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 581
Senate Bill 237
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 Senate Interim Committee on
Judiciary for Oregon State Bar Estate Planning 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.
Provides that power of attorney may become effective at
specified future time, or upon occurrence of specified future
event or contingency. Allows principal to authorize person or
persons to determine whether specified event or contingency has
occurred, and manner in which determination must be made.
Provides that physician may make determination as to whether
principal has become financially incapable if power of attorney
does not designate person or persons to make determination or if
designated person or persons are not willing or able to make
determination.
A BILL FOR AN ACT
Relating to powers of attorney; creating new provisions; and
amending ORS 127.005, 127.015, 127.025, 127.035 and 127.045.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + For the purposes of ORS 127.005 to 127.045:
(1) 'Agent' includes an attorney-in-fact; and
(2) 'Financially incapable' has the meaning given that term in
ORS 125.005. + }
SECTION 2. ORS 127.005 is amended to read:
127.005. (1) When a principal designates another { + person
as + } an
{ - attorney-in-fact or - } agent by a power of attorney in
writing { + , + } and the { - writing - } { + power of
attorney + } does not contain words that otherwise { + delay
or + } limit the period of time of its effectiveness:
(a) The power of attorney { - shall remain - } { + becomes
effective when executed and remains + } in effect until the power
is revoked by the principal;
(b) The powers of the { - attorney-in-fact or - } agent are
unaffected by the passage of time; and
(c) The powers of the { - attorney-in-fact or agent shall
be - } { + agent are + } exercisable by the
{ - attorney-in-fact or - } agent on behalf of the principal
{ - notwithstanding the later disability or incompetence of the
principal at law - } { + even though the principal becomes
financially incapable + }.
{ + (2) The terms of a power of attorney may provide that the
power of attorney will become effective at a specified future
time, or will become effective upon the occurrence of a specified
future event or contingency such as the principal becoming
financially incapable. If a power of attorney becomes effective
upon the occurrence of a specified future event or contingency,
the power of attorney may designate a person or persons to
determine whether the specified event or contingency has
occurred, and the manner in which the determination must be made.
A person designated by a power of attorney to determine whether
the principal is financially incapable is the principal's
personal representative for the purposes of ORS 192.518 to
192.529 and the federal Health Insurance Portability and
Accountability Act privacy regulations, 45 C.F.R. parts 160 and
164.
(3) If a power of attorney becomes effective upon the principal
becoming financially incapable and either the power of attorney
does not designate a person or persons to make the determination
as to whether the principal is financially incapable or none of
the designated persons is willing or able to make the
determination, a determination that the principal is financially
incapable may be made by any physician. The physician's
determination must be made in writing. + }
{ - (2) - } { + (4) + } All acts done by { - the
attorney-in-fact or - } { + an + } agent under { - the - }
{ + a + } power of attorney during { - any period of
disability or incompetence of the principal at law shall - }
{ + a period in which the principal is financially
incapable + } have the same effect { + , + } and
{ - shall - } inure to the benefit of and bind the
principal { + , + } as though the principal were not
{ - disabled or incompetent - } { + financially incapable + }.
{ - (3) - } { + (5) + } If a conservator is appointed
{ - thereafter for the - } { + for a + } principal, the
{ - attorney-in-fact or agent, during the continuation of that
appointment, - } { + agent + } shall account to the
conservator { + , + } rather than to the principal { + , for so
long as the conservatorship lasts + }. The conservator has the
same power that the principal would have { - , but for the
disability or incompetence of the principal, - } to revoke,
suspend or terminate all or any part of the power of attorney
{ - or agency - } .
{ - (4) - } { + (6) + } This section does not apply to
powers of attorney for health care executed under ORS 127.505 to
127.660 and 127.995.
SECTION 3. ORS 127.015 is amended to read:
127.015. (1) The death of { - any - } { + a + } principal
who has executed a power of attorney in writing { + , or the
occurrence of any other event that would otherwise terminate the
authority of the agent, + } does not revoke or terminate the
{ - agency as to the attorney-in-fact or - } { + authority of
an + } agent who, without actual knowledge of the death of the
principal { + or other event + }, acts in good faith under the
power of attorney { - or agency - } . Any action so taken,
unless otherwise invalid or unenforceable, binds the principal
and heirs, devisees and personal representatives of the
principal.
(2) An affidavit { - , executed by the attorney-in-fact or
agent stating - } { + executed by an agent that states + } that
the
{ - attorney-in-fact or - } agent did not have, at the time of
doing an act under the power of attorney, actual knowledge of the
revocation or termination of the power of attorney by death { +
or other event + }, is, in the absence of fraud, conclusive proof
of the nonrevocation or nontermination of the power at that time.
If the exercise of the power requires execution and delivery of
any instrument { - which - } { + that + } is recordable, the
affidavit { - when authenticated for record is likewise
recordable - } { + may also be recorded + }.
(3) This section { - shall not be construed to - } { + does
not + } alter or affect any provision for revocation or
termination contained in the power of attorney.
SECTION 4. ORS 127.025 is amended to read:
127.025. A person may not refuse to recognize the authority of
an { - attorney-in-fact or - } agent under a power of attorney
based solely on the passage of time since the power of attorney
was executed.
SECTION 5. ORS 127.035 is amended to read:
127.035. Any person who reasonably relies in good faith on the
authority of an { - attorney-in-fact or - } agent under a
power of attorney is not liable to any other person based on that
reliance, and is not required to ensure that assets of the
principal that are paid or delivered to the
{ - attorney-in-fact or - } agent are properly applied. Any
person who has not received actual notice of revocation of a
power of attorney is not liable to any other person by reason of
relying on a power of attorney that has been revoked.
SECTION 6. ORS 127.045 is amended to read:
127.045. Unless otherwise provided in the power of attorney
document, an { - attorney-in-fact or - } agent must use the
property of the principal for the benefit of the principal.
SECTION 7. { + Section 1 of this 2009 Act and the amendments
to ORS 127.005, 127.015, 127.025, 127.035 and 127.045 by sections
2 to 6 of this 2009 Act apply to all powers of attorney, whether
executed before, on or after the effective date of this 2009
Act. + }
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