Chapter 125 — Protective
Proceedings
2011 EDITION
PROTECTIVE PROCEEDINGS
PROTECTIVE PROCEEDINGS; POWERS OF
ATTORNEY; TRUSTS
GENERAL PROVISIONS
125.005 Definitions
125.010 Protective
proceedings
125.012 Petition
for protective order; disclosure of information; confidentiality; inspection;
visitor report
125.015 Jurisdiction
of protective proceedings; proceedings in other states
125.020 Venue
for protective proceedings
125.025 Authority
of the court in protective proceedings
125.030 Use
of limited judgment in protective proceedings
PROCEDURE IN PROTECTIVE PROCEEDINGS
125.050 Application
of ORCP and Oregon Evidence Code
125.055 Petitions
in protective proceedings
125.060 Who
must be given notice
125.065 Manner
of giving notice
125.070 Contents
of notice
125.075 Presentation
of objections
125.080 Hearing
125.085 Motions
after appointment of a fiduciary
125.090 Termination
of proceedings
125.095 Compensation
and expenses payable in protective proceedings
VISITORS
125.150 Appointment
of visitors
125.155 Visitor’s
report
125.160 Subsequent
appointment of visitor
125.165 Qualifications
and standards for visitors
125.170 Payment
and reimbursement for visitor services
FIDUCIARIES GENERALLY
125.200 Preferences
in appointing fiduciary
125.205 Persons
not qualified to act as fiduciary
125.210 Notice
to court of criminal conviction, revocation or cancellation of occupational
license or bankruptcy proceedings
125.215 Acceptance
of appointment as fiduciary; notice of proceedings to fiduciary
125.221 Conflicts
of interest
125.225 Removal
of fiduciary
125.230 Termination
of fiduciary’s authority; discharge of fiduciary
125.235 Liability
of fiduciary
125.240 Professional
fiduciaries
125.242 Exemptions
for financial institutions and trust companies
GUARDIANS
125.300 In
general
125.305 Order
of appointment
125.310 Letters
of guardianship
125.315 General
powers and duties of guardian
125.320 Limitations
on guardian
125.325 Guardian’s
report
125.330 Limitations
on guardian appointed for person committed to custody of Department of
Corrections
CONSERVATORS
(Appointment)
125.400 Order
of appointment
125.405 Letters
of conservatorship
(Bond)
125.410 Conservator’s
bond
125.415 Termination
of bond by surety
(Conservator’s Powers and Duties)
125.420 Power
of conservator over property of protected person
125.425 Powers
of conservator to pay expenses of protected person and dependents
125.430 Sale
of protected person’s residence
125.435 Power
of conservator to make gifts
125.440 Acts
conservator may perform only with court approval
125.445 Acts
authorized to be performed without prior court approval
125.450 Voidable
transactions
(Desires of Protected Person)
125.455 Power
of competent protected person over estate
125.460 Consideration
of estate plan of protected person
(Inventory of Property)
125.465 Discovery
of property; examination by conservator
125.470 Filing
of inventory required; supplemental inventory
(Accountings)
125.475 Conservator’s
accounting to court; contents
125.480 Approval
of accounting
(Liabilities)
125.485 Liability
of conservator
125.490 Status
of persons dealing with conservator
(Claims and Expenses)
125.495 Payment
of claims against estate or protected person
125.500 Enforcement
of claim against estate or protected person
125.505 Notice
of claim to conservator
125.510 Procedure
where claim disallowed
125.515 Effect
of presentation of claim on statute of limitations
125.520 Order
of payment of expenses and claims
(Termination of Proceedings)
125.525 Termination
of conservatorship
125.530 Powers
and duties of conservator on death of protected person
125.535 Disposition
of small estate
(Payment to Foreign Conservator)
125.540 Payment
of debt and delivery of property to foreign conservator
TEMPORARY FIDUCIARIES
125.600 In
general
125.605 Procedure
for appointment of temporary fiduciary
125.610 Report
of temporary fiduciary
OTHER PROTECTIVE ORDERS
125.650 Other
protective orders
PUBLIC GUARDIANS AND CONSERVATORS
125.700 Office
of public guardian and conservator; expenses; termination
Note Public
Guardian and Conservator Task Force--2011 c.525 §§1,2
125.705 Effect
of vacancy in office of public guardian and conservator
125.710 Powers
and duties of public guardian and conservator
125.715 Bond;
exoneration of surety
125.720 Deposit
of funds
125.725 Reimbursement
of public guardian and conservator’s expenses from estate of ward or protected
person
125.730 Fees
prohibited
UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE
PROCEEDINGS JURISDICTION ACT
(Article 1 - General Provisions)
125.800 Short
title
125.802 Definitions
125.805 International
application
125.807 Communication
between courts
125.810 Cooperation
between courts
125.812 Taking
testimony in another state
(Article 2 - Jurisdiction)
125.815 Definitions;
significant-connection factors
125.817 Exclusive
basis
125.820 Jurisdiction
125.822 Special
jurisdiction
125.825 Exclusive
and continuing jurisdiction
125.827 Appropriate
forum
125.830 Jurisdiction
declined by reason of conduct
125.832 Notice
of proceeding
125.835 Proceedings
in more than one state
(Article 3 - Transfer)
125.837 Transfer
of guardianship or conservatorship to another state
125.840 Accepting
guardianship or conservatorship transferred from another state
(Article 4 - Registration and
Recognition of Orders from Other States)
125.842 Registration
of guardianship orders; fee
125.845 Registration
of conservatorship orders; fee
125.847 Effect
of registration
(Article 5 - Miscellaneous Provisions)
125.850 Uniformity
of application and construction
125.852 Relation
to Electronic Signatures in Global and National Commerce Act
GENERAL PROVISIONS
125.005 Definitions.
As used in this chapter:
(1)
“Conservator” means a person appointed as a conservator under the provisions of
this chapter.
(2)
“Fiduciary” means a guardian or conservator appointed under the provisions of
this chapter or any other person appointed by a court to assume duties with
respect to a protected person under the provisions of this chapter.
(3)
“Financially incapable” means a condition in which a person is unable to manage
financial resources of the person effectively for reasons including, but not
limited to, mental illness, mental retardation, physical illness or disability,
chronic use of drugs or controlled substances, chronic intoxication,
confinement, detention by a foreign power or disappearance. “Manage financial
resources” means those actions necessary to obtain, administer and dispose of
real and personal property, intangible property, business property, benefits
and income.
(4)
“Guardian” means a person appointed as a guardian under the provisions of this
chapter.
(5)
“Incapacitated” means a condition in which a person’s ability to receive and
evaluate information effectively or to communicate decisions is impaired to
such an extent that the person presently lacks the capacity to meet the
essential requirements for the person’s physical health or safety. “Meeting the
essential requirements for physical health and safety” means those actions
necessary to provide the health care, food, shelter, clothing, personal hygiene
and other care without which serious physical injury or illness is likely to
occur.
(6)
“Minor” means any person who has not attained 18 years of age.
(7)
“Protected person” means a person for whom a protective order has been entered.
(8)
“Protective order” means an order of a court appointing a fiduciary or any
other order of the court entered for the purpose of protecting the person or
estate of a respondent or protected person.
(9)
“Protective proceeding” means a proceeding under this chapter.
(10)
“Respondent” means a person for whom entry of a protective order is sought in a
petition filed under ORS 125.055.
(11)
“Visitor” means a person appointed by the court under ORS 125.150 for the
purpose of interviewing and evaluating a respondent or protected person. [1995 c.664 §1; 2007 c.70 §31]
125.010 Protective proceedings.
(1) Any person who is interested in the affairs or welfare of a respondent may
file a petition for the appointment of a fiduciary or entry of other protective
order.
(2)
A protective proceeding is commenced by the filing of a petition in a court
with jurisdiction over protective proceedings.
(3)
The court may appoint any of the following fiduciaries in a protective
proceeding:
(a)
A guardian, with the powers and duties specified in this chapter.
(b)
A conservator, with the powers and duties specified in this chapter.
(c)
A temporary fiduciary, with the powers and duties specified in this chapter.
(d)
Any other fiduciary necessary to implement a protective order under ORS
125.650.
(4)
In addition to appointing a fiduciary, or in lieu of appointing a fiduciary,
the court may enter any other protective order in a protective proceeding in the
manner provided by ORS 125.650.
(5)
The court may make a determination described in ORS 127.550 with regard to an
advance directive in a protective proceeding in which a guardian or temporary
guardian has been appointed for the principal, or in which the petition seeks
the appointment of a guardian or a temporary guardian for the principal. [1995 c.664 §2; 2001 c.396 §1]
125.012 Petition for protective order;
disclosure of information; confidentiality; inspection; visitor report.
(1) As used in this section:
(a)
“Party” means:
(A)
A person who is the subject of a petition for a protective order.
(B)
A person who has petitioned for appointment, or who has been appointed, as a
fiduciary for a protected person under this chapter.
(C)
A person, not otherwise a party under this paragraph, who has filed objections
as allowed under this chapter.
(D)
A visitor appointed by the court in a proceeding under this chapter.
(E)
Any other person who has filed a petition or motion in a proceeding under this
chapter.
(b)
“Protected health information” has the meaning given that term in ORS 192.556.
(c)
“Protective services” has the meaning given that term in ORS 410.040.
(2)
The Department of Human Services or the Oregon Health Authority, for the
purpose of providing protective services, may petition for a protective order
under this chapter. When the department or authority, or a petitioning attorney
with whom the department or authority has contracted, petitions for a
protective order under this section, the department or authority shall disclose
to the court or to the petitioning attorney only a minimum amount of
information about the person who is the subject of the petition, including
protected health, mental health, financial, substantiated abuse and legal information,
as is reasonably necessary to prevent or lessen a serious and imminent threat
to the health or safety of the person who is the subject of the petition or
protective order.
(3)
When a petition for a protective order is filed under this chapter by a person
other than the Department of Human Services, the Oregon Health Authority or an
attorney with whom the department or authority has contracted, or when a
protective order has already been entered, the department or authority may
disclose to a court protected health, mental health, financial, substantiated
abuse and legal information about the person who is the subject of the petition
or protective order, or about a person who has petitioned for appointment, or
who has been appointed, as a fiduciary for a protected person under this
chapter. The department or authority may disclose such information without
authorization from the person or fiduciary if the disclosure is made in good
faith and with the belief that the disclosure is the minimum amount of
information about the person or fiduciary as is reasonably necessary to prevent
or lessen a serious and imminent threat to the health or safety of the person
who is the subject of the petition or protective order.
(4)(a)
All confidential and protected health, mental health, financial, substantiated
abuse and legal information disclosed by the Department of Human Services, the
Oregon Health Authority or an attorney with whom the department or authority
has contracted under this section must remain confidential.
(b)
Information disclosed under this section must be identified and marked by the
entity or person making the disclosure as confidential and protected
information that is subject to the requirements of this subsection.
(c)
Information disclosed under this section is subject to inspection only by the
parties to the proceedings and their attorneys as provided in subsection (5) of
this section. Information disclosed under this section is not subject to
inspection by members of the public except pursuant to a court order entered
after a showing of good cause. Good cause under this paragraph includes the
need for inspection of the information by an attorney considering
representation of the person who is the subject of the petition or protective
order, or of a person who has petitioned for appointment, or who has been
appointed, as a fiduciary for a protected person under this chapter.
(d)
Notwithstanding ORS 125.155 (4), to the extent that the report of a visitor
appointed by the court under ORS 125.150 contains information that is subject
to the requirements of this subsection, the report in its entirety shall be
considered subject to the requirements of this subsection and may be disclosed
only as provided in paragraph (c) of this subsection.
(5)
The court may enter an order allowing inspection of information subject to
disclosure under this section upon the filing of a written request for
inspection and the payment of any fees or costs charged to copy the
information.
(6)
Nothing in this section is intended to limit the application of ORS 125.050 to
the use of information disclosed under this section in proceedings under this
chapter.
(7)
Information may be disclosed under this section only for the purpose of
providing protective services. [2009 c.512 §2; 2011 c.229 §1]
125.015 Jurisdiction of protective
proceedings; proceedings in other states. (1)
The probate courts and commissioners provided for in ORS chapter 111 have
exclusive jurisdiction of protective proceedings.
(2)
Subject to ORS 125.800 to 125.852 for adults as defined in ORS 125.802, if an
Oregon court exercising probate jurisdiction becomes aware that a protective
proceeding has been commenced in another state, the Oregon court shall notify
the court in the other state of the proceedings in this state. After
consultation with the court of the other state, the Oregon court shall
determine whether it is in the best interests of the respondent or protected
person for the Oregon court to continue to exercise jurisdiction in the matter
or whether it would be in the best interests of the respondent or protected
person to terminate the Oregon proceedings and transfer the matter to the other
court. [1995 c.664 §3; 2009 c.179
§23]
125.020 Venue for protective proceedings.
(1) Except as provided in this section, a protective proceeding must be
commenced in the county where the respondent resides or is present.
(2)
If the respondent resides in an institution by reason of an order of a court,
the proceeding may be commenced in the county where that court sits.
(3)
If the respondent does not reside in this state and is not present in this
state, a conservatorship proceeding may be commenced in any county where
property of the respondent is located.
(4)
The court may transfer a protective proceeding at any time to another court if
the transfer is in the best interests of the respondent or protected person. [1995
c.664 §4]
125.025 Authority of the court in
protective proceedings. (1) Subject to ORS 125.800 to
125.852 for adults as defined in ORS 125.802, a court having jurisdiction over
a protective proceeding shall exercise continuing authority over the
proceeding. Subject to the provisions of ORS 125.800 to 125.852 and this
chapter, the court may act upon the petition or motion of any person or upon
its own authority at any time and in any manner it deems appropriate to
determine the condition and welfare of the respondent or protected person and
to inquire into the proper performance of the duties of a fiduciary appointed
under the provisions of this chapter.
(2)
A court having jurisdiction over a protective proceeding in which the
respondent or protected person is a minor shall consider and apply all relevant
provisions of the Indian Child Welfare Act codified at 25 U.S.C.
sections 1901 et seq.
(3)
A court having jurisdiction over a protective proceeding may:
(a)
Compel the attendance of any person, including respondents, protected persons,
fiduciaries and any other person who may have knowledge about the person or
estate of a respondent or protected person. The court may require those persons
to respond to inquiries and produce documents that are subject to discovery
under ORCP 36.
(b)
Appoint counsel for a respondent or protected person.
(c)
Appoint investigators, visitors and experts to aid the court in the court’s
investigation.
(d)
Exercise jurisdiction over any transaction entered into by a fiduciary to
determine if a conflict of interest existed and enter an appropriate judgment
with respect to the transaction.
(e)
Surcharge a surety for any loss caused by failure of a fiduciary to perform a
fiduciary duty or any other duty imposed by this chapter, including a surcharge
for attorney fees incurred by a respondent or protected person by reason of the
failure.
(f)
Require immediate delivery of a protected person or property of the protected
person, including records, accounts and documents relating to that property, to
the court or to a place it designates.
(g)
Require the fiduciary to produce any and all records that might provide
information about the treatment or condition of the protected person or
property of the protected person.
(h)
Remove a fiduciary whenever that removal is in the best interests of the
protected person.
(i) Appoint a successor fiduciary when a fiduciary has died,
resigned or been removed.
(j)
Require a respondent or protected person to submit to a physical or mental
examination pursuant to ORCP 44.
(k)
Make provisions for parenting time or visitation or order support for any minor
who is a respondent or protected person in a protective proceeding.
(L)
Impose any conditions and limitations upon the fiduciary that the court
considers appropriate, including limitations on the duration of the
appointment. Any conditions or limitations imposed on the fiduciary must be
reflected in the letters of appointment.
(4)
When a person files a petition or motion for a support order under subsection
(3)(k) of this section:
(a)
The person shall state in the petition or motion, to the extent known:
(A)
Whether there is pending in this state or any other jurisdiction any type of
support proceeding involving the minor, including a proceeding brought under
ORS 25.287, 107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165,
416.400 to 416.465, 419B.400 or 419C.590
or ORS chapter 110; and
(B)
Whether there exists in this state or any other jurisdiction a support order,
as defined in ORS 110.303, involving the minor.
(b)
The person shall include with the petition or motion a certificate regarding
any pending support proceeding and any existing support order. The person shall
use a certificate that is in a form established by court rule and include
information required by court rule and paragraph (a) of this subsection.
(5)
When the court acts upon its own authority to order support under subsection
(3)(k) of this section, at least 21 days before the hearing the court shall
notify the Administrator of the Division of Child Support of the Department of
Justice, or the branch office providing support services to the county where the
hearing will be held, of the hearing. Before the hearing the administrator
shall inform the court, to the extent known:
(a)
Whether there is pending in this state or any other jurisdiction any type of
support proceeding involving the minor, including a proceeding brought under
ORS 25.287, 107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165,
416.400 to 416.465, 419B.400 or 419C.590
or ORS chapter 110; and
(b)
Whether there exists in this state or any other jurisdiction a support order,
as defined in ORS 110.303, involving the minor.
(6)
The Judicial Department and the Department of Justice may enter into an
agreement regarding how the courts give the notice required under subsection
(5) of this section to the Department of Justice and how the Department of
Justice gives the information described in subsection (5)(a) and (b) to the
courts.
(7)
If the court finds that a conservator should be appointed, the court may
exercise all the powers over the estate and affairs of the protected person
that the protected person could exercise if present and not under disability,
except the power to make a will. The court shall exercise those powers for the
benefit of the protected person and members of the household of the protected
person.
(8)
The powers of the court in protective proceedings may be exercised by the court
directly or through a fiduciary. [1995 c.664 §5; 1997
c.707 §27; 2003 c.116 §11;
2009 c.179 §24]
125.030 Use of limited judgment in
protective proceedings. (1) The appointment of a fiduciary
in a protective proceeding shall be made by limited judgment.
(2)
The court in a protective proceeding may enter a limited judgment only for the
following decisions of the court:
(a)
A decision on an objection to an accounting.
(b)
A decision on placement of a protected person.
(c)
A decision on the sale of the residence of a protected person.
(d)
A decision on a payment that is authorized or subject to approval under ORS
125.095.
(e)
Such decisions of the court as may be specified by rules or orders of the Chief
Justice of the Supreme Court under ORS 18.028.
(3)
A court may enter a limited judgment under subsection (2) of this section only
if the court determines that there is no just reason for delay. The judgment
document need not reflect the court’s determination that there is no just
reason for delay. [2005 c.568 §36; 2009 c.50 §2]
PROCEDURE IN PROTECTIVE PROCEEDINGS
125.050 Application of ORCP
and Oregon Evidence Code. Except as otherwise provided by
this chapter, the Oregon Rules of Civil Procedure and the Oregon Evidence Code
apply in protective proceedings. [1995 c.664 §6]
125.055 Petitions in protective
proceedings. (1) A petition in a protective
proceeding that seeks the appointment of a fiduciary must designate the type of
fiduciary that the petitioner seeks to have appointed. If the petition does not
request the appointment of a fiduciary, or if the petition requests both the
appointment of a fiduciary and some other protective order, the petition must
contain a statement of the nature of the protective order requested. The
caption of the petition must reflect the type of fiduciary whose appointment is
requested or, if the appointment of a fiduciary is not requested, the nature of
the protective order requested. An original and duplicate copy of the petition
must be filed with the court.
(2)
A petition in a protective proceeding must contain the following information to
the extent that the petitioner is aware of the information or to the extent
that the petitioner is able to acquire the information with reasonable effort:
(a)
The name, age, residence address and current location of the respondent.
(b)
The interest of the petitioner.
(c)
The name, age and address of the petitioner and any person nominated as
fiduciary in the petition and the relationship of the nominated person to the
respondent.
(d)
A statement as to whether the person nominated to be fiduciary has been
convicted of a crime, has filed for or received protection under the bankruptcy
laws or has had a license revoked or canceled that was required by the laws of
any state for the practice of a profession or occupation. If the nominated
person has been convicted of a crime, filed for or received protection under
bankruptcy laws or had a professional or occupational license revoked or
canceled, the petition shall contain a statement of the circumstances
surrounding those events. If the person nominated is not the petitioner, the
statement must indicate that the person nominated is willing and able to serve.
(e)
The name and address of any fiduciary that has been appointed 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)
The name and address of the respondent’s treating physician and any other
person who is providing care to the respondent.
(g)
The factual information that supports the request for the appointment of a
fiduciary or entry of other protective order, and the names and addresses of
all persons who have information that would support a finding that an adult
respondent is incapacitated or financially incapable.
(h)
A statement that indicates whether the nominated person intends to place the
respondent in a mental health treatment facility, a nursing home or other
residential facility.
(i) A general description of the estate of the respondent
and the respondent’s sources of income and the amount of that income.
(j)
A statement indicating whether the person nominated as fiduciary is a public or
private agency or organization that provides services to the respondent or an
employee of a public or private agency or organization that provides services
to the respondent.
(3)
In addition to the requirements of subsection (2) of this section, if a
petition seeks appointment of a guardian, the petition must contain a statement
on whether the guardian will exercise any control over the estate of the
respondent. If the guardian will exercise any control over the estate of the
respondent, the petition must contain a statement of the monthly income of the
respondent, the sources of the respondent’s income, and the amount of any moneys
that the guardian will be holding for the respondent at the time of the
appointment. If the petition seeks the appointment of a guardian for an adult
respondent or of a temporary fiduciary who will exercise the powers of a
guardian for an adult respondent, the petition must contain a statement
notifying the court that a visitor must be appointed.
(4)
In addition to the requirements of subsection (2) of this section, if a
petition seeks appointment of a conservator or a temporary fiduciary who will
exercise the powers of a conservator or if a petition seeks a protective order
relating to the estate of the respondent, the petition must contain the
petitioner’s estimate of the value of the estate.
(5)
A petitioner may join parties in a petition in the manner provided by ORCP 28 for the joining of defendants.
(6)
The court shall review a petition seeking appointment of a guardian 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 this section. [1995 c.664 §7; 1997 c.717 §4; 2003 c.227 §3]
125.060 Who must be given notice.
(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
for public assistance provided under ORS chapter 411 by the State of Oregon
through the Department of Human Services, a representative of the department.
(j)
If the respondent is receiving moneys paid or payable for medical assistance
provided under ORS chapter 414 by the State of Oregon through the Oregon Health
Authority, a representative of the authority.
(k)
If the respondent is committed to the legal and physical custody of the
Department of Corrections, the Attorney General and the superintendent or other
officer in charge of the facility in which the respondent is confined.
(L)
If the respondent is a foreign national, the consulate for the respondent’s
country.
(m)
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.
(c)
Except for a fiduciary who is making a motion, any fiduciary who has been
appointed for the protected person.
(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)
If the protected person is committed to the legal and physical custody of the
Department of Corrections, the Attorney General and the superintendent or other
officer in charge of the facility in which the protected person is confined.
(f)
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 21.135.
(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 Department of Human Services 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 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 described in ORS 192.517 (1).
(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. [1995 c.664 §8; 1997 c.717 §5; 1999 c.122 §3; 1999 c.775 §2; 2001 c.900 §22; 2003 c.143 §3; 2005 c.22 §98; 2005 c.381 §22; 2005 c.498 §2; 2009 c.595 §85; 2011 c.595 §127]
Note:
Section 128, chapter 595, Oregon Laws 2011, provides:
Sec. 128.
The amendments to ORS 125.060 by section 127 of this 2011 Act apply only to
proceedings commenced on or after October 1, 2011. [2011 c.595
§128]
125.065 Manner of giving notice.
(1) Notice of the filing of a petition must be personally served on any
respondent who has attained 14 years of age. Notice of a petition must be
personally served on the parents of a respondent if the petition is based on
the fact that the respondent is a minor. The notice may not be served on the
respondent by the visitor appointed by the court. The notice shall be written
in language reasonably understandable by the respondent. The notice must be
printed in type size equal to at least 12-point type.
(2)
Except as provided in subsection (1) of this section, the notices required
under ORS 125.060 may be mailed to the last-known address of the person. If the
address or identity of any person is not known and cannot be ascertained with
reasonable diligence, notice of the filing of a petition may be given by
publishing at least once a week for three consecutive weeks a copy of the
notice in a newspaper having general circulation in the county where the
hearing is to be held. The last publication of the notice must be at least 15
days before the final date for the filing of objections.
(3)
The date of personal service or mailing under this section must be at least 15
days before the final date for the filing of objections to the petition or
motion. If the proceedings are subject to the Uniform Child Custody
Jurisdiction and Enforcement Act provided for in ORS 109.701 to 109.834, the
date of service or mailing must be at least 21 days before the final date for
the filing of objections to the petition or motion.
(4)
The court for good cause shown may provide for a different method or time of
giving notice under this section.
(5)
Proof of the giving of notice must be filed in the proceeding before the court
enters any order on a petition or motion. [1995 c.664
§9; 1999 c.649 §53]
125.070 Contents of notice.
(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.
(c)
A statement on where objections may be made or filed and the deadline for
making or filing those objections.
(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 for the appointment of a conservator for a respondent who is alleged
to be financially incapable or a notice of a petition for the appointment of a
guardian or conservator for a respondent who is a minor that is served on the
respondent 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.
(c)
Information regarding any free or low-cost legal services and other relevant
services available in the area.
(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.
(C)
The right to request a hearing.
(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 judge 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
MUST TELL SOMEONE AT THE COURTHOUSE BEFORE ___________ (DATE) IF YOU
OPPOSE HAVING SOMEONE ELSE MAKE THESE DECISIONS FOR YOU.
OBJECTIONS:
You
can write to the judge if you do not want someone else making decisions for
you. The judge’s address is:_________.
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.
You
can object any time after the judge has appointed a guardian. You can ask the
judge at any time to limit the kinds of decisions that the guardian makes for
you so that you can make more decisions for yourself. You can also ask the
judge at any time to end the guardianship.
THE
HEARING:
The
judge will hold a hearing 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. 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 can have your witnesses
tell the judge why you do not need a guardian and you can bring in records and
other information about why you think that you do not need a guardian. You can
ask your witnesses questions and other witnesses questions.
THE
COURT VISITOR:
The
judge will appoint someone to investigate whether you need a guardian to make
decisions for you. This person is called a “visitor.” The visitor works for the
judge and does not work for the person who filed the petition asking the judge
to appoint a guardian for you, for you or for any other party. The visitor will
come and talk to you about the guardianship process, about whether you think
that you need a guardian and about who you would want to be your guardian if
the judge decides that you need a guardian. The visitor will talk to other
people who have information about whether you need a guardian. The visitor will
make a report to the judge about whether what the petition says is true,
whether the visitor thinks that you need a guardian, whether the person
proposed as your guardian is able and willing to be your guardian, who would be
the best guardian for you and what decisions the guardian should make for you.
If there is a hearing about whether to appoint a guardian for you, the visitor
will be in court to testify.
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.
LEGAL
SERVICES:
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 a lawyer can be
appointed for you.
There
may be free or low-cost legal services or other relevant services in your local
area that may be helpful to you in the guardianship proceeding. For information
about these services, you can call the following telephone numbers ___________
and ask to talk to people who can help you find legal services or other types
of services.
OBJECTION
FORM:
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:
_____________________
______________________________________________________________________________
(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 judge and the person named as
petitioner in this notice. You must inform the judge 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.
______________________________________________________________________________
[1995
c.664 §10; 1999 c.775 §3;
2001 c.416 §1]
125.075
Presentation of objections. (1) Any person who is interested
in the affairs or welfare of a respondent or protected person may present
objections to a petition or to a motion in a protective proceeding, including
but not limited to:
(a) Any person entitled to receive notice
under ORS 125.060.
(b) Any stepparent or stepchild of the
respondent or protected person.
(c) Any other person the court may allow.
(2) Objections to a petition may be either
written or oral. Objections to a motion must be in writing. Objections to a
petition or to a motion must be made or filed with the court within 15 days
after notice of the petition or motion is served or mailed in the manner
prescribed by ORS 125.065. The court shall designate a place where oral
objections may be made. If a person appears within the time allowed at the
place designated by the court for the purpose of making oral objections, the
clerk of the court shall provide a means of reducing the oral objections to a
signed writing for the purpose of filing the objection.
(3) If objections are presented by any of
the persons listed in subsection (1) of this section, the court shall schedule
a hearing on the objections. The petitioner or person making the motion shall
give notice to all persons entitled to notice under ORS 125.060 (3) of the
date, time and place of the scheduled hearing at least 15 days before the date
set for hearing. Notice shall be given in the manner prescribed by ORS 125.065.
(4) Notwithstanding ORS 21.170, the court
shall not charge or collect any fee from a respondent or protected person for
the filing of objections under the provisions of this section or for the filing
of any motion by a respondent or protected person.
(5) The court for good cause shown may
provide for a different method or time of giving notice under subsection (3) of
this section. [1995 c.664 §11; 2011 c.595 §129]
125.080
Hearing. (1) The court may require that a hearing
be held on any petition or motion in a protective proceeding.
(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.
(3) The respondent or protected person may
appear at a hearing in person or by counsel.
(4) If the court requires that a hearing
be held on a petition, or a hearing is otherwise required under this section,
the court may appoint counsel for the respondent unless the respondent is
already represented by counsel. [1995 c.664 §12; 1999
c.775 §1; 2003 c.227 §4]
125.085
Motions after appointment of a fiduciary. (1)
The court may remove a fiduciary on the motion of any person who is entitled to
file an objection to a petition under the provisions of ORS 125.075, or upon
the court’s own motion.
(2) On motion of the fiduciary, the court
may accept the resignation of the fiduciary and make any other order that may
be appropriate, including appointment of a successor fiduciary.
(3) Upon motion by any person who is
entitled to file an objection to a petition under the provisions of ORS
125.075, or upon the court’s own motion, the court may order a modification of
the powers or authority of the fiduciary or termination of the protective
proceedings. [1995 c.664 §13]
125.090
Termination of proceedings. (1) A protected person is
entitled to the same rights and procedures provided in the original proceedings
when a motion to terminate the protective proceeding is filed and a fiduciary
opposes the motion. The fiduciary has the burden of proving by clear and
convincing evidence that a protected person continues to be incapacitated or
financially incapable if a motion to terminate a protective proceeding is filed
and the fiduciary opposes the motion. A visitor must be appointed if a motion
for termination of a guardianship is filed and objections are filed to the
motion. A visitor may be appointed if a motion for termination of a
conservatorship is filed.
(2) The court may terminate protective
proceedings upon motion after determining any of the following:
(a) The appointment of a fiduciary or
other protective order was made because the protected person was a minor, and
the protected person has attained the age of majority.
(b) The appointment of a fiduciary or
other protective order was made because the protected person was incapacitated,
and the protected person is no longer incapacitated.
(c) The appointment of a fiduciary or
other protective order was made because the protected person was financially
incapable, and the protected person is no longer financially incapable or the
conditions of ORS 125.535 have been met.
(d) The protected person has died.
(e) The best interests of the protected
person would be served by termination of the proceedings.
(3) The court shall terminate a protective
proceeding by entry of a general judgment. [1995 c.664
§14; 2005 c.568 §37]
125.095
Compensation and expenses payable in protective proceedings.
(1) Funds of the protected person may be used to pay reasonable compensation to
any visitor, attorney, physician, fiduciary or temporary fiduciary for services
rendered in the protective proceeding or for services rendered on behalf of the
fiduciary or protected person.
(2) Prior court approval is required
before the payment of the fees of any visitor or physician if the fees are
incurred for services relating to proceedings arising out of the filing of an
objection to a petition or motion.
(3) Prior court approval is required
before payment of compensation to a fiduciary or to the attorneys for a
fiduciary, except that prior court approval is not required before payment of
compensation to a conservator if the conservator is a trust company that has
complied with ORS 709.030, or if the conservator is the Department of Veterans’
Affairs. [1995 c.664 §15; 1997 c.631
§409; 2005 c.625 §65]
VISITORS
125.150
Appointment of visitors. (1) The court shall appoint a
visitor upon the filing of a petition in a protective proceeding that seeks the
appointment of a guardian for an adult respondent or temporary fiduciary who
will exercise the powers of a guardian for an adult respondent. The court may
appoint a visitor in any other protective proceeding or in a proceeding under
ORS 109.329.
(2) A visitor may be an officer, employee
or special appointee of the court. The person appointed may not have any
personal interest in the proceedings. The person appointed must have training
or expertise adequate to allow the person to appropriately evaluate the functional
capacity and needs of a respondent or protected person, or each petitioner and
the person to be adopted under ORS 109.329. The court shall provide a copy of
the petition and other filings in the proceedings that may be of assistance to
the visitor.
(3) A visitor appointed by the court under
this section shall interview a person nominated or appointed as fiduciary and
the respondent or protected person, or each petitioner and the person to be
adopted under ORS 109.329, personally at the place where the respondent or
protected person, or each petitioner or the person to be adopted under ORS
109.329, is located.
(4) Subject to any law relating to
confidentiality, the visitor may interview any physician or psychologist who
has examined the respondent or protected person, or each petitioner under ORS
109.329, the person or officer of the institution having the care, custody or
control of the respondent or protected person, or each petitioner under ORS
109.329, and any other person who may have relevant information.
(5) If requested by a visitor under
subsection (4) of this section, a physician or psychologist who has examined
the respondent or protected person, or each petitioner under ORS 109.329, may,
with patient authorization or in response to a court order in accordance with ORCP 44 or a subpoena under ORCP
55, provide any relevant information the physician or psychologist has
regarding the respondent or protected person, or each petitioner under ORS
109.329.
(6) A visitor shall determine whether it
appears that the respondent or protected person, or each petitioner or the
person to be adopted under ORS 109.329, is able to attend the hearing and, if
able to attend, whether the respondent or protected person, or each petitioner
or the person to be adopted under ORS 109.329, is willing to attend the
hearing.
(7) If a petition is filed seeking the
appointment of a guardian for an adult respondent, a visitor shall investigate
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.
(8) If a petition is filed seeking the
appointment of a fiduciary, a visitor shall determine whether the respondent
objects to:
(a) The appointment of a fiduciary; and
(b) The nominated fiduciary or prefers
another person to act as fiduciary.
(9) If a petition is filed seeking the
appointment of a conservator in addition to the appointment of a guardian, a
visitor shall investigate whether the respondent is financially incapable. The
visitor shall interview the person nominated to act as conservator and shall
interview the respondent personally at the place where the respondent is
located.
(10) A visitor shall determine whether the
respondent or protected person, or each petitioner or the person to be adopted
under ORS 109.329, wishes to be represented by counsel and, if so, whether the
respondent or protected person, or each petitioner or the person to be adopted
under ORS 109.329, has retained counsel and, if not, the name of an attorney
the respondent or protected person, or each petitioner or the person to be
adopted under ORS 109.329, wishes to retain.
(11) If the respondent or protected
person, or each petitioner or the person to be adopted under ORS 109.329, has
not retained counsel, a visitor shall determine whether the respondent or
protected person, or each petitioner or the person to be adopted under ORS
109.329, desires the court to appoint counsel.
(12) If the respondent or protected
person, or each petitioner or the person to be adopted under ORS 109.329, does
not plan to retain counsel and has not requested the appointment of counsel by
the court, a visitor 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, or each petitioner
or the person to be adopted under ORS 109.329. [1995 c.664
§16; 2003 c.89 §1; 2003 c.227
§5; 2003 c.579 §§3,4]
125.155
Visitor’s report. (1) A visitor shall file a
report in writing with the court within 15 days after the visitor is appointed.
The court may grant additional time for filing the visitor’s report upon a
showing of necessity and good cause.
(2) The report of the visitor appointed at
the time a petition is filed requesting the appointment of a fiduciary must
include the following:
(a) A statement of information gathered by
the visitor relating to the correctness of the allegations contained in the
petition, whether the appointment of a fiduciary is necessary and whether the
nominated fiduciary is qualified and willing to serve.
(b) 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.
(c) 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.
(d) 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.
(e) The visitor’s determinations required
by ORS 125.150.
(f) Any express communication made by the
respondent relating to the desires of the respondent regarding representation
by counsel.
(g) 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
nominated fiduciary or prefers another person act as fiduciary.
(3) The State Court Administrator may
prescribe one or more forms to be used by visitors for filing their reports.
(4) As soon as possible after a report is
filed with the court under the provisions of this section, the clerk of the
court shall mail copies of the report to any person who has filed with the
court a specific request for a copy of the report. A request made under ORS
125.060 (3)(b) does not meet the requirements of this subsection unless the
request specifically requests a copy of the visitor’s report.
(5) The visitor must be present at the
hearing on any objections to the appointment of a fiduciary. A visitor is
entitled to reasonable compensation for attendance at the hearing. The court
shall notify the visitor of the time and place of any hearing on objections to
the appointment. [1995 c.664 §17; 2003 c.227 §6]
125.160
Subsequent appointment of visitor. At any time
after the appointment of a fiduciary, the court may appoint a visitor. The
court may require the visitor to perform any duty the visitor could have
performed if appointed at the time the fiduciary was appointed, including
interviewing relevant persons, examining relevant records, reporting in writing
to the court and being present at any hearing. [1995 c.664
§18]
125.165
Qualifications and standards for visitors. (1) A
presiding judge 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 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 must:
(a) Have the training and expertise
adequate to allow the person to conduct the interviews and make the
recommendations required under ORS 125.150 and 125.155, 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. [1999 c.775 §10; 2003 c.227 §2]
125.170
Payment and reimbursement for visitor services.
(1) Not more than once each calendar year, the court may charge a respondent or
protected person for any visitor services provided during the year. The court
may 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 by court order
shall establish fees for visitors conducting interviews and preparing reports.
(3) All amounts collected 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 for the purpose of funding
visitor services provided under ORS 125.150 and 125.155. [1999 c.775 §9; 2003 c.227 §1]
FIDUCIARIES
GENERALLY
125.200
Preferences in appointing fiduciary. The court
shall appoint the most suitable person who is willing to serve as fiduciary
after giving consideration to the specific circumstances of the respondent, any
stated desire of the respondent, the relationship by blood or marriage of the
person nominated to be fiduciary to the respondent, any preference expressed by
a parent of the respondent, the estate of the respondent and any impact on ease
of administration that may result from the appointment. [1995 c.664 §19]
125.205
Persons not qualified to act as fiduciary. (1) A
person is not qualified to serve as a fiduciary if the person:
(a) Is incapacitated, financially
incapable or a minor;
(b) Is acting as a health care provider,
as defined in ORS 127.505, for the protected person; or
(c) Is the protected person’s parent or
former guardian and:
(A) At any time while the protected person
was under the care, custody or control of the person, a court entered an order:
(i) Taking the
protected person into protective custody under ORS 419B.150;
or
(ii) Committing the protected person to
the legal custody of the Department of Human Services for care, placement and
supervision under ORS 419B.337; and
(B) The court entered a subsequent order
that:
(i) The
protected person should be permanently removed from the person’s home, or
continued in substitute care, because it was not safe for the protected person
to be returned to the person’s home, and no subsequent order of the court was
entered that permitted the protected person to return to the person’s home
before the protected person’s wardship was terminated
under ORS 419B.328; or
(ii) Terminated the person’s parental
rights under ORS 419B.500 and 419B.502
to 419B.524.
(2) A protected person, while not
incapacitated, may petition the court to remove a prohibition contained in
subsection (1)(c) of this section. [1995 c.664 §20;
2011 c.194 §1]
125.210
Notice to court of criminal conviction, revocation or cancellation of
occupational license or bankruptcy proceedings.
(1) A person nominated as a fiduciary who has been convicted of a crime, has
filed for or received protection under the bankruptcy laws or has had a license
revoked or canceled that was required by the laws of any state for the practice
of a profession or occupation must inform the court of the circumstances of
those events before the person is appointed. If the person nominated to be a
fiduciary is also the petitioner, the information required by this section may
be provided in the petition for appointment of a fiduciary in the manner
specified by ORS 125.055.
(2) A person who has been appointed as a
fiduciary who is convicted of a crime, files for or receives protection under
the bankruptcy laws or has a license revoked or canceled that is required by
the laws of any state for the practice of a profession or occupation must
inform the court of the circumstances of those events immediately.
(3) A person who is required to give
notice to the court under subsection (2) of this section must also give notice
to those persons listed in ORS 125.060 (3).
(4) The court may decline to appoint a
person as fiduciary, or may remove a person as fiduciary, if the person fails
to comply with the provisions of this section. [1995 c.664
§21]
125.215
Acceptance of appointment as fiduciary; notice of proceedings to fiduciary.
(1) If the person filing a petition in a protective proceeding is also
nominated in the petition as fiduciary for the respondent, the signature of the
petitioner on the petition acts as acceptance of appointment upon entry of an
order appointing the petitioner as fiduciary. If the person nominated as a
fiduciary is not the petitioner, the person nominated must file an acceptance
of the appointment before the entry of the order appointing the fiduciary.
(2) A fiduciary must promptly file with
the court any change in the name, residence or post-office address of the
fiduciary.
(3) Subject to ORS 125.800 to 125.852 for
adults as defined in ORS 125.802, the court has personal jurisdiction over any
person who accepts appointment as a fiduciary for the purpose of any matter
relating to the protective proceeding, whether the person is a resident or
nonresident of this state.
(4) Notice of an objection, motion or
other matter in a protective proceeding may be personally served on the
fiduciary or mailed to the fiduciary or the fiduciary’s attorney by ordinary
mail at the address listed in the court records and to any address for the
fiduciary or the fiduciary’s attorney known to the person giving notice. [1995 c.664 §22; 2009 c.179 §25]
125.220
[1995 c.664 §23; repealed by 1999 c.774
§1 (125.221 enacted in lieu of 125.220)]
125.221
Conflicts of interest. (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) In addition to the disclosures
required by subsections (1) and (2) of this section, prior court approval is
required for payment of compensation to a person who is the spouse, parent or
child of the fiduciary or to a business entity in which the spouse, parent or
child of the fiduciary has an ownership interest and that is employed by the
fiduciary to provide direct services to a protected person or to provide
services to the fiduciary that directly affect the protected person. The
fiduciary must provide the court with the following information:
(a) The specific services to be provided;
(b) The qualifications of the person
providing the services;
(c) The rate of compensation charged by
the person; and
(d) Any other information relevant to
either the person providing the services or the services being provided to the
protected person, including, but not limited to, loss of a professional license
or a criminal conviction.
(5) The court may 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.
(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 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.
(7) 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.
(8) In addition to the grounds specified
in subsections (6) and (7) 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.
(9) A fiduciary employs a person for the
purposes of this section whether the person is engaged as an employee or as an
independent contractor. [1999 c.774 §2 (enacted in
lieu of 125.220); 2003 c.392 §1]
125.225
Removal of fiduciary. (1) A court shall remove a
fiduciary whenever that removal is in the best interests of the protected
person.
(2) In addition to any other grounds, the
court may remove a conservator if the conservator fails to use good business
judgment and diligence in the management of the estate under the control of the
conservator. The court may apply a higher standard of care to a conservator who
claims to have greater than ordinary skill or expertise.
(3) The court may remove a guardian if the
guardian places the protected person in a mental health treatment facility, a
nursing home or other residential facility and:
(a) Failed to disclose in the petition for
appointment that the guardian intended to make the placement; or
(b) Failed to comply with ORS 125.320 (3)
before making the placement.
(4) On termination of the authority of a
fiduciary, an interim fiduciary may be appointed by the court to serve for a
period not to exceed 60 days. An interim fiduciary under this subsection may be
appointed by the court without the appointment of a visitor, additional notices
or any other additional procedure, except as may be determined necessary by the
court.
(5) Upon termination of the authority of a
fiduciary, the court may appoint a successor fiduciary. A petition for
appointment as successor fiduciary must be filed in the same manner as provided
for an original petition, and is subject to all provisions applicable to an
original petition for the appointment of a fiduciary except:
(a) No filing fee shall be charged or
collected for the filing of a petition for the appointment of a successor
fiduciary; and
(b) The court may enter an order waiving
the requirement of appointing a visitor if the termination of the fiduciary’s
authority results from the resignation or death of the fiduciary. [1995 c.664 §24]
125.230
Termination of fiduciary’s authority; discharge of fiduciary.
(1) Except as provided in subsection (3) of this section, a fiduciary’s
authority terminates upon the death, resignation or removal of the fiduciary or
upon the protected person’s death. If the fiduciary is a guardian appointed
solely by reason of the minority of the protected person, the fiduciary’s
authority terminates upon the protected person attaining 18 years of age.
(2) Resignation or removal of a fiduciary
does not discharge the fiduciary until a final report or accounting has been
approved by the court, any surety exonerated and the fiduciary discharged by
order of the court.
(3) A guardian retains the authority to
direct disposition of the remains of a deceased protected person if the
guardian is unaware of any contact during the 12-month period immediately
preceding the death of the protected person between the protected person and
any person with priority over the fiduciary to control disposition of the
remains under ORS 97.130 or to make an anatomical gift under ORS 97.965. [1995 c.664 §25; 1997 c.472 §11; 2007 c.681 §26]
125.235
Liability of fiduciary. A fiduciary is not personally
liable to third persons for acts of the protected person solely by reason of
being appointed fiduciary. [1995 c.664 §26]
125.240
Professional fiduciaries. (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 (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 (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. [1999 c.774 §4; 2001 c.102 §4; 2001 c.104 §37; 2009 c.602 §3]
125.242
Exemptions for financial institutions and trust companies.
ORS 125.221 and 125.240 do not apply to a financial institution, as defined in
ORS 706.008, or trust company, as defined in ORS 706.008. [1999 c.774 §5]
Note:
125.242 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 125 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
GUARDIANS
125.300
In general. (1) A guardian may be appointed for an
adult person only as is necessary to promote and protect the well-being of the
protected person. A guardianship for an adult person must be designed to encourage
the development of maximum self-reliance and independence of the protected
person and may be ordered only to the extent necessitated by the person’s
actual mental and physical limitations.
(2) An adult protected person for whom a
guardian has been appointed is not presumed to be incompetent.
(3) A protected person retains all legal
and civil rights provided by law except those that have been expressly limited
by court order or specifically granted to the guardian by the court. Rights
retained by the person include but are not limited to the right to contact and
retain counsel and to have access to personal records. [1995 c.664 §27]
125.305
Order of appointment. (1) After determining that
conditions for the appointment of a guardian have been established, the court
may appoint a guardian as requested if the court determines by clear and
convincing evidence that:
(a) The respondent is a minor in need of a
guardian or the respondent is incapacitated;
(b) The appointment is necessary as a
means of providing continuing care and supervision of the respondent; and
(c) The nominated person is both qualified
and suitable, and is willing to serve.
(2) The court shall make a guardianship
order that is no more restrictive upon the liberty of the protected person than
is reasonably necessary to protect the person. In making the order the court
shall consider the information in the petition, the report of the visitor, the
report of any physician or psychologist who has examined the respondent, if
there was an examination and the evidence presented at any hearing.
(3) The court may require that a guardian
post bond.
(4) The Department of Human Services may
be appointed guardian of a minor if the minor has no living parents and if no
willing, qualified and suitable relative or other person has petitioned the
court for appointment as a guardian. [1995 c.664 §28]
125.310
Letters of guardianship. The court shall issue letters of
guardianship to the guardian after the filing of any acceptance of the
appointment and bond that may be required. A copy of the order appointing the
guardian must be attached to the letters of guardianship. Letters of
guardianship must be in substantially the following form:
______________________________________________________________________________
State of
Oregon, )
) LETTERS OF
County of___ )
GUARDIANSHIP
BY THESE
LETTERS OF GUARDIANSHIP be informed:
That on ___ (month) ___(day), 2___,
the _____ Court, ___ County, State of Oregon, appointed_____ (name
of guardian) guardian for _____ (name of protected person) and that the named
guardian has qualified and has the authority and duties of guardian for the
named protected person as provided in the order appointing the guardian, a copy
of which is attached to these letters.
IN TESTIMONY WHEREOF, I have subscribed my
name and affixed the seal of the court at my office on ___ (month) ___(day), 2___.
(Seal)
________, Clerk of the Court
By________, Deputy
______________________________________________________________________________
[1995
c.664 §29]
125.315
General powers and duties of guardian. (1) A
guardian has the following powers and duties:
(a) Except to the extent of any limitation
under the order of appointment, the guardian has custody of the protected
person and may establish the protected person’s place of abode within or
without this state.
(b) The guardian shall provide for the
care, comfort and maintenance of the protected person and, whenever
appropriate, shall arrange for training and education of the protected person.
Without regard to custodial rights of the protected person, the guardian shall
take reasonable care of the person’s clothing, furniture and other personal
effects unless a conservator has been appointed for the protected person.
(c) Subject to the provisions of ORS
127.505 to 127.660 and subsection (3) of this section, the guardian may
consent, refuse consent or withhold or withdraw consent to health care, as
defined in ORS 127.505, for the protected person. A guardian is not liable
solely by reason of consent under this paragraph for any injury to the
protected person resulting from the negligence or acts of third persons.
(d) The guardian may:
(A) Make advance funeral and burial
arrangements;
(B) Subject to the provisions of ORS
97.130, control the disposition of the remains of the protected person; and
(C) Subject to the provisions of ORS
97.965, make an anatomical gift of all or any part of the body of the protected
person.
(e) The guardian of a minor has the powers
and responsibilities of a parent who has legal custody of a child, except that
the guardian has no obligation to support the minor beyond the support that can
be provided from the estate of the minor, and the guardian is not liable for
the torts of the minor. The guardian may consent to the marriage or adoption of
a protected person who is a minor.
(f) Subject to the provisions of ORS
125.320 (2), the guardian may receive money and personal property deliverable
to the protected person and apply the money and property for support, care and
education of the protected person. The guardian shall exercise care to conserve
any excess for the protected person’s needs.
(2) If a conservator has been appointed
for the protected person, the guardian may file a motion with the court seeking
an order of the court on the duties of the conservator relating to payment of
support for the protected person.
(3) A guardian may consent to the
withholding or withdrawing of artificially administered nutrition and hydration
for a protected person only under the circumstances described in ORS 127.580
(1)(a), (b), (d), (e) or (f) and, if the protected person has a medical
condition specified in ORS 127.580 (1)(b), (d), (e) or (f), the condition has
been medically confirmed. [1995 c.664 §30; 1997 c.472 §12; 2007 c.230 §1; 2007 c.681 §27]
125.320
Limitations on guardian. (1) A guardian may not authorize
the sterilization of the protected person.
(2) A guardian may not use funds from the
protected person’s estate for room and board that the guardian or guardian’s
spouse, parent or child have furnished the protected person unless the charge
for the service is approved by order of the court before the payment is made.
(3)(a) Before a guardian may place an
adult protected person in a mental health treatment facility, a nursing home or
other residential facility, the guardian must file a statement with the court
informing the court that the guardian intends to make the placement.
(b) Notice of the statement of intent must
be given in the manner provided by ORS 125.065 to the persons specified in ORS
125.060 (3).
(c) In addition to the requirements of
paragraph (b) of this subsection, notice of the statement of intent must be
given in the manner provided by ORS 125.065 by the guardian 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 notice states the
intention 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 notice states the intention to place
the protected person in such a facility, the system described in ORS 192.517
(1).
(d) In addition to the requirements of ORS
125.070 (1), the notice given to the protected person must clearly indicate the
manner in which the protected person may object to the proposed placement.
(e) The guardian may thereafter place the
adult protected person in a mental health treatment facility, a nursing home or
other residential facility without further court order. If an objection is made
in the manner provided by ORS 125.075, the court shall schedule a hearing on
the objection as soon as practicable.
(f) The requirement that notice be served
on an attorney for a protected person under paragraph (c)(A) of this subsection
does not impose any responsibility on the attorney receiving the notice to
represent the protected person in the protective proceeding. [1995 c.664 §31; 2001 c.473 §1; 2005 c.498 §3]
125.325
Guardian’s report. Within 30 days after each
anniversary of appointment, a guardian for an adult protected person shall file
with the court a written report. The report must include a declaration under
penalty of perjury in the form required by ORCP 1 E.
Copies of the guardian’s report must be given to those persons specified in ORS
125.060 (3). The report shall be in substantially the following form:
______________________________________________________________________________
IN THE _________ COURT ____________
COUNTY,
STATE OF OREGON
DEPARTMENT OF PROBATE
In the Matter
of the ) No. ______
Guardianship of )
____________, )
(Name of
protected )
person) )
A Protected )
Person. )
GUARDIAN’S
REPORT
I am the guardian for the person named
above, and I make the following report to the court as required by law:
1. My name is____________.
2. My address and telephone number are:
______________________
______________________
Phone ____________
3. The name, if applicable, and address of
the place where the person now resides are:
______________________
______________________
4. The person is currently residing at the
following type of facility or residence:
______________________
5. The person is currently engaged in the
following programs and activities and receiving the following services (brief
description):
______________________
6. I was paid for providing the following
items of lodging, food or other services to the person:
______________________
______________________
7. The name of the person primarily
responsible for the care of the person at the person’s place of residence is:
______________________
8. The name and address of any hospital or
other institution where the person is now admitted on a temporary or permanent
basis are:
______________________
______________________
9. The person’s physical condition is as
follows (brief description):
______________________
______________________
10. The person’s mental condition is as
follows (brief description):
______________________
______________________
11. I made the following contacts with the
person during the past year (brief description):
______________________
12. I made the following major decisions
on behalf of the person during the past year (brief description):
______________________
13. I believe the guardianship should or
should not continue because:
______________________
14. At the time of my last report, I held
the following amount of money on behalf of the person: $______. Since my last
report, I received the following amount of money on behalf of the person: $______.
I spent the following amount of money on behalf of the person: $______. I now
hold the following amount of money on behalf of the person: $______.
15. A true copy of this report will be
given to the person, any conservator for the person and any other person who
has requested notice.
16. Since my last report:
(a) I have been convicted of the following
crimes (not including traffic violations):
______________________
(b) I have filed for or received
protection from creditors under the Federal Bankruptcy Code (yes or no):_____.
(c) I have had a professional or
occupational license revoked or suspended (yes or no):_____.
(d) I have had my driver license revoked
or suspended (yes or no):_____.
17. Since my last report, I have delegated
the following powers over the protected person for the following periods of
time (provide name of person powers delegated to):
______________________
I hereby declare that the above statement
is true to the best of my knowledge and belief, and that I understand it is
made for use as evidence in court and is subject to penalty for perjury.
Dated this ___ day of________, 2___.
______________________
Guardian
______________________________________________________________________________
[1995
c.664 §32; 1997 c.717 §6;
2007 c.284 §4]
125.330
Limitations on guardian appointed for person committed to custody of Department
of Corrections. (1) Except as provided in
subsection (2) of this section, a guardian appointed for a person committed to
the legal and physical custody of the Department of Corrections may not
exercise those powers specified in ORS 125.315 (1)(a) or (b) while the person
remains confined.
(2) A guardian appointed for a person
committed to the legal and physical custody of the Department of Corrections
may take reasonable care of the person’s clothing, furniture and other personal
effects that are not located at the person’s place of confinement.
(3) A guardian appointed for an
incarcerated person may exercise those powers specified in ORS 125.315 (1)(c)
only to the extent that the exercise of those powers is consistent with the
protected person’s status as a confined person and with the powers and duties
of the superintendent or other officials of the facility. In no event may a
guardian appointed for a person committed to the legal and physical custody of
the Department of Corrections exercise more authority over health care
decisions than the protected person could exercise given the person’s status as
a confined person. [1999 c.122 §2]
CONSERVATORS
(Appointment)
125.400
Order of appointment. Upon the filing of a petition
seeking the appointment of a conservator, the court may appoint a conservator
and make other appropriate protective orders if the court finds by clear and
convincing evidence that the respondent is a minor or financially incapable,
and that the respondent has money or property that requires management or
protection. [1995 c.664 §33]
125.405
Letters of conservatorship. The court shall issue letters of
conservatorship to the conservator after the filing of any acceptance of the
appointment and bond that may be required. Letters of conservatorship must be
in substantially the following form:
______________________________________________________________________________
State of
Oregon, )
) LETTERS OF
County of___ ) CONSERVATORSHIP
BY
THESE LETTERS OF CONSERVATORSHIP be informed:
That on ___ (month) ___(day), 2___, the _____
Court, ___ County, State of Oregon, appointed _____ (name of conservator)
conservator of the estate of _____ (name of protected person) and that the
named conservator has qualified and has the authority and duties of conservator
of the estate of the named protected person as provided by law.
LIMITATIONS:
_______________
IN TESTIMONY WHEREOF, I have subscribed my
name and affixed the seal of the court at my office on ___ (month) ___(day), 2___.
(Seal)
________, Clerk of the Court
By________, Deputy
______________________________________________________________________________
[1995
c.664 §34]
(Bond)
125.410
Conservator’s bond. (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 (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. [1995 c.664 §36; 2001 c.102 §5; 2005 c.625 §66; 2009 c.602 §4]
125.415
Termination of bond by surety. (1) A surety
may cancel the obligation of the surety upon notice in writing to the
conservator and the court. The notice shall specify an effective date for the
cancellation that is not less than 30 days after the date of the notice.
(2) A surety’s obligation under a bond
shall continue until court approval of an accounting covering the period during
which the bond was effective and an order is entered releasing the sureties. [1995
c.664 §37]
(Conservator’s
Powers and Duties)
125.420
Power of conservator over property of protected person.
A conservator shall take possession of all the property of substantial value of
the protected person, and of rents, income, issues and profits from those
properties whether accruing before or after the appointment of the conservator.
The conservator shall also take possession of all proceeds from the sale,
mortgage, lease or other disposition of property of the protected person. The
conservator may permit the protected person to retain possession and control of
property and funds for living requirements as appropriate to the needs and
capacities of the protected person. The title to all property of the protected
person is in the protected person and not in the conservator. [1995 c.664 §38]
125.425
Powers of conservator to pay expenses of protected person and dependents.
(1) A conservator may expend or distribute income or principal of the estate
without prior court authorization or confirmation for the support, education,
care or benefit of the protected person and the dependents of the protected
person after the conservator considers recommendations relating to the
appropriate standard of support, education, care and benefit for the protected
person made by any parent or guardian of the protected person. The conservator
is not personally responsible for sums paid to persons or organizations
furnishing support, education, care or benefit to the protected person pursuant
to the recommendations of a parent or guardian of the protected person unless:
(a) The conservator knows that the parent
or guardian is deriving personal financial benefit from those payments; or
(b) The recommendations made by the parent
or guardian clearly are not in the best interests of the protected person.
(2) A conservator may expend or distribute
income or principal of the estate without prior court authorization or
confirmation for the support, education, care or benefit of the protected
person and the dependents of the protected person if those amounts are reasonably
necessary for the support, education, care or benefit of the protected person
with due regard to:
(a) The size of the estate, the probable
duration of the conservatorship and the likelihood that the protected person,
at some future time, may be fully able to manage the affairs of the protected
person and the estate that has been conserved for the protected person;
(b) The accustomed standard of living of
the protected person and members of the household of the protected person; and
(c) Other funds or sources used for the
support of the protected person.
(3) A conservator may expend or distribute
income or principal of the estate without prior court authorization or
confirmation for the support, education, care or benefit of the dependents of
the protected person, other persons who are members of the protected person’s
household who are unable to support themselves and who are in need of support,
and any other persons who were receiving support from the protected person
before the appointment of the conservator.
(4) The conservator may reimburse any
person, including the protected person, who has expended funds for the purposes
specified in this section. The conservator may pay any person in advance for
those purposes if the conservator reasonably believes that the services will be
performed and where advance payments are customary or reasonably necessary
under the circumstances. [1995 c.664 §39]
125.430
Sale of protected person’s residence. (1) A
protected person’s principal residence may be sold by a conservator only with
the prior approval of the court. A motion seeking prior approval must be filed
with the court and notice given to the persons specified in ORS 125.060 (3).
(2) For purposes of this section, “principal
residence” means a residence that is owned by the protected person and in which
the protected person resides or last resided, whether or not the protected
person resides in the residence at the time approval to sell is sought from the
court. [1995 c.664 §40]
125.435
Power of conservator to make gifts. If the estate
has adequate funds to provide for the purposes specified in ORS 125.425, a
conservator may make gifts on behalf of the protected person for such purposes
as the protected person might have been expected to make. The conservator may
make gifts without prior court approval of up to $250 to a person in a calendar
year, not to exceed an aggregate amount of $1,000 for all gifts in a calendar
year. The conservator must have prior court approval for any other gifts. [1995
c.664 §41]
125.440
Acts conservator may perform only with court approval.
A conservator may perform the following acts only with prior court approval:
(1) Convey or release contingent or
expectant interests of the protected person in property, including marital property
rights and any right of survivorship incident to joint tenancy or tenancy by
the entirety.
(2) Create revocable or irrevocable trusts
of property of the estate. A trust created by the conservator may extend beyond
the period of disability of the protected person or beyond the life of the
protected person. A trust created by the conservator must be consistent with
the will of the protected person or any other written or oral expression of
testamentary intent made by the protected person before the person became
incapacitated. The court may not approve a trust that has the effect of
terminating the conservatorship unless:
(a) The trust is created for the purpose
of qualifying the protected person for needs-based government benefits or
maintaining the eligibility of the protected person for needs-based government
benefits;
(b) The value of the conservatorship
estate, including the amount to be transferred to the trust, does not exceed
$50,000;
(c) The purpose of establishing the
conservatorship was to create the trust; or
(d) The conservator shows other good cause
to the court.
(3) Exercise rights of the protected
person to elect options and change beneficiaries under insurance and annuity
policies and to surrender the policies for their cash value.
(4) Disclaim any interest the protected
person may have by testate or intestate succession, by inter vivos transfer or by transfer on death deed.
(5) Authorize, direct or ratify any
annuity contract or contract for life care.
(6) Revoke a transfer on death deed. [1995
c.664 §42; 2007 c.62 §1;
2011 c.212 §28]
Note:
Section 31, chapter 212, Oregon Laws 2011, provides:
Sec.
31. Sections 19 to 21 of this 2011 Act
[93.981 to 93.985] and the amendments to ORS 86.740, 93.030, 93.040, 107.115,
112.465, 112.570 and 125.440 by sections 22 to 28 of this 2011 Act apply to a
transfer on death deed made before, on or after the effective date of this 2011
Act [January 1, 2012] by a transferor dying on or after the effective date of
this 2011 Act. [2011 c.212 §31]
125.445
Acts authorized to be performed without prior court approval.
A conservator may perform the following acts without prior court authorization
or confirmation if the conservator is acting reasonably to accomplish the
purposes for which the conservator was appointed:
(1) Collect, hold and retain assets of the
estate including land wherever situated, until, in the judgment of the
conservator, disposition of the assets should be made. Assets of the estate may
be retained even though those assets include property in which the conservator
is personally interested.
(2) Receive additions to the estate.
(3) Continue or participate in the
operation of any business or other enterprise.
(4) Acquire an undivided interest in an
estate asset in which the conservator, in any fiduciary capacity, holds an
undivided interest.
(5) Invest and reinvest estate assets and
funds in the same manner as a trustee may invest and reinvest.
(6) Deposit estate funds in a bank
including a bank operated by the conservator.
(7) Except as limited in ORS 125.430,
acquire or dispose of an estate asset including real property wherever situated
for cash or on credit, at public or private sale.
(8) Manage, develop, improve, exchange,
partition, change the character of or abandon an estate asset in connection
with the exercise of any power vested in the conservator.
(9) Make ordinary or extraordinary repairs
or alterations in buildings or other structures, demolish any improvements, or
raze existing or erect new party walls or buildings.
(10) Subdivide, develop or dedicate land
to public use, make or obtain the vacation of plats and adjust boundaries,
adjust differences in valuation on exchange or partition by giving or receiving
considerations, and dedicate easements to public use without consideration.
(11) Enter for any purpose into a lease as
lessor or lessee with or without option to purchase
or renew for a term within or extending beyond the term of the conservatorship.
(12) Enter into a lease or arrangement for
exploration and removal of minerals or other natural resources or enter into a
pooling or unitization agreement.
(13) Grant an option involving disposition
of an estate asset or take an option for acquisition of any asset.
(14) Vote a security, in person or by
general or limited proxy.
(15) Pay calls, assessments and any other
sums chargeable or accruing against or on account of securities.
(16) Sell or exercise stock subscription
or conversion rights, or consent, directly or through a committee or other
agent, to the reorganization, consolidation, merger, dissolution or liquidation
of a corporation or other business enterprise.
(17) Hold a security in the name of a
nominee or in other form without disclosure of the conservatorship so that
title to the security may pass by delivery. The conservator is liable for any
act of the nominee in connection with the stock so held.
(18) Insure the assets of the estate
against damage or loss, and the conservator against liability with respect to
third persons.
(19) Borrow money to be repaid from estate
assets or otherwise and mortgage or pledge property of the protected person as
security therefor.
(20) Advance money for the protection of
the estate or the protected person, and for all expenses, losses and liability
sustained in the administration of the estate or because of the holding or
ownership of any estate assets. The conservator has a lien on the estate as
against the protected person for advances so made.
(21) Pay or contest any claim, settle a
claim by or against the estate or the protected person by compromise,
arbitration or otherwise, and release, in whole or in part, any claim belonging
to the estate to the extent that the claim is uncollectible.
(22) Pay taxes, assessments, compensation
of the conservator and other expenses incurred in the collection, care,
administration and protection of the estate.
(23) Allocate items of income or expense
to either income or principal, including creation of reserves out of income for
depreciation, obsolescence or amortization, or for depletion in mineral or
timber properties.
(24) Pay any sum distributable to a
protected person or a dependent of a protected person by paying the sum to the
protected person or the dependent, or by paying the sum either to a guardian,
custodian under ORS 126.700, or conservator of the protected person or, if
none, to a relative or other person with custody of the protected person.
(25) Employ persons, including attorneys,
auditors, investment advisers or agents, even though they are associated with
the conservator, to advise or assist the conservator in the performance of
administrative duties, acting upon their recommendation without independent
investigation, and instead of acting personally, employing one or more agents
to perform any act of administration, whether or not discretionary, except that
payment to the conservator’s attorney of record is subject to the provisions of
ORS 125.095.
(26) Prosecute or defend actions, claims
or proceedings in any jurisdiction for the protection of estate assets and of
the conservator in the performance of duties.
(27) Prosecute claims of the protected
person including those for the personal injury of the protected person.
(28) Execute and deliver all instruments
that will accomplish or facilitate the exercise of the powers vested in the
conservator. [1995 c.664 §43]
125.450
Voidable transactions. Any sale or encumbrance to a
conservator, the spouse, agent or attorney of the conservator, or any
corporation or trust in which the conservator has a substantial beneficial
interest, or any transaction that is otherwise affected by a substantial
conflict of interest is voidable unless the transaction is approved by the
court after the filing of a motion with the court seeking approval of the
transaction. [1995 c.664 §44]
(Desires
of Protected Person)
125.455
Power of competent protected person over estate.
(1) A protected person, if mentally competent, may make wills, change
beneficiaries of life insurance and annuity policies and exercise any power of
appointment or any elective right to share in the estate of a deceased spouse.
(2) Except as provided in this section and
ORS 125.420, a protected person for whom a conservator has been appointed
cannot convey or encumber the estate of the protected person or make any
contract or election affecting the estate of the protected person. [1995 c.664 §45]
125.460
Consideration of estate plan of protected person.
In investing the estate, selecting assets of the estate for distribution and
utilizing powers of revocation or withdrawal available for the support of the
protected person and exercisable by the conservator or the court, the
conservator and the court shall take into account any known estate plan of the
protected person, including the will of the protected person, any revocable
trust of which the protected person is settlor, and
any contract, transfer or joint ownership arrangement with provisions for
payment or transfer of benefits or interests at the death of the protected
person to another or others that the protected person may have originated. The
conservator may examine the will of the protected person. [1995 c.664 §46]
(Inventory
of Property)
125.465
Discovery of property; examination by conservator.
(1) The court may order any person to appear and give testimony by deposition
if it appears probable that the person:
(a) Has concealed, secreted or disposed of
any property of the protected person;
(b) Has been entrusted with property of
the protected person and fails to account for that property to the conservator;
(c) Has concealed, secreted or disposed of
any writing, instrument or document relating to the affairs of the protected
person;
(d) Has knowledge or information that is
necessary to the administration of the affairs of the protected person; or
(e) As an officer or agent of a
corporation, has refused to allow examination of the books and records of the
corporation that the protected person has a right to examine.
(2) If a person is cited to appear under
this section and fails to appear or to answer questions asked as authorized by
the order of the court, the person may be held in contempt of court. [1995 c.664 §47]
125.470
Filing of inventory required; supplemental inventory.
(1) Within 90 days after the date of appointment, unless a longer time is
granted by the court, a conservator must file in the protective proceeding an
inventory of all the property of the estate of the protected person that has
come into the possession or knowledge of the conservator. The inventory must
show the estimates by the conservator of the respective true cash values as of
the date of the protective order. If the protected person has attained 14 years
of age, a copy of the inventory must be served on the protected person
personally or by mail.
(2) Whenever any property of the estate of
the protected person not included in the inventory or any subsequent accounting
and not derived from any asset included in a prior inventory or any subsequent
accounting comes into the possession or knowledge of the conservator, the
conservator must file a supplemental inventory in the protective proceeding.
The supplemental inventory must be filed within 30 days after the date of
receiving possession or knowledge of the property.
(3) If the estate of the protected person
includes real property, the conservator must record in the deed records of the
clerk of the county in which the real property is situated a certified copy of
the inventory required by this section or an abstract in substantially the
following form:
______________________________________________________________________________
The
protected person’s name is ______
___________________________
Conservatorship
Case # ____________
County
where proceedings are pending ______________________
Conservator
is ____________
Conservator’s
address is ____________
Attorney’s
name is ____________
Attorney’s
address is ____________
The
following real property is subject to proceedings: ________
Signature
______________________
Dated
______________________
STATE OF OREGON )
) ss.
County of________ )
The foregoing instrument was acknowledged
before me this ___ day of______, 2___, by____________.
______________________
Notary Public for Oregon
My commission expires: ____________
______________________________________________________________________________
[1995
c.664 §48]
(Accountings)
125.475
Conservator’s accounting to court; contents. (1)
Unless the court by order provides otherwise, a conservator shall account to
the court for the administration of the protected estate within 60 days after
each anniversary of appointment. In addition, a conservator shall account to
the court for the administration of the protected estate:
(a) Within 60 days after the death of the
protected person, a minor protected person attains majority or an adult
protected person becomes able to manage the protected person’s financial
resources; and
(b) Within 30 days after the removal of
the conservator, the resignation of the conservator or the termination of the
conservator’s authority under ORS 125.410 (7).
(2) Each accounting must include the
following information:
(a) The period of time covered by the
accounting.
(b) The total value of the property with
which the conservator is chargeable according to the inventory, or, if there
was a prior accounting, the amount of the balance of the prior accounting.
(c) All money and property received during
the period covered by the accounting.
(d) All disbursements made during the
period covered by the accounting.
(e) The amount of bond posted by the
conservator during the period covered by the accounting.
(f) Such other information as the
conservator considers necessary, or that the court might require, for the
purpose of disclosing the condition of the estate.
(3) Vouchers for disbursements must
accompany the accounting unless otherwise provided by order or rule of the
court or unless the conservator is a trust company that has complied with ORS
709.030. If vouchers are not required, the conservator shall:
(a) Maintain the vouchers for a period of
not less than one year following the date on which the order approving the
final accounting is entered;
(b) Permit interested persons to inspect
the vouchers and receive copies of the vouchers at their own expense at the
place of business of the conservator during the conservator’s normal business
hours at any time before the end of one year following the date on which the
order approving the final accounting is entered; and
(c) Include in each annual accounting and
the final accounting a statement that the vouchers are not filed with the
accounting but are maintained by the conservator and may be inspected and
copied as provided in this subsection.
(4) The court may waive a final accounting
if:
(a) The conservator was appointed because
the protected person was a minor, and the protected person has attained the age
of majority, or the conservator was appointed because the protected person was
financially incapable, and the protected person is no longer financially
incapable;
(b) The protected person gives a receipt
to the conservator for the property delivered to the protected person; and
(c) The conservator files with the court a
copy of the receipt issued by the protected person to the conservator.
(5) Copies of accountings must be served
on all persons listed in ORS 125.060 (3). The court may waive service on the
protected person if service of the copy would not assist the protected person
in understanding the proceedings.
(6) The court may require a conservator to
submit to a physical check of the estate in the control of the conservator at
any time and in any manner the court may specify.
(7) The Chief Justice of the Supreme Court
may by rule specify the form and contents of accounts that must be filed by a
conservator. [1995 c.664 §49; 1997 c.631 §411; 1999 c.592 §4; 2005 c.123 §2]
125.480
Approval of accounting. Subject to appeal or vacation
within the time allowed by law, an order, made upon notice and hearing,
allowing an intermediate accounting of a conservator, is final as to the
liabilities of the conservator concerning the matters considered in connection
with the intermediate accounting. An order, made upon notice and hearing,
allowing a final accounting is final as to all previously unsettled liabilities
of the conservator to the protected person or successors relating to the
conservatorship. [1995 c.664 §50]
(Liabilities)
125.485
Liability of conservator. (1) A conservator is not
personally liable on a contract entered into in the fiduciary capacity of the
conservator in the course of administering the estate unless:
(a) The contract specifically makes the
conservator liable in a personal capacity; or
(b) The conservator fails to reveal the
representative capacity of the conservator and identity of the estate in the
contract.
(2) The conservator is personally liable
for obligations arising from ownership, obligations arising out of control of
property of the estate and torts committed in the course of administration of
the estate only if the conservator is personally at fault.
(3) Claims based on contracts entered into
by a conservator in the fiduciary capacity of the conservator, on obligations
arising from ownership or control of the estate or on torts committed in the
course of administration of the estate may be asserted against the estate by
proceeding against the conservator in the fiduciary capacity of the
conservator, whether or not the conservator is personally liable.
(4) Any question of liability between the
estate and the conservator personally may be determined in a proceeding for
accounting or for indemnification, or in any other appropriate proceeding or
action. [1995 c.664 §51]
125.490
Status of persons dealing with conservator. (1) A
person who in good faith either assists a conservator or deals with the
conservator for value in any transaction other than those requiring a court
order under the provisions of this chapter is protected as if the conservator
properly exercised the power. The fact that a person knowingly deals with a
conservator does not require the person to inquire into existence of a power or
the propriety of its exercise, except that restrictions on powers of
conservators that are indorsed on letters are effective as to third persons. A
person is not required to see to the proper application of estate assets paid
or delivered to a conservator.
(2) The protection provided under
subsection (1) of this section:
(a) Is not affected by any procedural
irregularity or jurisdictional defect in the proceedings that resulted in the
issuance of letters; and
(b) Is in addition to the protection
provided by comparable provisions of the laws relating to commercial
transactions and laws simplifying transfers of securities by fiduciaries.
(3) A person who holds property in which
the protected person has an interest, or who is indebted either to the
protected person or to the protected person and others, may enter into
transactions with the conservator with respect to the property or debt to the
same extent that the person could deal with the protected person if the
protected person were not under protection. [1995 c.664
§52]
(Claims
and Expenses)
125.495
Payment of claims against estate or protected person.
(1) A conservator shall pay from the estate claims against the estate and
against the protected person arising before or after the conservatorship upon
their presentation, allowance and maturity. Claims that become absolute at an
uncertain event may not be allowed. The conservator may allow claims against
the estate of a protected person in part and disallow them in part.
(2) A claim may be presented by either of
the following methods:
(a) The claimant may deliver or mail to
the conservator or the attorney for the conservator a written statement of the
claim stating the basis of the claim, the name and address of the claimant and
of the claimant’s attorney if the claimant is represented by an attorney in
respect to the claim, and the amount claimed.
(b) The claimant may file the claim with
the clerk of the court in which the proceeding is pending, captioned in a
manner that will identify the protected person and the clerk’s number of the
proceeding, and deliver or mail a copy of the statement to the conservator or
the attorney of the conservator.
(3) If the conservator disallows the claim
in whole or in part, or if the conservator finds that the claim is valid but
not due, the conservator shall notify the claimant or the attorney of the
claimant in writing of the disallowance or finding of the conservator.
(4) The presentation of a claim and any
defect in form or substance may be waived by the conservator or by the court if
the claim, properly stated, is a valid and absolute obligation of the estate.
(5) The conservator may reconsider any
claim previously rejected or allowed, or may compromise any claim against the
estate of a protected person, including contingent, unliquidated
and unmatured claims. [1995 c.664
§53]
125.500
Enforcement of claim against estate or protected person.
(1) An action upon a claim may not be brought until the claim is disallowed or
until 60 days have elapsed from the date of its presentment without allowance
of payment.
(2) A creditor of the protected person or
the estate of the protected person whose claim is secured may not exercise
remedies against the security until at least 30 days after the claim is
presented and after notice to the conservator or the attorney of the
conservator that the creditor intends to exercise remedies against the
security. The court may shorten the period for cause.
(3) The conservator may convey the security
to the secured creditor in full or partial satisfaction of the claim if the
secured creditor agrees to accept the conveyance as full satisfaction or
partial satisfaction of the debt. [1995 c.664 §54]
125.505
Notice of claim to conservator. If a proceeding
is pending against a protected person at the time of appointment of a
conservator or is commenced against the protected person after appointment of a
conservator, the plaintiff must give notice of the proceeding to the
conservator or the attorney of the conservator if any judgment or order arising
out of the proceeding will constitute a claim against the estate. [1995 c.664 §55]
125.510
Procedure where claim disallowed. (1) If the
conservator disallows a claim in whole or in part, or if the conservator does
not allow or disallow a claim within 60 days after it is presented, the
claimant may:
(a) File in the conservatorship proceeding
a request for a summary determination of the claim by the court, with proof of
service of a copy upon the conservator or the attorney of the conservator; or
(b) Commence a separate action against the
conservator on the claim in a court of competent jurisdiction. The action shall
proceed and be tried as any other action.
(2) If the claimant requests a summary
hearing, the conservator may, within 30 days after service of the request,
notify the claimant in writing that if the claimant desires to prove the claim
the claimant must commence a separate action against the conservator within 60
days after service of the notice. If the claimant fails to commence an action
against the conservator within that time, the claim is barred.
(3) An order allowing or disallowing in
whole or in part a claim that has been considered upon a summary hearing may
not be appealed. [1995 c.664 §56]
125.515
Effect of presentation of claim on statute of limitations.
(1) The following periods of time shall not be part of the time limited for the
commencement of an action under any statute of limitation:
(a) The period of time beginning at the
presentation of a claim and ending 30 days after the claim is disallowed.
(b) If the claim is not allowed or
disallowed within 60 days after it is presented, the period of time beginning
with the presentation of the claim and ending 90 days after the claim is
presented.
(2) For the purpose of any statute of
limitation, an action is considered commenced upon the filing of a request for
a summary determination of a claim that has been disallowed in whole or in
part. [1995 c.664 §57]
125.520
Order of payment of expenses and claims. If it is
likely that the estate of the protected person will be exhausted before all
claims against the estate are paid, the conservator shall give preference in
the payment of claims in the following order of priority:
(1) Funds needed for the current care,
maintenance and support of the protected person and the dependents of the
protected person and claims for the expenses of administration.
(2) Expenses and claims for the care,
maintenance and support of the protected person and the dependents of the
protected person that are not paid under subsection (1) of this section.
(3) Debts and taxes with preference under
federal law.
(4) Taxes with preference under the laws
of this state that are due and payable while possession of the estate of the
protected person is retained by the conservator.
(5) All other claims against the
conservatorship estate. [1995 c.664 §58; 1997 c.717 §7]
(Termination
of Proceedings)
125.525
Termination of conservatorship. An order
terminating a conservatorship shall direct the conservator to deliver the
assets in the possession of the conservator to the protected person:
(1) Immediately, to the extent that the
assets are not required for payment of expenses of administration and debts
incurred by the conservator for the account of the estate of the protected
person; and
(2) Upon entry of an order approving the
final accounting or surcharging the conservator, to the extent of any balance
remaining. [1995 c.664 §59]
125.530
Powers and duties of conservator on death of protected person.
If a protected person dies and the conservator has possession of a will of the
protected person, the conservator shall either deliver the will to the personal
representative named in the will or deliver the will to the court for
safekeeping. If the conservator delivers the will to the court for safekeeping,
the conservator must inform any personal representative named in the will that
the conservator has made that delivery. If it is not possible to inform the
named personal representative, the conservator shall inform the beneficiaries
named in the will of the delivery. The conservator shall retain and administer
the estate for delivery to the personal representative of the decedent or other
persons entitled to the estate. [1995 c.664 §60; 1997
c.717 §8]
125.535
Disposition of small estate. If at any
time the estate of a protected person consists of personal property having a
value not exceeding by more than $10,000 the aggregate amount of unpaid
expenses of administration of the protected estate and claims against the
estate, the conservator, with prior accounting and approval of the court by
order, may pay the expenses and claims from the estate and deliver all the
remaining personal property to the person designated by the court in the order,
to be held, invested or used as ordered by the court. The recipient of the
property shall give a receipt to the conservator. The receipt is a release of
and acquittance to the conservator as to the property
delivered. The conservator shall file in the protective proceeding proper
receipts or other evidence satisfactory to the court showing the delivery. Upon
the court receiving the evidence, the court shall enter an order terminating
the protective proceeding. [1995 c.664 §61]
(Payment
to Foreign Conservator)
125.540
Payment of debt and delivery of property to foreign conservator.
(1) A person indebted to a protected person, or having possession of property
or of an instrument evidencing a debt, stock or chose in action belonging to a
protected person, may make payment or delivery to a conservator, guardian or
other fiduciary appointed by a court of the state where the protected person
resides, upon being presented with proof of appointment and an affidavit made
by the fiduciary stating that:
(a) A protective proceeding relating to
the protected person is not pending in this state; and
(b) The fiduciary is entitled to payment
or to receive delivery.
(2) If the person to whom the affidavit is
presented is not aware of any protective proceeding pending in this state,
payment or delivery in response to the demand and affidavit discharges the
debtor or possessor. [1995 c.664 §62]
TEMPORARY
FIDUCIARIES
125.600
In general. (1) A temporary fiduciary who will
exercise the powers of a guardian may be appointed by the court if the court
makes a specific finding by clear and convincing evidence that the respondent
is incapacitated or a minor, that there is an immediate and serious danger to
the life or health of the respondent, and that the welfare of the respondent
requires immediate action.
(2) A temporary fiduciary who will
exercise the powers of a conservator may be appointed by the court if the court
makes a specific finding by clear and convincing evidence that the respondent
is financially incapable or a minor, that there is an immediate and serious
danger to the estate of the respondent, and that the welfare of the respondent
requires immediate action.
(3) A temporary fiduciary may be appointed
only for a specific purpose and only for a specific period of time. The period
of time may not exceed 30 days. The court may extend the period of the
temporary fiduciary’s authority for an additional period not to exceed 30 days
upon motion and good cause shown. The court may terminate the authority of a
temporary fiduciary at any time.
(4) Except as otherwise provided in this
section and ORS 125.605 and 125.610, a temporary fiduciary is subject to all
provisions of this chapter. [1995 c.664 §63]
125.605
Procedure for appointment of temporary fiduciary.
(1) In addition to the requirements of ORS 125.055, a petition for the
appointment of a temporary fiduciary must contain allegations of the conditions
required under ORS 125.600.
(2) Notice of a petition for the
appointment of a temporary fiduciary must be given to the persons specified in
ORS 125.060 (2) in the manner provided by ORS 125.065 at least two days before
the appointment of a temporary fiduciary. The court may waive the requirement
that notice be given before appointment if the court finds that the immediate
and serious danger requires an immediate appointment. In no event may the
notice required by ORS 125.060 be given more than two days after the
appointment is made.
(3) Notice of a motion for the extension
of a temporary fiduciary’s authority beyond 30 days under ORS 125.600 (3) must
be given to the persons specified in ORS 125.060 (2) in the manner provided by
ORS 125.065 at least two days before the entry of an order granting the
extension.
(4) The court shall appoint a visitor if
the petition seeks appointment of a temporary guardian. A visitor may be
appointed by the court if a petition seeks appointment of a temporary
conservator. Within three days after the appointment of the temporary
fiduciary, the visitor shall conduct an interview of the respondent. The
visitor shall report to the court within five days after the appointment of a
temporary fiduciary is made. The report of the visitor shall be limited to the
conditions alleged to support the appointment of a temporary fiduciary.
(5) If objections are made to the
appointment of a temporary fiduciary or to the extension of a temporary
fiduciary’s authority under ORS 125.600 (3), the court shall hear the
objections within two judicial days after the date on which the objections are
filed. Notwithstanding ORS 21.170, no fee shall be charged to any person filing
an objection to the appointment of a temporary fiduciary or to the extension of
a temporary fiduciary’s authority under ORS 125.600 (3). [1995 c.664 §64; 1997 c.717 §9; 2011 c.595 §130]
125.610
Report of temporary fiduciary. (1) A
temporary fiduciary shall file a report with the court setting out all
activities of the temporary fiduciary under the authority of the appointment.
Except as provided in subsection (2) of this section, the report must be filed:
(a) When the temporary fiduciary completes
the duties of the fiduciary;
(b) When the temporary appointment
expires; or
(c) When the court orders the termination
of the temporary fiduciary’s authority.
(2) If the person appointed as temporary
fiduciary is appointed to act as a permanent fiduciary for the protected
person, the report of the activities of the temporary fiduciary may be included
in the first annual report of the guardian or in the first accounting of the
conservator. [1995 c.664 §65]
OTHER
PROTECTIVE ORDERS
125.650
Other protective orders. (1) The court may enter
protective orders without the appointment of a fiduciary or in addition to
appointment of a fiduciary. A petition for a protective order that does not
seek the appointment of a fiduciary is subject to all requirements prescribed
for petitions for appointment of a fiduciary. A court may enter a protective
order other than appointment of a fiduciary only upon a determination that
grounds exist for the appointment of a fiduciary.
(2) In issuing protective orders under
this section, the court may exercise any power that could be exercised by a
guardian or conservator in a protective proceeding, or any power that could be
exercised by the court in a protective proceeding in which a fiduciary is
appointed.
(3) Before entering a protective order
under this section, the court shall consider the interests of creditors and
dependents of the protected person and whether the protected person needs the continuing
protection of a fiduciary.
(4) The court may appoint a fiduciary
whose authority is limited to a specified time and whose power is limited to
certain acts needed to implement the protective order. A fiduciary appointed
under this subsection need only make such report to the court as the court may
require.
(5) In addition to any other protective
order that may be entered under this section, the court may authorize, direct
or ratify:
(a) Any transaction necessary or desirable
to achieve any security, service or care arrangement meeting the foreseeable
needs of the protected person, including but not limited to payment, delivery,
deposit or retention of funds or property, sale, mortgage, lease or other
transfer of property, entry into an annuity contract, a contract for life care,
a deposit contract, a contract for training and education, or addition to or
establishment of a suitable trust.
(b) Any contract, trust or other
transaction relating to the protected person’s financial affairs or involving
the estate of the person if the court determines that the transaction is in the
best interests of the protected person. [1995 c.664 §66]
PUBLIC
GUARDIANS AND CONSERVATORS
125.700
Office of public guardian and conservator; expenses; termination.
The county court or board of county commissioners of any county:
(1) After making a determination that
there exists a need within the county for a guardian or conservator for persons
who do not have relatives or friends willing to serve as a guardian or conservator
and capable of assuming the duties of guardianship or conservatorship, may
create within the county the office of public guardian and conservator and such
subordinate positions as may be necessary to operate effectively the office of
public guardian and conservator within the county.
(2) May expend county funds for the
purpose of operating the office of public guardian and conservator.
(3) After establishment of the office of
public guardian and conservator within a county, upon the finding that the
county does not need the service of a public guardian and conservator, may
terminate the office. [Formerly 126.905]
Note:
125.700 to 125.730 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 125 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
Note:
Sections 1 and 2, chapter 525, Oregon Laws 2011, provide:
Sec.
1. Public Guardian and Conservator Task Force.
(1) It is the intent of the Legislative Assembly to recreate the Public
Guardian and Conservator Task Force, first established on June 17, 2009, by
section 1, chapter 321, Oregon Laws 2009, and repealed on January 10, 2011, so
that the task force may complete its work as set forth in section 1, chapter
321, Oregon Laws 2009.
(2) The Public Guardian and Conservator
Task Force shall consist of not fewer than 11 members appointed as follows:
(a) The President of the Senate shall
appoint one member from among members of the Senate, who shall cease being a
member of the task force upon ceasing to be a member of the Legislative
Assembly.
(b) The Speaker of the House of
Representatives shall appoint one member from among members of the House of
Representatives, who shall cease being a member of the task force upon ceasing
to be a member of the Legislative Assembly.
(c) The Chief Justice of the Supreme Court
shall appoint one member.
(d) The Board of Governors of the Oregon
State Bar shall appoint one member.
(e) The Governor shall appoint seven
members as follows:
(A) Two from the Department of Human
Services, one of whom has expertise in adult protective services;
(B) One from Disability Rights Oregon or a
similar advocacy organization;
(C) One from the Governor’s Commission on
Senior Services;
(D) One from the Oregon Disabilities
Commission;
(E) One designated by the Long Term Care
Ombudsman; and
(F) One from an established type A or type
B Area Agency on Aging within a planning and service area designated under
section 305 of the federal Older Americans Act.
(f) The Governor shall appoint such other
members as the task force deems necessary.
(3) The task force shall have its first
meeting on or before the later of 90 days after adjournment sine die of the
2011 session of the Seventy-sixth Legislative Assembly or September 30, 2011.
(4) A member may not serve or be employed
as a provider of public guardian or conservator services during the member’s
term of appointment.
(5) The task force shall study and make
recommendations on:
(a) The need for public guardian and
conservator services in this state. In developing its recommendations, the task
force shall consider providing services only to those who cannot afford them or
to those whom the private sector does not serve.
(b) Options and models of public guardian
and conservator programs. In developing its recommendations, the task force
shall consider the most cost-effective approaches to delivering quality public
guardian and conservator services in this state.
(c) The need for, efficacy of, duration
of, resources required to establish and evaluation procedures for interim pilot
programs.
(d) Oregon’s public guardian and
conservator laws in ORS 125.700 to 125.730 and the need for legislative
changes.
(e) The establishment of a permanent
commission with authority to allocate funds to projects, make legislative
recommendations on improvements and perform such other functions as may be
appropriate.
(f) The development of model standards of
practice for a public guardian and conservator program, including standards of
eligibility, standards for program operations and standards of professional
conduct.
(g) Alternative funding sources, public or
private, to aid in financing public guardian and conservator programs and
projects.
(6) The task force shall prepare a
detailed assessment of the costs to implement the task force’s recommendations.
The assessment must address both current and future needs in providing
recommended public guardian and conservator services. Each agency or
organization with a member on the task force shall cooperate with the task
force in assessing and identifying the costs of complying with the task force’s
recommendations.
(7) A majority of the members of the task
force constitutes a quorum for the transaction of business.
(8) Official action by the task force
requires the approval of a majority of the members of the task force.
(9) The task force shall elect one of its
members to serve as chairperson.
(10) If there is a vacancy for any cause,
the appointing authority shall make an appointment to become immediately
effective.
(11) The task force shall meet at times
and places specified by the call of the chairperson or of a majority of the
members of the task force.
(12) The task force may adopt rules
necessary for the operation of the task force.
(13) The task force shall make a report,
and may include recommendations for legislation, to an interim committee of the
Legislative Assembly related to public guardians and conservators no later than
October 1, 2012.
(14) The task force may accept donations
of staff support, office space and equipment from Disability Rights Oregon or
similar advocacy organizations to assist the task force in the performance of
its functions.
(15) Notwithstanding ORS 171.072, members
of the task force who are members of the Legislative Assembly are not entitled
to mileage expenses or a per diem and serve as volunteers on the task force.
Other members of the task force are not entitled to compensation or
reimbursement for expenses and serve as volunteers on the task force.
(16) All agencies of state government as
defined in ORS 174.111 are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to confidentiality,
to furnish such information and advice as the members of the task force
consider necessary to perform their duties. [2011 c.525
§1]
Sec.
2. Section 1 of this 2011 Act is repealed
on July 1, 2013. [2011 c.525 §2]
125.705
Effect of vacancy in office of public guardian and conservator.
The person appointed to the office of public guardian and conservator shall
serve in the office at the pleasure of the appointing authority. If the person
holding the office of public guardian and conservator in a county is removed
from office, dies, becomes incapacitated or resigns, the removal, death,
incapacity or resignation shall operate to remove such public guardian and
conservator as guardian and conservator of all estates then under the
guardianship and conservatorship of the person. [Formerly 126.915]
Note:
See first note under 125.700.
125.710
Powers and duties of public guardian and conservator.
(1) The public guardian and conservator may serve as the guardian or
conservator, or both, of any person of whom the court having probate
jurisdiction in the county may have jurisdiction. The public guardian and
conservator may serve as guardian or conservator upon the petition of any
person or upon the own petition of the public guardian and conservator.
(2) When appointed as guardian or
conservator by the court having probate jurisdiction, the public guardian and
conservator shall serve as provided in ORS chapter 125, ORS 127.005 and 127.015
except as specifically stated to the contrary in ORS 125.700 to 125.730.
(3) The public guardian and conservator in
the discretion of the public guardian and conservator may employ private
attorneys if the fees for the attorneys can be defrayed out of funds of the
guardianship or conservatorship estate. [Formerly 126.925]
Note:
See first note under 125.700.
125.715
Bond; exoneration of surety. (1) Before
entering into office as public guardian and conservator, the person appointed
to the office shall file an official bond in such amount as may be fixed from
time to time by the board of county commissioners or the court having probate
jurisdiction, which bond shall inure to the joint benefit of the several
guardianship or conservatorship estates in which the person is acting as
guardian or conservator and the county. The public guardian and conservator
shall not be required to file bonds in individual estates.
(2) Upon removal of the public guardian
and conservator in accordance with the provisions of ORS 125.705, the surety on
the public guardian and conservator bond shall be exonerated upon order to that
effect of the court having probate jurisdiction in the county. [Formerly
126.935]
Note:
See first note under 125.700.
125.720
Deposit of funds. All funds coming into the
custody of the public guardian and conservator shall be deposited in the county
treasury and disbursed by proper warrant, or shall be deposited in one or more
banks or invested in one or more insured savings and loan associations
authorized to do business within the county, or as provided by ORS 125.445 (5).
[Formerly 126.945]
Note:
See first note under 125.700.
125.725
Reimbursement of public guardian and conservator’s expenses from estate of ward
or protected person. The public guardian and
conservator shall have a claim against the ward’s or protected person’s estate
for reasonable expenses incurred in the execution of the guardianship or
conservatorship and such compensation for services and those of the attorney of
the public guardian and conservator as the court having probate jurisdiction in
the county deems just and reasonable. If the public guardian and conservator is
compensated by the county for services, any reimbursement of expenses or
compensation shall be paid to the county. [Formerly 126.955]
Note:
See first note under 125.700.
125.730
Fees prohibited. No fee shall be charged or
received by any court having probate jurisdiction for the filing of any
petition asking for the appointment of the public guardian and conservator or
for any official service performed by that court in the course of the
guardianship or conservatorship proceedings. [Formerly 126.965]
Note:
See first note under 125.700.
UNIFORM
ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT
(Article
1 - General Provisions)
125.800
Short title. ORS 125.800 to 125.852 may be cited as
the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. [2009
c.179 §1]
Note:
125.800 to 125.852 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 125 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
125.802
Definitions. As used in ORS 125.800 to 125.852:
(1) “Adult” means an individual who has
attained 18 years of age.
(2) “Conservator” means a person appointed
by the court to administer the property of an adult, including a person
appointed under ORS chapter 125.
(3) “Conservatorship order” means an order
appointing a conservator or other order related to management of an adult’s
property.
(4) “Conservatorship proceeding” means a
judicial proceeding in which a conservatorship order is sought or has been
issued.
(5) “Guardian” means a person appointed by
the court to make decisions regarding the person of an adult, including a
person appointed under ORS chapter 125.
(6) “Guardianship order” means an order
appointing a guardian.
(7) “Guardianship proceeding” means a
judicial proceeding in which an order for the appointment of a guardian is
sought or has been issued.
(8) “Incapacitated person” means an adult
for whom a guardian has been appointed.
(9) “Party” means the respondent,
petitioner, guardian, conservator or any other person allowed by the court to
participate in a guardianship or conservatorship proceeding.
(10)(a) “Person” means an individual,
corporation, business trust, estate, trust, partnership, limited liability
company, association, joint venture, public corporation, government or
governmental subdivision, agency or instrumentality or any other legal or
commercial entity.
(b) “Person” as defined in paragraph (a)
of this subsection does not apply in the terms “incapacitated person” or “protected
person.”
(11) “Protected person” means an adult for
whom a conservatorship order has been issued.
(12) “Record” means information that is
inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(13) “Respondent” means an adult for whom
a conservatorship order or the appointment of a guardian is sought.
(14) “State” means a state of the United States,
the District of Columbia, Puerto Rico, the United States Virgin Islands, a
federally recognized Indian tribe or any territory or insular possession
subject to the jurisdiction of the United States. [2009 c.179
§2]
Note:
See note under 125.800.
125.805
International application. A court of this state may treat
a foreign country as if it were a state for the purpose of applying ORS 125.800
to 125.840, 125.850 and 125.852. [2009 c.179 §3]
Note:
See note under 125.800.
125.807
Communication between courts. (1) A court
of this state may communicate with a court in another state concerning a
proceeding arising under ORS 125.800 to 125.852. The court may allow the
parties to participate in the communication. Except as provided in subsection
(2) of this section, the court shall make a record of the communication. The
record may be limited to the fact that the communication occurred.
(2) Courts may communicate concerning
schedules, calendars, court records and other administrative matters without
making a record. [2009 c.179 §4]
Note:
See note under 125.800.
125.810
Cooperation between courts. (1) In a guardianship or
conservatorship proceeding in this state, a court of this state may request the
appropriate court of another state to do any of the following:
(a) Hold an evidentiary hearing;
(b) Order a person in that state to
produce evidence or give testimony pursuant to procedures of that state;
(c) Order that an evaluation or assessment
be made of the respondent;
(d) Order any appropriate investigation of
a person involved in a proceeding;
(e) Forward to the court of this state a
certified copy of the transcript or other record of a hearing under paragraph
(a) of this subsection or any other proceeding, any evidence otherwise produced
under paragraph (b) of this subsection and any evaluation or assessment
prepared in compliance with an order under paragraph (c) or (d) of this
subsection;
(f) Issue any order necessary to assure
the appearance in the proceeding of a person whose presence is necessary for
the court to make a determination, including the respondent or the
incapacitated or protected person; or
(g) Issue an order authorizing the release
of medical, financial, criminal or other relevant information in that state,
including protected health information as defined in 45 C.F.R.
164.504.
(2) If a court of another state in which a
guardianship or conservatorship proceeding is pending requests assistance of
the kind provided in subsection (1) of this section, a court of this state has
jurisdiction for the limited purpose of granting the request or making
reasonable efforts to comply with the request. [2009 c.179
§5]
Note:
See note under 125.800.
125.812
Taking testimony in another state. (1) In a
guardianship or conservatorship proceeding, in addition to other procedures
that may be available, testimony of a witness who is located in another state
may be offered by deposition or other means allowable in this state for
testimony taken in another state. The court on its own motion may order that
the testimony of a witness be taken in another state and may prescribe the
manner in which and the terms upon which the testimony is to be taken.
(2) In a guardianship or conservatorship
proceeding, a court in this state may permit a witness located in another state
to be deposed or to testify by telephone or audiovisual or other electronic
means. A court of this state shall cooperate with the court of the other state
in designating an appropriate location for the deposition or testimony. [2009 c.179 §6]
Note:
See note under 125.800.
(Article
2 - Jurisdiction)
125.815
Definitions; significant-connection factors. (1) As
used in ORS 125.815 to 125.835:
(a) “Emergency” means a circumstance
described in ORS 125.600 (1), and for which the appointment of a guardian is
necessary because no other person has authority and is willing to act on the
respondent’s behalf.
(b) “Home state” means the state in which
the respondent was physically present, including any period of temporary
absence, for at least six consecutive months immediately before the filing of a
petition for a conservatorship order or the appointment of a guardian, or if
none, the state in which the respondent was physically present, including any
period of temporary absence, for at least six consecutive months ending within
the six months prior to the filing of the petition.
(c) “Significant-connection state” means a
state, other than the home state, with which a respondent has a significant
connection other than mere physical presence and in which substantial evidence
concerning the respondent is available.
(2) In determining under ORS 125.820 and
125.837 (5) whether a respondent has a significant connection with a particular
state, the court shall consider:
(a) The location of the respondent’s
family and other persons required to be notified of the guardianship or
conservatorship proceeding;
(b) The length of time the respondent at
any time was physically present in the state and the duration of any absence;
(c) The location of the respondent’s
property; and
(d) The extent to which the respondent has
ties to the state such as voting registration, state or local tax return
filing, vehicle registration, driver license, social relationship and receipt
of services. [2009 c.179 §7]
Note:
See note under 125.800.
125.817
Exclusive basis. ORS 125.815 to 125.835 provide
the exclusive jurisdictional basis for a court of this state to appoint a
guardian or issue a conservatorship order for an adult under ORS 125.800 to
125.852. [2009 c.179 §8]
Note:
See note under 125.800.
125.820
Jurisdiction. A court of this state has jurisdiction
to appoint a guardian or issue a conservatorship order for a respondent if:
(1) This state is the respondent’s home
state;
(2) On the date the petition is filed,
this state is a significant-connection state and:
(a) The respondent does not have a home
state or a court of the respondent’s home state has declined to exercise
jurisdiction because this state is a more appropriate forum; or
(b) The respondent has a home state, a
petition for an appointment or order is not pending in a court of that state or
another significant-connection state and, before the court makes the
appointment or issues the order:
(A) A petition for an appointment or order
is not filed in the respondent’s home state;
(B) An objection to the court’s
jurisdiction is not filed by a person required to be notified of the
proceeding; and
(C) The court in this state concludes that
it is an appropriate forum under the factors set forth in ORS 125.827;
(3) This state does not have jurisdiction
under either subsection (1) or (2) of this section, the respondent’s home state
and all significant-connection states have declined to exercise jurisdiction
because this state is the more appropriate forum and jurisdiction in this state
is consistent with the Oregon and United States Constitutions; or
(4) The requirements for special
jurisdiction under ORS 125.822 are met. [2009 c.179 §9]
Note:
See note under 125.800.
125.822
Special jurisdiction. (1) A court of this state
lacking jurisdiction under ORS 125.820 has special jurisdiction to do any of
the following:
(a) Appoint a guardian in an emergency as
provided for the appointment of a temporary fiduciary under ORS 125.600 for a
respondent who is physically present in this state;
(b) Issue a conservatorship order with
respect to real or tangible personal property located in this state; or
(c) Appoint a guardian or conservator for
an incapacitated or protected person for whom a provisional order to transfer
the proceeding from another state has been issued under procedures similar to
ORS 125.837.
(2) If a petition was filed for the
appointment of a temporary fiduciary under ORS 125.600 and this state was not
the respondent’s home state on the date the petition was filed, the court shall
dismiss the proceeding at the request of the court of the home state, if any,
whether the dismissal is requested before or after the emergency appointment. [2009
c.179 §10]
Note:
See note under 125.800.
125.825
Exclusive and continuing jurisdiction. Except as
provided in ORS 125.822, a court that has appointed a guardian or issued a
conservatorship order consistent with ORS 125.800 to 125.852 has exclusive and
continuing jurisdiction over the proceeding until the proceeding is terminated
by the court or the appointment or order expires by its own terms. [2009 c.179 §11]
Note:
See note under 125.800.
125.827
Appropriate forum. (1) A court of this state having
jurisdiction under ORS 125.820 to appoint a guardian or issue a conservatorship
order may decline to exercise its jurisdiction if it determines at any time
that a court of another state is a more appropriate forum.
(2) If a court of this state declines to
exercise its jurisdiction under subsection (1) of this section, the court shall
either dismiss or stay the proceeding. The court may impose any condition the
court considers just and proper, including the condition that a petition for
the appointment of a guardian or issuance of a conservatorship order be filed
promptly in another state.
(3) In determining whether it is an
appropriate forum, the court shall consider all relevant factors, including:
(a) Any expressed preference of the
respondent;
(b) Whether abuse, neglect or exploitation
of the respondent has occurred or is likely to occur and which state could best
protect the respondent from the abuse, neglect or exploitation;
(c) The length of time the respondent was
physically present in or was a legal resident of this or another state;
(d) The distance of the respondent from
the court in each state;
(e) The financial circumstances of the
respondent’s estate;
(f) The nature and location of the
evidence;
(g) The ability of the court in each state
to decide the issue expeditiously and the procedures necessary to present
evidence;
(h) The familiarity of the court of each
state with the facts and issues in the proceeding; and
(i) If an
appointment were made, the court’s ability to monitor the conduct of the
guardian or conservator. [2009 c.179 §12]
Note:
See note under 125.800.
125.830
Jurisdiction declined by reason of conduct. (1) If
at any time a court of this state determines that it acquired jurisdiction to
appoint a guardian or issue a conservatorship order because of unjustifiable
conduct, the court may:
(a) Decline to exercise jurisdiction;
(b) Exercise jurisdiction for the limited
purpose of fashioning an appropriate remedy to ensure the health, safety and
welfare of the respondent or the protection of the respondent’s property or
prevent a repetition of the unjustifiable conduct, including staying the
proceeding until a petition for the appointment of a guardian or issuance of a
conservatorship order is filed in a court of another state having jurisdiction;
or
(c) Continue to exercise jurisdiction
after considering:
(A) The extent to which the respondent and
all persons required to be notified of the proceedings have acquiesced in the
exercise of the court’s jurisdiction;
(B) Whether the court is a more
appropriate forum than the court of any other state under the factors set forth
in ORS 125.827 (3); and
(C) Whether the court of any other state
would have jurisdiction under factual circumstances in substantial conformity
with the jurisdictional standards of ORS 125.820.
(2) If a court of this state determines
that it acquired jurisdiction to appoint a guardian or issue a conservatorship
order because a party seeking to invoke its jurisdiction engaged in
unjustifiable conduct, it may assess against that party necessary and
reasonable expenses, including attorney fees, investigative fees, court costs,
communication expenses, witness fees and expenses and travel expenses. The
court may not assess fees, costs or expenses of any kind against this state or
a governmental subdivision, agency or instrumentality of this state unless
authorized by law other than ORS 125.800 to 125.852. [2009 c.179
§13]
Note:
See note under 125.800.
125.832
Notice of proceeding. If a petition for the
appointment of a guardian or issuance of a conservatorship order is brought in
this state and this state was not the respondent’s home state on the date the
petition was filed, in addition to complying with the notice requirements of
this state, notice of the petition must be given to those persons who would be
entitled to notice of the petition if a proceeding were brought in the
respondent’s home state. The notice must be given in the same manner as notice
is required to be given in this state. [2009 c.179 §14]
Note:
See note under 125.800.
125.835
Proceedings in more than one state. Except for a
petition for the appointment of a temporary fiduciary under ORS 125.600 or
issuance of a conservatorship order limited to property located in this state
under ORS 125.822 (1)(a) or (b), if a petition for the appointment of a
guardian or issuance of a conservatorship order is filed in this state and in
another state and neither petition has been dismissed or withdrawn, the
following rules apply:
(1) If the court in this state has
jurisdiction under ORS 125.820, it may proceed with the case unless a court in
another state acquires jurisdiction under provisions similar to ORS 125.820
before the appointment or issuance of the order.
(2) If the court in this state does not
have jurisdiction under ORS 125.820, whether at the time the petition is filed
or at any time before the appointment or issuance of the order, the court shall
stay the proceeding and communicate with the court in the other state. If the
court in the other state has jurisdiction, the court in this state shall dismiss
the petition unless the court in the other state determines that the court in
this state is a more appropriate forum. [2009 c.179 §15]
Note:
See note under 125.800.
(Article
3 - Transfer)
125.837
Transfer of guardianship or conservatorship to another state.
(1) A guardian or conservator appointed in this state may petition the court to
transfer the guardianship or conservatorship to another state.
(2) Notice of a petition under subsection
(1) of this section must be given to the persons that would be entitled to
notice of a petition in this state for the appointment of a guardian or
conservator.
(3) On the court’s own motion or on
request of the guardian or conservator, the incapacitated or protected person,
or other person required to be notified of the petition, the court shall hold a
hearing on a petition filed pursuant to subsection (1) of this section.
(4) The court shall issue an order
provisionally granting a petition to transfer a guardianship and shall direct
the guardian to petition for guardianship in the other state if the court is
satisfied that the guardianship will be accepted by the court in the other
state and the court finds that:
(a) The incapacitated person is physically
present in or is reasonably expected to move permanently to the other state;
(b) An objection to the transfer has not
been made or, if an objection has been made, the objector has not established
that the transfer would be contrary to the interests of the incapacitated
person; and
(c) Plans for care and services for the
incapacitated person in the other state are reasonable and sufficient.
(5) The court shall issue a provisional
order granting a petition to transfer a conservatorship and shall direct the
conservator to petition for conservatorship in the other state if the court is
satisfied that the conservatorship will be accepted by the court of the other
state and the court finds that:
(a) The protected person is physically
present in or is reasonably expected to move permanently to the other state, or
the protected person has a significant connection to the other state
considering the factors in ORS 125.815 (2);
(b) An objection to the transfer has not
been made or, if an objection has been made, the objector has not established
that the transfer would be contrary to the interests of the protected person;
and
(c) Adequate arrangements will be made for
management of the protected person’s property.
(6) The court shall issue a final order
confirming the transfer and terminating the guardianship or conservatorship
upon its receipt of:
(a) A provisional order accepting the
proceeding from the court to which the proceeding is to be transferred which is
issued under provisions similar to ORS 125.840; and
(b) The documents required to terminate a
guardianship or conservatorship in this state. [2009 c.179
§16]
Note:
See note under 125.800.
125.840
Accepting guardianship or conservatorship transferred from another state.
(1) To confirm transfer of a guardianship or conservatorship transferred to
this state under provisions similar to ORS 125.837, the guardian or conservator
must petition the court in this state to accept the guardianship or
conservatorship. The petition must include a certified copy of the other state’s
provisional order of transfer.
(2) Notice of a petition under subsection
(1) of this section must be given to those persons that would be entitled to
notice if the petition were a petition for the appointment of a guardian or
issuance of a conservatorship order in both the transferring state and this
state. The notice must be given in the same manner as notice is required to be
given in this state.
(3) On the court’s own motion or on
request of the guardian or conservator, the incapacitated or protected person,
or other person required to be notified of the proceeding, the court shall hold
a hearing on a petition filed pursuant to subsection (1) of this section.
(4) The court shall issue an order
provisionally granting a petition filed under subsection (1) of this section
unless:
(a) The court determines that transfer of
the proceeding would be contrary to the interests of the incapacitated or
protected person; or
(b) The guardian or conservator is
ineligible for appointment in this state.
(5) The court shall issue a final order
accepting the proceeding and appointing the guardian or conservator as guardian
or conservator in this state upon its receipt from the court from which the
proceeding is being transferred of a final order issued under provisions
similar to ORS 125.837 transferring the proceeding to this state.
(6) Not later than 90 days after issuance
of a final order accepting transfer of a guardianship or conservatorship, the
court shall determine whether the guardianship or conservatorship needs to be
modified to conform to the law of this state.
(7) In granting a petition under this
section, the court shall recognize a guardianship or conservatorship order from
the other state, including the determination of the incapacitated or protected
person’s incapacity and the appointment of the guardian or conservator.
(8) The denial by a court of this state of
a petition to accept a guardianship or conservatorship transferred from another
state does not affect the ability of the guardian or conservator to seek
appointment as guardian or conservator in this state under ORS chapter 125 if
the court has jurisdiction to make an appointment other than by reason of the
provisional order of transfer. [2009 c.179 §17]
Note:
See note under 125.800.
(Article
4 - Registration and Recognition of Orders from Other States)
125.842
Registration of guardianship orders; fee. If a
guardian has been appointed in another state and a petition for the appointment
of a guardian is not pending in this state, the guardian appointed in the other
state, after giving notice to the appointing court of an intent to register,
may register the guardianship order in this state by filing as a foreign
judgment in a court, in any appropriate county of this state, certified copies
of the order and letters of office. The person registering the order, and any
other person making an appearance in the proceeding, must pay the filing fee
established under ORS 21.145. [2009 c.179 §18; 2011 c.595 §36]
Note:
Section 38, chapter 595, Oregon Laws 2011, provides:
Sec.
38. The amendments to ORS 24.115, 24.135,
109.787, 110.426, 125.842 and 125.845 by sections 32 to 37 of this 2011 Act
apply only to proceedings commenced on or after October 1, 2011. [2011 c.595 §38]
Note:
See note under 125.800.
125.845
Registration of conservatorship orders; fee. If a
conservator has been appointed in another state and a petition for a
conservatorship order is not pending in this state, the conservator appointed
in the other state, after giving notice to the appointing court of an intent to
register, may register the conservatorship order in this state by filing as a
foreign judgment in a court of this state, in any county in which property
belonging to the protected person is located, certified copies of the order and
letters of office and of any bond. The person registering the order, and any
other person making an appearance in the proceeding, must pay the filing fee
established under ORS 21.145. [2009 c.179 §19; 2011 c.595 §37]
Note:
See note under 125.800.
Note:
See first note under 125.842.
125.847
Effect of registration. (1) Upon registration of a
guardianship or conservatorship order from another state, the guardian or
conservator may exercise in this state all powers authorized in the order of
appointment except as prohibited under the laws of this state, including
maintaining actions and proceedings in this state and, if the guardian or
conservator is not a resident of this state, subject to any conditions imposed
upon nonresident parties.
(2) A court of this state may grant any
relief available under ORS 125.800 to 125.852 and other law of this state to
enforce a registered order. [2009 c.179 §20]
Note:
See note under 125.800.
(Article
5 - Miscellaneous Provisions)
125.850
Uniformity of application and construction. In
applying and construing ORS 125.800 to 125.852, consideration must be given to
the need to promote uniformity of the law with respect to its subject matter
among states that enact it. [2009 c.179 §21]
Note:
See note under 125.800.
125.852
Relation to Electronic Signatures in Global and National Commerce Act.
ORS 125.800 to 125.852 modify, limit and supersede the federal Electronic
Signatures in Global and National Commerce Act, 15 U.S.C.
7001 et seq., but do not modify, limit or supersede section 1(c) of that Act,
15 U.S.C. 7001(c), or authorize electronic delivery
of any of the notices described in section 3(b) of that Act, 15 U.S.C. 7003(b). [2009 c.179 §22]
Note:
See note under 125.800.
_______________