Chapter 305 Oregon Laws 1999

Session Law

AN ACT

SB 6

Relating to civil actions; creating new provisions; and amending ORS 124.100, 124.110 and 124.115.

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

SECTION 1. ORS 124.100 is amended to read:

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

(a) All economic damages, as defined in ORS 18.560, resulting from the physical or [fiduciary] financial abuse, or $500, whichever amount is greater.

(b) All noneconomic damages, as defined by ORS 18.560, resulting from the physical or [fiduciary] 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) An action may be brought under the provisions of this section only by a person who is 65 or more years of age, by an incapacitated person or by a guardian, conservator or attorney-in-fact for a person who is incapacitated or 65 or more years of age. 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) An action may only be brought under the provisions of this section for physical abuse described in ORS 124.105 or for [fiduciary] financial abuse described in ORS 124.110.

(4) An action may be brought under this section against a person for permitting another person to engage in physical or [fiduciary] 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 [fiduciary] financial abuse.

(5) 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 124.110 is amended to read:

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

(a) When a person[, including but not limited to a person who has the care or custody of an elderly or incapacitated person or who stands in a position of trust to an elderly or incapacitated person,] wrongfully takes or appropriates money or property of [the] an elderly or incapacitated person [for any wrongful use or for any purpose not in the due and lawful execution of the trust or duty of the person], without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the elderly or incapacitated person.

(b) When an elderly or incapacitated person requests that another person transfer to the elderly or incapacitated 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 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 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 person; and

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

[(2) For the purposes of this section, a person has the care and custody of an elderly or incapacitated person if the person voluntarily, by contract or by order of the court undertakes the responsibility for providing subsistence, medical or other care to an elderly or incapacitated person, provides financial advice to an elderly or incapacitated person or manages the finances or resources of an elderly or incapacitated person. Persons with the care and custody of an elderly or incapacitated person include those persons providing care including but not limited to medical care, custodial care, personal care, mental health services, rehabilitative services or any other kind of care provided that is required because of age or disability.]

[(3)] (2) A transfer of money or property that is made for the purpose of qualifying an elderly or incapacitated 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 [use] 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 3. ORS 124.115 is amended to read:

124.115. (1) Except as provided by subsection (2) of this section, an action under ORS 124.100 may not be brought against:

(a) Financial institutions, as defined by ORS 706.008;

(b) A health care facility, as defined in ORS 442.015;

(d) Broker-dealers licensed under ORS 59.005 to 59.370.

(2) An action may be brought under ORS 124.100 against a person listed in subsection (1) of this section if:

(a) The person is convicted of one of the crimes specified in ORS 124.105 (1); or

(b) The person engages in conduct constituting [fiduciary] financial abuse as described in ORS 124.110, and the person is convicted of a crime by reason of the conduct.

SECTION 4. The amendments to ORS 124.100, 124.110 and 124.115 by sections 1 to 3 of this 1999 Act apply only to causes of action arising on or after the effective date of this 1999 Act.

Approved by the Governor June 22, 1999

Filed in the office of Secretary of State June 22, 1999

Effective date October 23, 1999

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