person.

(2) Except as provided in subsection (3) of this section, the court shall appoint the Department of State Lands as personal representative if it appears that the decedent died wholly intestate and without known heirs. The Attorney General shall represent the Department of State Lands in the administration of the estate. Any funds received by the Department of State Lands in the capacity of personal representative may be deposited in accounts, separate and distinct from the General Fund, established with the State Treasurer. Interest earned by such account shall be credited to that account.

(3) The court may appoint a person other than the Department of State Lands to administer the estate of a decedent who died wholly intestate and without known heirs if the person filing a petition under ORS 113.035 attaches written authorization from an estate administrator of the Department of State Lands appointed under ORS 113.235 approving the filing of the petition by the person. Except as provided by rule adopted by the Director of the Department of State Lands, an estate administrator may consent to the appointment of another person to act as personal representative only if it appears after investigation that the estate is insolvent.

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 fiduciary will employ a person in which the nominated person has a pecuniary or financial interest.

(f) The number of protected persons for whom the person 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 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 and the name of the person with whom the protected person will have personal contact if that person is not the person 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 results of the criminal records check shall be provided by the petitioner to the court. Results of criminal records checks submitted to the court are confidential, shall be subject to inspection only by the parties to the proceedings and their attorneys, and shall 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 any criminal conviction of the professional fiduciary that occurs after the criminal records check was performed. The criminal records check under this subsection shall 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 the criminal records check is performed;

(B) The person has disclosed the existence of a criminal conviction; or

(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)] (8), 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)] (8) 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 and the name of the person with whom the protected person will have personal contact if the person 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.

SECTION 4. ORS 125.410 is amended to read:

125.410. (1) Except as provided in subsection (2) of this section, the court shall require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the conservator according to law, with sureties as specified by the court. Unless otherwise directed, the bond must be in the amount of the aggregate capital value of the property of the estate in the control of the conservator plus one year’s estimated income minus the value of securities and money deposited under arrangements requiring an order of the court for their removal and the value of any real property that the conservator, by express limitation of power, lacks power to sell or convey without court authorization.

(2)(a) The court may waive a bond for good cause shown.

(b) Subsection (1) of this section does not affect the provisions of ORS 709.240, relating to a trust company acting as fiduciary, ORS 125.715, relating to a public guardian acting as fiduciary, or ORS 406.050 [(7)] (8), relating to the Department of Veterans’ Affairs acting as fiduciary.

(3) Sureties for a bond required under this section are jointly and severally liable with the conservator and with each other.

(4) Letters of conservatorship may not be issued until the bond required by this section is approved by the court.

(5) The bond of the conservator continues in effect until the sureties on the bond are released by order of the court.

(6) The court may at any time increase or reduce the amount of the bond required of a conservator for the protection of the protected person and the estate of the protected person.

(7) If a surety on a bond required by this section gives notice of intent to cancel the bond, the conservator shall execute and file in the protective proceeding a new bond before the cancellation date specified by the surety. The new bond shall be in the amount and subject to those conditions that may be required by the court. If the conservator fails to file a new bond, the authority of the conservator ends on the date specified by the surety for cancellation of the bond. The letters of conservatorship issued to the conservator are void from that date, and the conservator must make and file the final accounting of the conservator.

SECTION 5. ORS 408.365 is amended to read:

408.365. Moneys to pay for the expenses of operating the Oregon Veterans’ Home may be appropriated from:

(1) The General Fund;

(2) The Oregon War Veterans’ Fund pursuant to section 1 (1)(e)[,] of Article XI-A[,] of the Oregon Constitution; and

(3) Moneys donated to the trust fund established [by the Director of Veterans’ Affairs] under ORS 406.050 for the purpose of paying for the expenses of operating the Oregon Veterans’ Home, or moneys in the trust fund that the [director] Department of Veterans’ Affairs determines may be expended for those purposes.

SECTION 6. Section 3, chapter 564, Oregon Laws 2007, is amended to read:

Sec. 3. (1) The Director of Veterans’ Affairs shall pay to the Department of Transportation all of the department’s anticipated costs of issuance of the veterans’ recognition registration plate from grants, donations and gifts accepted by the [director] Department of Veterans’ Affairs under ORS 406.050 that may be expended for the purpose of issuance of a veterans’ recognition registration plate.

(2) If a veterans’ group requests issuance of a veterans’ recognition registration plate under [section 2 of this 2007 Act] ORS 805.105, the group shall pay to the department all of the department’s anticipated costs of issuing a veterans’ recognition registration plate that names, describes or represents the group. The department may not begin creating or issuing the plates until the anticipated costs are paid. For purposes of this section, costs of issuing a veterans’ recognition registration plate that names, describes or represents a veterans’ group include, but are not limited to, computer programming costs and vendor set-up fees.

SECTION 7. This 2009 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2009 Act takes effect on its passage.

Approved by the Governor June 26, 2009

Filed in the office of Secretary of State June 26, 2009

Effective date June 26, 2009

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