Chapter 774 Oregon Laws 1999

Session Law

AN ACT

HB 2759

Relating to fiduciaries in protective proceedings; creating new provisions; and repealing ORS 125.220.

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

SECTION 1. ORS 125.220 is repealed and section 2 of this 1999 Act is enacted in lieu thereof.

SECTION 2. (1) A fiduciary may employ a person in which the fiduciary has a pecuniary or financial interest only after disclosing the nature of the interest to the court if the person is employed for the purpose of providing direct services to the protected person or for the purpose of providing services to the fiduciary that directly affect the protected person. Before the person is employed, the fiduciary must provide the court with the following:

(a) A full and accurate disclosure of the pecuniary or financial interest of the fiduciary in the person.

(b) A full and accurate disclosure of the services to be performed by the person.

(c) A full and accurate disclosure of the anticipated costs to the estate in using the person to provide the services.

(2) In addition to the disclosures required by subsection (1) of this section, after making such inquiry as the court deems appropriate, the court may require additional disclosures for the purpose of assessing whether the pecuniary or financial interest of the fiduciary could compromise or otherwise affect decisions made by the fiduciary in carrying out the duties of the fiduciary.

(3) The continuing authority of a court over protective proceedings under ORS 125.025 includes the authority to supervise and inquire into:

(a) Whether the fiduciary by employing a person in which the fiduciary has a pecuniary or financial interest is acting reasonably to accomplish the purposes for which the fiduciary was appointed.

(b) Whether the employment of the person by the fiduciary is necessary to provide the services efficiently and effectively.

(c) The extent that the pecuniary or financial interest of the person employed by the fiduciary could compromise or otherwise affect the decisions made by the fiduciary in carrying out the duties of the fiduciary.

(4) The court shall not approve any fees or expenses requested by the fiduciary to the extent that the combined fees of the fiduciary and the person employed by the fiduciary under this section exceed the amount the court finds would have been appropriate for payment to the fiduciary if the fiduciary had provided the services alone.

(5) A fiduciary has a pecuniary or financial interest in another person for the purposes of this section if the fiduciary, or any person related to, employed by or affiliated with the fiduciary has:

(a) Any direct or indirect ownership interest in the person;

(b) A business association with the person; or

(c) Any financial involvement with the person.

(6) A fiduciary has a pecuniary or financial interest in another person for the purposes of this section if the fiduciary, or any person related to, employed by or affiliated with the fiduciary, receives remuneration or any other financial benefit from the person, without regard to whether that remuneration or benefit is directly tied to the services provided to the fiduciary or protected person.

(7) In addition to the grounds specified in subsections (5) and (6) of this section, a fiduciary has a pecuniary or financial interest in another person for the purposes of this section if the relationship between the fiduciary and other person is such that the relationship could compromise or otherwise affect decisions made by the fiduciary in carrying out the duties of the fiduciary.

(8) A fiduciary employs a person for the purposes of this section whether the person is engaged as an employee or as an independent contractor.

SECTION 3. Section 4 of this 1999 Act is added to and made a part of ORS chapter 125.

SECTION 4. (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 section 2 of this 1999 Act 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 (6), 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 (6) 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 5. Sections 2 and 4 of this 1999 Act do not apply to a financial institution, as defined in ORS 706.008, or trust company, as defined in ORS 706.008.

SECTION 6. (1) Section 2 of this 1999 Act applies to all protective proceedings, whether commenced before, on or after the effective date of this 1999 Act. Notwithstanding section 2 of this 1999 Act, any fiduciary who is employing a person in which the fiduciary has a pecuniary or financial interest on the effective date of this 1999 Act may continue to employ the person until the date on which the next annual report or account is due in the proceeding. The fiduciary may not continue to employ the person thereafter unless the fiduciary has made the disclosures required under section 2 of this 1999 Act.

(2) Section 4 of this 1999 Act applies only to petitions for appointment of fiduciaries filed on or after the effective date of this 1999 Act.

Approved by the Governor July 19, 1999

Filed in the office of Secretary of State July 19, 1999

Effective date October 23, 1999

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