Chapter 775 Oregon Laws 1999

Session Law

AN ACT

HB 2760

Relating to protective proceedings; creating new provisions; amending ORS 125.060, 125.070 and 125.080; and appropriating money.

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

HEARINGS IN PROTECTIVE PROCEEDINGS

SECTION 1. ORS 125.080 is amended to read:

125.080. (1) The court may require that a hearing be held on any petition or motion in a protective proceeding.

[(1)] (2) A hearing must be held on a petition or motion if an objection is filed to the petition or motion and the objection is not withdrawn before the time scheduled for the hearing.

[(2)] (3) The respondent or protected person may appear at a hearing in person or by counsel.

NOTICES IN PROTECTIVE PROCEEDINGS

SECTION 2. ORS 125.060 is amended to read:

125.060. (1) The notices required by this section must be given to all persons whose identities and addresses can be ascertained in the exercise of reasonable diligence by the person required to give the notice.

(2) Notice of the filing of a petition for the appointment of a fiduciary or entry of other protective order must be given by the petitioner to the following persons:

(a) The respondent, if the respondent has attained 14 years of age.

(b) The spouse, parents and adult children of the respondent.

(c) If the respondent does not have a spouse, parent or adult child, the person or persons most closely related to the respondent.

(d) Any person who is cohabiting with the respondent and who is interested in the affairs or welfare of the respondent.

(e) Any person who has been nominated as fiduciary or appointed to act as fiduciary for the respondent by a court of any state, any trustee for a trust established by or for the respondent, any person appointed as a health care representative under the provisions of ORS 127.505 to 127.660 and any person acting as attorney-in-fact for the respondent under a power of attorney.

(f) If the respondent is a minor, the person who has exercised principal responsibility for the care and custody of the respondent during the 60-day period before the filing of the petition.

(g) If the respondent is a minor and has no living parents, any person nominated to act as fiduciary for the minor in a will or other written instrument prepared by a parent of the minor.

(h) If the respondent is receiving moneys paid or payable by the United States through the Department of Veterans Affairs, a representative of the United States Department of Veterans Affairs regional office that has responsibility for the payments to the protected person.

(i) If the respondent is receiving moneys paid or payable by the State of Oregon through the Adult and Family Services Division of the Department of Human Resources, a representative of the Adult and Family Services Division.

(j) Any other person that the court requires.

(3) Notice of a motion for the termination of the protective proceedings, for removal of a fiduciary, for modification of the powers or authority of a fiduciary, for approval of a fiduciary's actions or for protective orders in addition to those sought in the petition must be given by the person making the motion to the following persons:

(a) The protected person, if the protected person has attained 14 years of age.

(b) Any person who has filed a request for notice in the proceedings.

(d) If the protected person is receiving moneys paid or payable by the United States through the Department of Veterans Affairs, a representative of the United States Department of Veterans Affairs regional office that has responsibility for the payments to the protected person.

(e) Any other person that the court requires.

(4) A request for notice under subsection (3)(b) of this section must be in writing and include the name, address and phone number of the person requesting notice. A copy of the request must be mailed by the person making the request to the petitioner or to the fiduciary if a fiduciary has been appointed. The original request must be filed with the court. The person filing the request must pay the fee specified by ORS 21.310 (5).

(5) A person who files a request for notice in the proceedings in the manner provided by subsection (4) of this section is entitled to receive notice from the fiduciary of any motion specified in subsection (3) of this section and of any other matter to which a person listed in subsection (2) of this section is entitled to receive notice under a specific provision of this chapter.

(6) If the State Office for Services to Children and Families is nominated as guardian for the purpose of consenting to the adoption of a minor, the notice provided for in this section must also be given to the minor's brothers, sisters, aunts, uncles and grandparents.

(7) In addition to the requirements of subsection (2) of this section, notice of the filing of a petition for the appointment of a guardian for a person who is alleged to be incapacitated must be given by the petitioner to the following persons:

(a) Any attorney who is representing the respondent in any capacity.

(b) If the respondent is a resident of a nursing home or residential facility, or if the person nominated to act as fiduciary intends to place the respondent in a nursing home or residential facility, the office of the Long Term Care Ombudsman.

(c) If the respondent is a resident of a mental health treatment facility or a residential facility for individuals with developmental disabilities, or if the person nominated to act as fiduciary intends to place the respondent in such a facility, the system designated to protect and advocate the rights of individuals with developmental disabilities as described in ORS 192.517 (1).

(8) In addition to the requirements of subsection (3) of this section, in a protective proceeding in which a guardian has been appointed, notice of the motions specified in subsection (3) of this section must be given by the person making the motion to the following persons:

(a) Any attorney who represented the protected person at any time during the protective proceeding.

(b) If the protected person is a resident of a nursing home or residential facility, or if the motion seeks authority to place the protected person in a nursing home or residential facility, the office of the Long Term Care Ombudsman.

(c) If the protected person is a resident of a mental health treatment facility or a residential facility for individuals with developmental disabilities, or if the motion seeks authority to place the protected person in such a facility, the system designated to protect and advocate the rights of individuals with developmental disabilities as described in ORS 192.517 (1).

[(7)] (9) A respondent or protected person may not waive the notice required under this section.

(10) The requirement that notice be served on an attorney for a respondent or protected person under subsection (7)(a) or (8)(a) of this section does not impose any responsibility on the attorney receiving the notice to represent the respondent or protected person in the protective proceeding.

SECTION 3. ORS 125.070 is amended to read:

125.070. (1) The notice required by ORS 125.060 must contain the following:

(a) The name, address and telephone number of the petitioner or the person making the motion, and the relationship of the petitioner or person making the motion to the respondent.

(b) A copy of the petition or motion.

(d) If a hearing has been set, the date, time and place of the hearing.

(2) In addition to the requirements of subsection (1) of this section, a notice of a petition that is served on a respondent who is a minor must contain the following:

(a) An explanation of the purpose and possible consequences of the petition.

(b) A statement that financial resources of the respondent may be used to pay court-approved expenditures of the proceeding.

(d) Information on any appointment of a visitor and the role of the visitor.

(e) A statement of the rights of the respondent as follows:

(A) The right to be represented by an attorney.

(B) The right to file a written or oral objection.

(D) The right to present evidence and cross-examine witnesses at any hearing.

(E) The right to request at any time that the power of the fiduciary be limited by the court.

(F) The right to request at any time the removal of the fiduciary or a modification of the protective order.

(3) In addition to the requirements of subsection (1) of this section, a notice of a petition for the appointment of a guardian for a respondent who is alleged to be incapacitated must contain a notice, printed in 14-point type, in substantially the following form:

___________________________________________________________________

NOTICE TO RESPONDENT

To: Respondent __________:

__________, Petitioner, who is your __________ (relationship to respondent), or that is an agency or business that provides guardianship services, has asked a court for the power to make decisions for you. The judge has been asked to give this person, agency or business the authority to make the following decisions for you (mark the appropriate spaces):

__ Medical and health care decisions, including decisions on which doctors you will see and what medications and treatments you will receive.

__ Residential decisions, including decisions on whether you can stay where you are currently living or be moved to another place.

__ Financial decisions, including decisions on paying your bills and decisions about how your money is spent.

__ Other decisions: ___________.

YOUR MONEY MAY BE USED IF THE JUDGE APPOINTS A GUARDIAN FOR YOU. YOU MAY BE ASKED TO PAY FOR THE TIME AND EXPENSES OF THE GUARDIAN, THE TIME AND EXPENSES OF THE PETITIONER'S ATTORNEY, THE TIME AND EXPENSES OF YOUR ATTORNEY, FILING FEES AND OTHER COSTS.

You have the right to object to the appointment of a guardian by saying you want to continue to make your own decisions. If you do not want another person, agency or business making decisions for you, you can object. If you do not want ______ (Proposed Guardian) to make these decisions for you, you can object. If you do not want your money to be used to pay for these expenses, you can object. If you do not want a guardian, do not want this particular person to act as your guardian or do not want your money used this way, the judge will hold a hearing. At the hearing, the judge will listen to what you and others have to say about whether you need someone else to make decisions for you, who that person should be and whether your money should be spent on these things.

YOU MUST TELL SOMEONE BEFORE __________ (DATE) IF YOU OPPOSE HAVING SOMEONE ELSE MAKE THESE DECISIONS FOR YOU.

You can tell the visitor if you don't want someone else making decisions for you when the visitor comes to talk with you about this matter.

You can write to the judge if you don't want someone else making decisions for you. The judge's address is: __________________________________.

You can call a lawyer if you don't want someone else making decisions for you. If you don't have a lawyer, you can ask the judge whether an attorney can be appointed for you or you can call this number ________ and ask to talk to a lawyer about this.

You can mark the blue sheet (Respondent's Objection) that is attached to this form if you do not want someone else to make your decisions for you. You can give the blue sheet to the visitor when the visitor comes to talk with you about this, you can show it to your attorney or you can mail it to the judge. ___________________________________________________________________

(4) In addition to the requirements of subsection (1) of this section, a notice of a petition that is served on a respondent who is alleged to be incapacitated must contain an objection form, printed on blue paper in 14-point type, in substantially the following form:

___________________________________________________________________

IN THE ______ COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF ______

) Case No. ____

(Case Title) )

) RESPONDENT'S

) OBJECTION

)

I object to the petition for the following reasons:

__ I do not want anyone else making any of my decisions for me.

__ I do not want ________ making any decisions for me.

__ I do not want ________ to make the following decisions for me:

_____________________________________________________________

(Signature of Respondent)

_____________________________________________________________

(Date)

GIVE TO THE VISITOR OR MAIL TO:

_____________________________________________________________

___________________________________________________________________

[(3)] (5) In addition to the requirements of subsection (1) of this section, a notice of a petition provided to a person other than the respondent must contain a statement as follows:

___________________________________________________________________

NOTICE: If you wish to receive copies of future filings in this case, you must inform the court and the person named as petitioner in this notice. You must inform the court by filing a request for notice and paying any applicable fee. The request for notice must be in writing, must clearly indicate that you wish to receive future filings in the proceedings and must contain your name, address and phone number. You must notify the person named as petitioner by mailing a copy of the request to the petitioner. Unless you take these steps, you will receive no further copies of the filings in the case.

___________________________________________________________________

MULTNOMAH COUNTY PROTECTIVE

PROCEEDING PILOT PROJECT

SECTION 4. Sections 5 to 13 of this 1999 Act are added to and made a part of ORS chapter 125.

SECTION 5. The provisions of sections 5 to 13 of this 1999 Act apply only to the circuit court for a county with a population of over 600,000.

SECTION 6. For the purposes of sections 5 to 13 of this 1999 Act, "participating court" means a court described in section 5 of this 1999 Act.

MANDATORY HEARINGS IN PROTECTIVE PROCEEDINGS

SECTION 7. (1) Upon the filing of a petition seeking appointment of a guardian in a participating court, the court shall review the petition and shall dismiss the proceeding without prejudice, or require that the petition be amended, if the court determines that the petition does not meet the requirements of ORS 125.055.

(2) Upon the filing of a petition seeking appointment of a guardian in a participating court, including the filing of a petition seeking the appointment of a temporary guardian under ORS 125.605, for a respondent alleged to be incapacitated, the court shall hold a hearing on the petition if a visitor is appointed under ORS 125.150 and the visitor reports to the court that:

(a) The respondent has indicated that the respondent objects to the petition;

(b) The respondent objects to the proposed guardian or prefers that another person act as guardian; or

(c) The visitor recommends appointment of counsel because that appointment is necessary to protect the interests of the respondent and the respondent does not plan to retain counsel or has not requested appointment of counsel by the court.

APPOINTMENT OF COUNSEL

SECTION 8. (1) If a petition is filed in a participating court seeking appointment of a guardian, including a temporary guardian under ORS 125.605, for a respondent who is alleged to be incapacitated, and the court requires that a hearing be held on the petition, or a hearing is otherwise required under the provisions of ORS 125.080, the court may appoint counsel for the respondent unless the respondent is already represented by counsel.

(2) Funds of the respondent may be used to pay reasonable compensation to counsel appointed under this section.

VISITORS

SECTION 9. (1) Not more than once each calendar year, a participating court shall charge a respondent or protected person for any visitor services provided during the year. The court shall order reimbursement to the state from the assets of the respondent or protected person for the cost of any interview or report unless the court finds that the assessment would impose a hardship on the respondent or protected person. If the respondent or protected person is receiving public assistance, there is a rebuttable presumption that charging a respondent or protected person for the services of a visitor would impose a hardship.

(2) The presiding judge for the participating court by court order shall establish fees for visitors conducting interviews and preparing reports.

(3) All amounts collected by the participating court under this section in reimbursement for visitor services shall be forwarded to the State Court Administrator and are continuously appropriated to the State Court Administrator. Funds appropriated to the State Court Administrator under this section may be used by the State Court Administrator only for the purpose of funding visitor services provided under sections 5 to 13 of this 1999 Act.

SECTION 10. (1) A presiding judge for a participating court shall by court order establish:

(a) Qualifications for persons serving as visitors for the court, in addition to those qualifications established by this section; and

(b) Standards and procedures to be used by visitors in the performance of their duties.

(2) A visitor serving for a participating court may be an employee of the court. The visitor may not have any personal interest in the respondent or protected person, or any pecuniary or financial interest in the proceedings, if those interests could compromise or otherwise affect the decisions of the visitor. A visitor may not receive compensation for services rendered as a fiduciary for two or more protected persons at the same time who are not related to the fiduciary.

(3) A visitor serving for a participating court must:

(a) Have the training and expertise adequate to allow the person to conduct the interviews required under sections 5 to 13 of this 1999 Act, to communicate with, assess and interact with respondents and protected persons, and to perform the other duties required of a visitor; and

(b) Demonstrate sufficient knowledge of the law so as to be able to inform a respondent or protected person of the nature and effect of a protective proceeding, to inform a respondent or protected person of the rights of the respondent or protected person in the protective proceeding, to answer the questions of a respondent or protected person and to inform fiduciaries concerning their powers and duties.

SECTION 11. (1) A visitor appointed by a participating court shall be provided by the court with a copy of the petition and other filings in the protective proceeding.

(2) A visitor appointed by a participating court shall interview the respondent or protected person personally at the place where the respondent or protected person is located.

(3) A visitor appointed by a participating court shall inform the respondent or protected person of the contents of the petition and of the nature, purpose and effect of the protective proceeding. The visitor shall inform the respondent or protected person, in the manner most likely to apprise the respondent or protected person, of the right of the respondent or protected person to oppose the proceeding, to attend the hearing, to be represented by counsel if the respondent or protected person so chooses and to have counsel appointed by the court if the person is unable to retain counsel.

(4) A visitor appointed by a participating court shall read and explain to the respondent the contents of any notice served on the respondent under ORS 125.070 (3).

(5) A visitor appointed by a participating court shall determine whether it appears that the respondent or protected person is able to attend the hearing and, if able to attend, whether the respondent or protected person is willing to attend the hearing.

(6) If a petition is filed seeking the appointment of a guardian for a respondent who is alleged to be incapacitated, a visitor appointed by a participating court shall conduct an investigation of the following matters:

(a) The inability of the respondent to provide for the needs of the respondent with respect to physical health, food, clothing and shelter;

(b) The location of the respondent's residence and the ability of the respondent to live in the residence while under guardianship;

(c) Alternatives to guardianship considered by the petitioner and reasons why those alternatives are not available;

(d) Health or social services provided to the respondent during the year preceding the filing of the petition, when the petitioner has information as to those services;

(e) The inability of the respondent to resist fraud or undue influence; and

(f) Whether the respondent's inability to provide for the needs of the respondent is an isolated incident of negligence or improvidence, or whether a pattern exists.

(7) If a petition is filed seeking appointment of a fiduciary, a visitor appointed by a participating court shall determine whether the respondent objects to the appointment of a fiduciary.

(8) If a petition is filed seeking the appointment of a fiduciary, a visitor appointed by a participating court shall determine whether the respondent objects to the proposed fiduciary or prefers another person to act as fiduciary.

(9) If a petition is filed seeking appointment of a conservator, a visitor appointed by a participating court shall investigate whether the respondent is financially incapable. The visitor shall interview the person nominated to act as conservator and shall interview the respondent at the place where the respondent is located.

(10) A visitor appointed by a participating court shall determine whether the respondent or protected person wishes to be represented by counsel and, if so, whether the respondent or protected person has retained counsel and, if not, the name of an attorney the respondent or protected person wishes to retain.

(11) If the respondent or protected person has not retained counsel, a visitor appointed by a participating court shall determine whether the respondent or protected person desires the court to appoint counsel.

(12) If the respondent or protected person does not plan to retain counsel and has not requested the appointment of counsel by the court, a visitor appointed by a participating court shall determine whether the appointment of counsel would help to resolve the matter and whether appointment of counsel is necessary to protect the interests of the respondent or protected person.

SECTION 12. The report of a visitor appointed by a participating court at the time a petition is filed requesting the appointment of a fiduciary shall include:

(1) A statement of information gathered by the visitor relating to the correctness of the allegations contained in the petition, the need for the appointment of a fiduciary and the qualifications of the nominated fiduciary.

(2) The name, address and telephone number of each person interviewed for the report, the date of the interview and the relationship of the person interviewed to the respondent.

(3) The recommendations of the visitor with regard to the suitability of the nominated fiduciary, any limitations that should be imposed on the fiduciary and the need for further evaluation.

(4) The recommendation of the visitor on any issue the court specifically asks the visitor to investigate regarding the propriety of appointing a fiduciary for the respondent.

(5) The visitor's determinations required by section 11 of this 1999 Act.

(6) Any express communication made by the respondent relating to the desires of the respondent regarding representation by counsel.

(7) Any express communication made by the respondent with respect to whether the respondent is willing to attend a hearing, wishes to contest the appointment of a fiduciary, objects to the proposed fiduciary or prefers that another person act as fiduciary.

SECTION 13. (1) Within one year after the appointment of a guardian by a participating court, the court shall review the appointment. The court shall thereafter review the appointment at least once every two years. If a visitor appointed by the court has recommended a review of the appointment more than once every two years, the court shall review the appointment at least as frequently as recommended by the visitor.

(2) A visitor appointed by a participating court shall make an unannounced visit to the protected person for the purpose of each review required by this section. The visitor shall inform the protected person that the protected person is subject to a guardianship and shall give the name of the guardian to the protected person. The visitor shall determine whether the protected person wishes to petition the court for termination of the guardianship, whether the protected person is still in need of the guardianship and whether the guardian is acting in the best interests of the protected person.

(3) The findings of a visitor appointed by a participating court, including the facts upon which the findings are based, shall be filed in writing with the court not less than 15 days after the date of a visit required under this section. A copy of the report must be mailed by the visitor to the guardian and to the attorneys of record for the protected person and for the guardian at the time the report is filed. In addition, a copy of the report must be mailed by the visitor to any person who has requested notice under ORS 125.060 (3)(b) at the time the report is filed.

(4) In conducting visits under this section, a visitor appointed by a participating court has the same duties and powers as specified in sections 11 and 12 of this 1999 Act.

APPLICABILITY

SECTION 14. (1) The amendments to ORS 125.060 by section 2 of this 1999 Act, relating to notice of the filing of a petition for the appointment of a fiduciary or entry of other protective order, apply only to petitions filed on or after the effective date of this 1999 Act.

(2) The amendments to ORS 125.060 by section 2 of this 1999 Act, relating to notice of a motion in a protective proceeding, apply only to motions in protective proceedings filed on or after the effective date of this 1999 Act.

(3) The amendments to ORS 125.070 by section 3 of this 1999 Act apply only to petitions in protective proceedings filed on or after the effective date of this 1999 Act.

(4) Sections 9 to 12 of this 1999 Act apply only to visitors appointed on or after the operative date of sections 9 to 12 of this 1999 Act.

(5) Sections 7, 8 and 13 of this 1999 Act apply only to guardianships commenced by the filing of a petition on or after the operative date of sections 7, 8 and 13 of this 1999 Act.

OPERATIVE DATES

SECTION 15. Sections 5 to 13 of this 1999 Act become operative on July 1, 2000.

REPEAL

SECTION 16. Sections 5 to 13 of this 1999 Act are repealed December 31, 2003.

UNIT CAPTIONS

SECTION 17. The unit captions used in this 1999 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment 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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