75th OREGON LEGISLATIVE ASSEMBLY--2009 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 649
(To Resolve Conflicts)
A-Engrossed
House Bill 2177
Ordered by the Senate May 28
Including Senate Amendments dated May 28 to resolve conflicts
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Veterans' Affairs)
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.
Permits Department of Veterans' Affairs to receive monetary and
nonmonetary grants, donations and gifts. Permits department to
sell or convert nonmonetary grants, donations and gifts to moneys
when sale or conversion is not inconsistent with purpose or
limitation specified in grant, donation or gift and to use moneys
to carry out duties under law.
Declares emergency, effective on passage.
A BILL FOR AN ACT
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.
(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.
(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.
(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 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.
(c) To the nearest of kin of the decedent or the nominee of the
nearest of kin 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
(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) - } { + (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. + }
----------