2005 Oregon Code - Chapter 124 :: TITLE 13
Chapter 124 Abuse Prevention and Reporting; Civil Action for Abuse
2005 EDITION
TITLE 13
PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY; TRUSTS
Chapter 124. Abuse Prevention and Reporting; Civil Action for Abuse
125. Protective Proceedings
126. Property Held for the Benefit of Minors; Uniform Transfers to Minors Act
127. Powers of Attorney; Advance Directives for Health Care; Declarations for Mental Health Treatment; Death with Dignity
128. Trusts; Charitable Activities
129. Uniform Principal and Income Act
130. Uniform Trust Code
_______________
Chapter 124 Abuse Prevention and Reporting; Civil Action for Abuse
2005 EDITION
ABUSE PREVENTION; REPORTING; CIVIL ACTIONS
PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY; TRUSTS
ELDERLY PERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT
124.005 Definitions for ORS 124.005 to 124.040
124.010 Petition for relief; time limitation; information to be provided petitioner; exception
124.012 Filing of petitions; where contempt proceedings must be conducted
124.015 Hearing upon request of respondent; relief; settlement; effect of proceedings
124.020 Ex parte hearing; required findings; judicial relief; forms; request by respondent for hearing
124.022 Service of restraining order by sheriff
124.024 Notice to be given by guardian petitioner
124.025 Removal of personal effects; accompanying peace officer; limitation on liability
124.030 Proof of service of restraining order to be delivered to sheriff; entry in LEDS; expiration of restraining order; release of respondent pending hearing
124.035 Renewal of restraining order
124.040 Short title
REPORTING OF ABUSE OF ELDERLY PERSONS
124.050 Definitions for ORS 124.050 to 124.095
124.055 Policy
124.060 Duty of officials to report
124.065 Method of reporting; content; notice to law enforcement agency and to department
124.070 Duty to investigate; notice to department; evaluation
124.075 Immunity of person making report in good faith; identity confidential
124.080 Photographing of victim; photograph as record
124.085 Catalogue of abuse records; confidentiality
124.090 Confidentiality of records; exceptions
124.095 Spiritual treatment not abuse
CIVIL ACTION FOR ABUSE OF VULNERABLE PERSON
124.100 Definitions for ORS 124.100 to 124.140; action authorized; relief; qualifications for bringing action; service on Attorney General
124.105 Physical abuse subject to action
124.110 Financial abuse subject to action
124.115 Persons not subject to action
124.120 Relief available
124.125 Action by Attorney General, Department of Human Services or district attorney; investigative demands
124.130 Statute of limitation
124.135 Remedies not exclusive
124.140 Estoppel based on criminal conviction
PENALTIES
124.990 Criminal penalty
ELDERLY PERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT
124.005
Definitions for ORS 124.005 to 124.040. As used in ORS 124.005 to 124.040:
(1) Abuse means one or more of the following:
(a) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury.
(b) Neglect that leads to physical harm through withholding of services necessary to maintain health and well-being.
(c) Abandonment, including desertion or willful forsaking of an elderly person or a person with disabilities or the withdrawal or neglect of duties and obligations owed an elderly person or a person with disabilities by a caregiver or other person.
(d) Willful infliction of physical pain or injury.
(e) Use of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person or person with disabilities.
(f) Causing any sweepstakes promotion to be mailed to an elderly person or a person with disabilities who had received sweepstakes promotional material in the United States mail, spent more than $500 in the preceding year on any sweepstakes promotions, or any combination of sweepstakes promotions from the same service, regardless of the identities of the originators of the sweepstakes promotion and who represented to the court that the person felt the need for the courts assistance to prevent the person from incurring further expense.
(g) Wrongfully taking or appropriating money or property, or knowingly subjecting an elderly person or person with disabilities to alarm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the elderly person or person with disabilities to believe that the threat will be carried out.
(h) Sexual contact with a nonconsenting elderly person or person with disabilities or with an elderly person or person with disabilities considered incapable of consenting to a sexual act as described in ORS 163.315. As used in this paragraph, sexual contact has the meaning given that term in ORS 163.305.
(2) Elderly person means any person 65 years of age or older who is not subject to the provisions of ORS 441.640 to 441.665.
(3) Guardian petitioner means a guardian or guardian ad litem for an elderly person or a person with disabilities who files a petition under ORS 124.005 to 124.040 on behalf of the elderly person or person with disabilities.
(4) Interfere means to interpose in a way that hinders or impedes.
(5) Intimidate means to compel or deter conduct by a threat.
(6) Menace means to act in a threatening manner.
(7) Molest means to annoy, disturb or persecute with hostile intent or injurious effect.
(8) Person with disabilities means a person described in:
(a) ORS 410.040 (5)(b); or
(b) ORS 410.715.
(9) Petitioner means an elderly person or a person with disabilities who files a petition under ORS 124.005 to 124.040.
(10) Sweepstakes means:
(a) A procedure for awarding a prize that is based on chance;
(b) A procedure in which a person is required to purchase anything, pay anything of value or make a donation as a condition of winning a prize or of receiving or obtaining information about a prize; or
(c) A procedure that is advertised in a way that creates a reasonable impression that a payment of anything of value, purchase of anything or making a donation is a condition of winning a prize or receiving or obtaining information about a prize.
(11) Sweepstakes promotion means an offer to participate in a sweepstakes. [1995 c.666 §§3,3a; 1999 c.738 §1; 1999 c.875 §6; 2003 c.257 §1a; 2003 c.264 §1; 2005 c.671 §1]
124.010
Petition for relief; time limitation; information to be provided petitioner;
exception. (1)(a) Except as provided in subsection (8) of this section, an
elderly person or a person with disabilities who has been the victim of abuse
within the preceding 180 days or a guardian or guardian ad litem of an elderly
person or a person with disabilities who has been the victim of abuse within
the preceding 180 days may petition the circuit court for relief under ORS
124.005 to 124.040, if the elderly person or person with disabilities is in
immediate and present danger of further abuse from the abuser.
(b) The elderly person or person with disabilities or the guardian or guardian ad litem of the elderly person or person with disabilities may seek relief by filing a petition with the circuit court alleging that the elderly person or person with disabilities is in immediate and present danger of further abuse from the respondent, alleging that the elderly person or person with disabilities has been the victim of abuse committed by the respondent within the 180 days preceding the filing of the petition and describing the nature of the abuse and the approximate dates thereof. The abuse must have occurred not more than 180 days before the filing of the petition.
(c) A petitioner or guardian petitioner is not required to provide in the petition information regarding the relationship between the elderly person or person with disabilities and the respondent.
(d) Allegations in the petition must be made under oath or affirmation. The circuit court has jurisdiction over all proceedings under ORS 124.005 to 124.040.
(2) The petitioner or guardian petitioner has the burden of proving a claim under ORS 124.005 to 124.040 by a preponderance of the evidence.
(3) The right to petition for relief under ORS 124.005 to 124.040 is not affected by the fact that the elderly person or person with disabilities has left the residence or household to avoid abuse.
(4) A petition filed under ORS 124.005 to 124.040 must disclose the existence of any Elderly Persons and Persons With Disabilities Abuse Prevention Act proceedings, any Abuse Prevention Act proceedings, any marital annulment, dissolution or separation proceedings pending between the parties or any protective proceedings under ORS chapter 125.
(5) Upon the filing of a petition under ORS 124.005 to 124.040, the clerk of the court shall give the petitioner or guardian petitioner information provided by the Department of Human Services about local adult protective services, domestic violence shelters and local legal services available.
(6) For purposes of computing the 180-day period in this section and ORS 124.020, any time during which the respondent is incarcerated or has a principal residence more than 100 miles from the principal residence of the elderly person or person with disabilities is not counted as part of the 180-day period.
(7) If a guardian or guardian ad litem files a petition under this section on behalf of an elderly person or a person with disabilities, the elderly person or person with disabilities retains the right to:
(a) Contact and retain counsel;
(b) Have access to personal records;
(c) File objections to the restraining order;
(d) Request a hearing; and
(e) Present evidence and cross-examine witnesses at any hearing.
(8) An elderly person or a person with disabilities may not file a petition under ORS 124.005 to 124.040 against a guardian or conservator for the elderly person or the person with disabilities. [1995 c.666 §4; 1999 c.738 §2; 1999 c.1052 §11; 2003 c.257 §2a; 2003 c.264 §2; 2005 c.671 §2]
124.012
Filing of petitions; where contempt proceedings must be conducted. A
petition under ORS 124.010 may be filed only in a county in which the
petitioner or respondent resides. Any contempt proceedings for violation of a
restraining order issued under ORS 124.005 to 124.040 must be conducted by the
court that issued the order, or by the circuit court for a county in which a
violation of the restraining order occurs. If contempt proceedings are
initiated in the circuit court for a county in which a violation of the
restraining order occurs, the person initiating the contempt proceedings shall
file with the court a copy of the restraining order, certified by the clerk of
the court that issued the order. Upon filing of the certified copy of the
restraining order, the court shall enforce the order as though that court had
issued the order. [2003 c.289 §4]
124.015
Hearing upon request of respondent; relief; settlement; effect of proceedings.
(1) The court shall hold a hearing within 21 days following the request, and
may cancel or change any order issued under ORS 124.020 if the respondent,
elderly person or person with disabilities requests a hearing pursuant to ORS
124.020 (9).
(2) In addition to the relief granted under ORS 124.020, the court, in a hearing held pursuant to subsection (1) of this section, may:
(a) Require either party to move from any residence whose title or right to occupy such premises is held jointly by the parties; and
(b) Assess against any party reasonable attorney fees and such costs as may be incurred in the hearing.
(3)(a) If the respondent is represented by an attorney, time for the hearing may be extended for up to five days at the request of the petitioner or guardian petitioner so that the petitioner or guardian petitioner may seek representation.
(b) If the elderly person or person with disabilities is represented by an attorney, time for the hearing may be extended for up to five days at the request of the respondent or guardian petitioner so that the respondent or guardian petitioner may seek representation.
(4) The court may approve any consent agreement to bring about a cessation of abuse of the parties. However, the court may not approve a term in a consent agreement that provides for restraint of a party to the agreement unless the other party petitioned for and was granted an order under ORS 124.010. An order or consent agreement made under this section may be amended at any time and shall continue in effect for a period of one year from the date of the order issued under ORS 124.020.
(5) An order or agreement made under ORS 124.005 to 124.040 or ORS 133.310 and 133.381 may not in any manner affect title to any real property.
(6) No undertaking shall be required in any proceeding under ORS 124.005 to 124.040.
(7) Any proceeding under ORS 124.005 to 124.040 shall be in addition to and not in lieu of any other available civil or criminal remedies.
(8) Notwithstanding any right or remedy established in ORS chapter 90 or ORS 105.105 to 105.168, a petitioner or guardian petitioner may enforce an order issued under ORS 124.005 to 124.040. [1995 c.666 §§5,5a; 2003 c.257 §3a; 2005 c.671 §9]
124.020
Ex parte hearing; required findings; judicial relief; forms; request by
respondent for hearing. (1) When a petitioner or guardian petitioner files
a petition under ORS 124.010, the circuit court shall hold an ex parte hearing
in person or by telephone on the day the petition is filed or on the following
judicial day. Upon a showing that the elderly person or person with
disabilities named in the petition has been the victim of abuse committed by
the respondent within 180 days preceding the filing of the petition and that
there is an immediate and present danger of further abuse to the elderly person
or person with disabilities, the court shall, if requested by the petitioner or
guardian petitioner, order, for a period of one year or until the order is
withdrawn or amended, whichever is sooner:
(a) That the respondent be required to move from the residence of the elderly person or person with disabilities, if in the sole name of the elderly person or person with disabilities or if jointly owned or rented by the elderly person or person with disabilities and the respondent, or if the parties are married to each other;
(b) That a peace officer accompany the party who is leaving or has left the parties residence to remove essential personal effects of the party;
(c) That the respondent be restrained from abusing, intimidating, molesting, interfering with or menacing the elderly person or person with disabilities, or attempting to abuse, intimidate, molest, interfere with or menace the elderly person or person with disabilities;
(d) That the respondent be restrained from entering, or attempting to enter, on any premises when it appears to the court that such restraint is necessary to prevent the respondent from abusing, intimidating, molesting, interfering with or menacing the elderly person or person with disabilities;
(e) That the respondent be:
(A) Restrained, effective on a date not less than 150 days from the date of the order, from mailing the elderly person or person with disabilities any sweepstakes promotion;
(B) Required to remove the elderly person or person with disabilities from the respondents sweepstakes promotion mailing list or place the elderly person or person with disabilities on a list of persons to whom sweepstakes promotions may not be mailed; and
(C) Required to promptly refund any payment received in any form from the elderly person or person with disabilities after the date the order is entered by the court; or
(f) Except as provided in subsection (2) of this section, other relief that the court considers necessary to provide for the safety and welfare of the elderly person or person with disabilities.
(2)(a) If the court finds that the elderly person or person with disabilities has been the victim of abuse as defined in ORS 124.005 (1)(g), the court may order only relief that the court considers necessary to prevent or remedy the wrongful taking or appropriation of the money or property of the elderly person or person with disabilities, including but not limited to:
(A) Directing the respondent to refrain from exercising control over the money or property of the elderly person or person with disabilities;
(B) Requiring the respondent to return custody or control of the money or property of the elderly person or person with disabilities to the elderly person or person with disabilities;
(C) Requiring the respondent to follow the instructions of the guardian or conservator of the elderly person or person with disabilities; or
(D) Prohibiting the respondent from transferring the money or property of the elderly person or person with disabilities to any person other than the elderly person or person with disabilities.
(b) The court may not use a restraining order issued under ORS 124.005 to 124.040:
(A) To allow any person other than the elderly person or person with disabilities to assume responsibility for managing any of the money or property of the elderly person or person with disabilities; or
(B) For relief that is more appropriately obtained in a protective proceeding filed under ORS chapter 125 including, but not limited to, giving control and management of the financial accounts or property of the elderly person or person with disabilities for any purpose other than the relief granted under paragraph (a) of this subsection.
(3) The showing required under subsection (1) of this section may be made by testimony of:
(a) The elderly person or person with disabilities;
(b) The guardian or guardian ad litem of the elderly person or person with disabilities;
(c) Witnesses to the abuse; or
(d) Adult protective services workers who have conducted an investigation.
(4) Immediate and present danger under this section includes but is not limited to situations in which the respondent has recently threatened the elderly person or person with disabilities with additional abuse.
(5) When a guardian petitioner files a petition on behalf of an elderly person or a person with disabilities, the guardian petitioner shall provide information about the elderly person or person with disabilities and not about the guardian petitioner where the petition, order or related forms described in subsection (6) of this section require information about the petitioner.
(6) An instruction brochure shall be available from the clerk of the court explaining the rights set forth under ORS 124.005 to 124.040. The petition, order and related forms shall be available from the clerk of the court and shall be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF ____________
______, ) PETITION FOR
Petitioner ) RESTRAINING ORDER
(your name) ) TO PREVENT ABUSE
) OF ELDERLY
) PERSONS OR
) PERSONS WITH
vs. ) DISABILITIES
)
) NO. _____
______, )
Respondent )
(person to be )
restrained) )
YOU MUST PROVIDE COMPLETE AND TRUTHFUL INFORMATION. IF YOU DO NOT, THE COURT MAY DISMISS ANY RESTRAINING ORDER AND MAY ALSO HOLD YOU IN CONTEMPT OF COURT.
If you wish to have your residential address or telephone number withheld from respondent, use a contact address and telephone number so the Court and the Sheriff can reach you if necessary.
ATTACH ADDITIONAL PAGES
IF NECESSARY.
I am the Petitioner and I state that the following information is true:
I am a resident of ___________ County, Oregon.
Respondent is a resident of ________ County, Oregon.
I am either 65 years of age or older (I am ______ years of age) or I am a person with disabilities (CIRCLE THE ONE THAT DESCRIBES YOU).
1. CHECK AND FILL OUT ANY SECTION(S) that apply to you and respondent:
__ A. Respondent and I have been living together since______, ___(year).
__ B. Respondent and I lived together from______, ___(year), to________, ___(year).
__ C. I have been under the care of respondent since______, ___(year).
__ D. I was under the care of respondent from______, ___(year), to________, ___(year).
__ E. Respondent has sent me sweepstakes promotions.
__ F. None of the above.
2. To qualify for a restraining order, respondent must have done one or more of the following:
Within the last 180 days, respondent has:
__ A. Caused me physical injury by other than accidental means.
__ B. Attempted to cause me physical injury by other than accidental means.
__ C. Placed me in fear of immediate serious physical injury.
__ D. Caused me physical harm by withholding services necessary to maintain my health and well-being.
__ E. Abandoned or deserted me by withdrawing or neglecting to perform duties and obligations.
__ F. Used derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to place me in fear of significant physical or emotional harm.
__ G. Sent me sweepstakes promotions, and I feel the need for the courts assistance to protect me from further expense. I am an elderly person or a person with disabilities. In the past year, I spent more than $500 on sweepstakes promotions that I received in the United States mail.
__ H. Wrongfully taken or appropriated my money or property, or alarmed me by conveying a threat to me that my money or property would be wrongfully taken or appropriated, which I reasonably believed would be carried out.
__ I. Had nonconsensual sexual contact with me or sexual contact to which I was incapable of consenting.
NOTICE TO PETITIONER: Sweepstakes companies are allowed up to 150 days to stop sending you sweepstakes entry materials. For a time after the court issues a restraining order, you may receive additional solicitations from respondent. However, beginning on the date the restraining order is issued, the respondent must immediately reject any further orders from you and must return any money you send to the company after the date the restraining order is issued.
3. Any period of time after the abuse occurred during which respondent was incarcerated (in jail or prison) or lived more than 100 miles from your home is not counted as part of the 180-day period, and you may still be eligible for a restraining order.
Respondent was incarcerated from___________, ___(year), to_________, ___(year).
Respondent lived more than 100 miles from my home from________, ___(year), to________, ___(year).
4. Did the abuse happen within the last 180 days not including the times respondent was incarcerated (in jail or prison) or lived more than 100 miles from your home? Yes No
Date and location of abuse:
______________________
______________________
How did respondent injure or threaten to injure you?
______________________
______________________
______________________
5. Are there incidents other than those described in question 4 above, in which respondent injured or threatened to injure you? If yes, explain:
______________________
______________________
______________________
6. The abuse I am complaining about was witnessed by _________ (affidavit attached). Other persons with knowledge of the abuse are _________ (affidavit attached).
7. I am in immediate and present danger of further abuse by respondent because:
______________________
______________________
______________________
8. In any of the above incidents:
Were drugs, alcohol or weapons involved? Yes No
Did you need medical help? Yes No
Were the police or the courts involved? Yes No
If you have circled yes to any of the above questions, explain:
______________________
______________________
9. A. There (is) (is not) another Elderly Persons and Persons With Disabilities Abuse Prevention Act or Abuse Prevention Act proceeding pending between respondent and me. It is filed in ______ (County), ______(State), and I am (Petitioner) or (Respondent) in that case.
The case number of the case is: _______________
B. There (is) (is not) another lawsuit pending between respondent and me for divorce, annulment or legal separation.
If yes, type of lawsuit: _______________
It is filed in ________ (County), ________(State).
C. There (is) (is not) a protective proceeding filed in ______ (County), ______(State).
10. Respondent may be required to move from your residence if it is in your sole name, or if it is jointly owned or rented by you and respondent, or if you and respondent are married.
I (do) (do not) want respondent to move from my residence.
My residence is:
Owned Leased Rented
By: _______________
PETITIONER ASKS THE COURT TO GRANT THE RELIEF INDICATED IN THE PETITIONERS REQUEST COLUMN OF THE PROPOSED RESTRAINING ORDER, WHICH IS ATTACHED.
______________________________________________________________________________
PETITIONER MUST NOTIFY THE COURT
OF ANY CHANGE OF ADDRESS.
ALL NOTICES OF HEARING WILL
BE SENT TO THIS ADDRESS
AND DISMISSALS MAY BE
ENTERED IF YOU DO NOT APPEAR
AT A SCHEDULED HEARING.
If you wish to have your residential address or telephone number withheld from respondent, use a contact address and telephone number so the Court and the Sheriff can reach you if necessary.
_________
PETITIONER
STATE OF OREGON )
) ss.
County of_____ )
SUBSCRIBED AND SWORN TO before me this _____ day of______, 2___.
______________________
NOTARY PUBLIC FOR OREGON
My commission expires: ______
RELEVANT DATA
RESPONDENT _______________
Sex ___ Telephone # ________
Residence Address ____________
City/State/Zip _______________
County _______________
Birthdate ______ Age ___
Race ______
Height ________ Weight ________
Eye Color ________
Hair Color ________
PETITIONER (you)____________ GUARDIAN PETITIONER
Sex _____ *Telephone #________ Name ____________
*Residence Address____________ Address ____________
City/State/Zip_______________ __________________
County__________________ Telephone # ___________
Birthdate ________ Age _____
Race ________
Height ________ Weight ________
Eye Color ________
Hair Color ________
*If you wish to have your residential address or telephone number withheld from respondent, use a contact address and telephone number so the Court and the Sheriff can reach you if necessary.
PLEASE FILL OUT THIS INFORMATION
TO AID IN SERVICE OF
THE RESTRAINING ORDER
Where is respondent most likely to be located?
Residence Hours ________
Employment Hours ________
Address: ______
____________
Employment Hours ________
Address: ______
____________
Description of vehicle ____________
___________________________
Does respondent have any weapons or access to weapons? Explain:
______________________________________________________________________________
______________________________________________________________________________
Has respondent ever been arrested for or convicted of a violent crime? Explain:
______________________________________________________________________________
______________________________________________________________________________
Is there anything about respondents character, past behavior or the present situation that indicates that respondent may be a danger to self or other? Explain:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF ____________
_________, )
Petitioner )
(your name) ) RESTRAINING ORDER
) TO PREVENT ABUSE
) OF ELDERLY PERSONS
vs. ) OR PERSONS WITH
) DISABILITIES
)
) NO. ________
_________, )
Respondent )
(person to be restrained) )
)
TO THE RESPONDENT:
VIOLATION OF THIS RESTRAINING ORDER
MAY RESULT IN YOUR ARREST AND IN
CIVIL AND/OR CRIMINAL PENALTIES.
REVIEW THIS ORDER CAREFULLY.
EACH PROVISION MUST BE OBEYED.
SEE YOUR RIGHTS TO A HEARING.
The Court, having reviewed the petition, makes the following findings:
Judges Initials
__ Petitioner been abused by respondent as defined by ORS 124.005;
__ The abuse of petitioner by respondent occurred within the last 180 days as provided in ORS 124.010;
__ There is an immediate and present danger of further abuse to petitioner.
IT IS HEREBY ORDERED that:
Petitioners Request Judges Initials
[ ] 1. Respondent is restrained (prohibited) from intimidating, _____
molesting, interfering with or menacing petitioner, or
attempting to intimidate, molest, interfere with or menace
petitioner.
[ ] 2. Respondent is restrained (prohibited) from entering, or _____
attempting to enter:
(Include names and address unless withheld for safety reasons.)
[ ] Petitioners residence. _____
[ ] Petitioners business or place of employment. _____
[ ] Petitioners school. _____
[ ] Other locations. _____
[ ] 3. Respondent is restrained (prohibited) from:
[ ] Contacting, or attempting to contact, petitioner by telephone. _____
[ ] Contacting, or attempting to contact, petitioner by mail. _____
[ ] 4. Respondent shall move from and not return to the re- _____
sidence located at ____________ except with a
peace officer in order to remove essential personal effects
of the respondent, including, but not limited to:
clothing, toiletries, medications, Social Security cards,
birth certificates, identification and tools of the trade.
[ ] 5. A peace officer shall accompany the petitioner to the _____
parties residence in order to remove essential personal
effects of petitioner, including, but not limited to:
clothing, toiletries, medications, Social Security cards,
birth certificates, identification and tools of the trade.
[ ] 6. Beginning on a date not less than 150 _____
days from the date of this order, the respondent shall
not mail the petitioner any further sweepstakes promotions.
[ ] 7. Respondent shall remove the petitioner from _____
the respondents sweepstakes promotion mailing list or
shall place the petitioner on the respondents list of
persons to whom sweepstakes promotions may not be mailed.
[ ] 8. Respondent shall refund any payment received _____
in any form from the petitioner after the date
this order is entered by the court.
[ ] 9. Other relief:________________________ _____
______________________________
______________________________
[ ] 10. No further service is necessary because respondent _____
appeared in person before the Court.
IT IS FURTHER ORDERED that:
SECURITY AMOUNT FOR VIOLATION OF ANY PROVISION OF THIS ORDER IS $5,000 unless otherwise specified.
Other Amount ($ )
THE ABOVE PROVISIONS OF THIS RESTRAINING ORDER ARE IN EFFECT FOR
A PERIOD OF ONE YEAR OR UNTIL THE ORDER IS VACATED, MODIFIED OR
SUPERSEDED, WHICHEVER OCCURS FIRST.
DATED this _____ day of_______________, 2___.
______________________
CIRCUIT COURT JUDGE (signature)
______________________
CIRCUIT COURT JUDGE (printed)
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _________
)
______, ) NO. _____
Petitioner, )
vs. ) AFFIDAVIT OF PROOF
______, ) OF SERVICE
Respondent. )
)
)
STATE OF )
OREGON )
) ss.
County of___ )
I am a resident of the State of Oregon. I am a competent person 18 years of age or older. I am not an attorney for or a party to this case, or an officer, director or employee of any party to this case.
On the _____ day of______, 2___, I served the Restraining Order to Prevent Abuse of Elderly Persons or Persons With Disabilities and the Petition for Restraining Order to Prevent Abuse of Elderly Persons or Persons With Disabilities in this case personally upon the above-named respondent in _________ County by delivering to the respondent a copy of those papers, each of which was certified to be a true copy of each original.
______________________
Signature of ____________
SUBSCRIBED AND SWORN TO before me this _____ day of______, 2___.
_____________________
NOTARY PUBLIC FOR OREGON
My Commission Expires: ______
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _________
)
______, ) NO. _____
Petitioner, )
vs. ) MOTION AND ORDER
______, ) OF DISMISSAL
Respondent. )
)
Comes now petitioner, ________, and moves this Court for an order allowing the voluntary withdrawal and dismissal of the Restraining Order on file herein.
__________________
Petitioner
SUBSCRIBED AND SWORN TO before me this _____ day of______, 2___.
_____________________
NOTARY PUBLIC FOR OREGON
My Commission Expires: ______
IT IS SO ORDERED this _____ day of______, 2___.
__________________
JUDGE
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _________
______, )
(D.O.B._____) ) NOTICE TO RESPONDENT
Petitioner, ) (Elderly Persons and
) Persons With Disabilities
) Abuse Prevention Act)
)
and ) NO. _____
)
______, )
(D.O.B._____) )
Respondent. )
THIS FORM MUST BE
ATTACHED TO SERVICE COPY
OF RESTRAINING ORDER
TO RESPONDENT: A TEMPORARY RESTRAINING ORDER HAS BEEN ISSUED BY THE COURT WHICH AFFECTS YOUR RIGHTS AND IS NOW IN EFFECT. THIS ORDER BECOMES EFFECTIVE IMMEDIATELY. IF YOU WISH TO CONTEST THE CONTINUATION OF THIS ORDER, YOU MUST COMPLETE THIS FORM AND MAIL OR DELIVER IT TO:
REQUESTS FOR HEARING MUST BE MADE WITHIN 30 DAYS AFTER YOU RECEIVE THE ORDER. YOU MUST INCLUDE YOUR ADDRESS AND TELEPHONE NUMBER WITH YOUR REQUEST FOR A HEARING. THE HEARING WILL BE HELD WITHIN 21 DAYS. AT THE HEARING, A JUDGE WILL DECIDE WHETHER THE ORDER SHOULD BE CANCELED OR CHANGED. THE ONLY PURPOSE OF THIS HEARING WILL BE TO DETERMINE IF THE TERMS OF THE COURTS TEMPORARY ORDER SHOULD BE CANCELED, CHANGED OR EXTENDED.
Keep in mind that this order remains in effect until the court that issued the order modifies or dismisses it. If you are arrested for violating this order, the security amount (bail) is $5,000, unless a different amount is ordered by the court. Violation of this order constitutes contempt of court and is punishable by a fine of up to $500 or one percent of your annual gross income, whichever is greater, a jail term of up to six months, or both. Other sanctions may be imposed.
______________________________________________________________________________
REQUEST FOR HEARING
I am the Respondent in the above-referenced action and I request a hearing to contest all or part of the order as follows (mark one or more):
__ The order restraining me from contacting, or attempting to contact, the petitioner.
__ Other _______________
I (will) (will not) be represented by an attorney at the hearing.
Notice of the time and place of the hearing can be mailed to me at the address below my signature.
Date: _______________
______________________
SIGNATURE OF RESPONDENT
______________________
______________________
ADDRESS
______________________
TELEPHONE NUMBER
______________________________________________________________________________
(7) If the court orders relief:
(a) The clerk of the court shall provide without charge the number of certified true copies of the petition and order necessary to effect service and shall have a true copy of the petition and order delivered to the county sheriff for service upon the respondent, unless the court finds that further service is unnecessary because the respondent appeared in person before the court.
(b) The county sheriff shall serve the respondent personally unless the petitioner or guardian petitioner elects to have the respondent served personally by a private party or by a peace officer who is called to the scene of a domestic disturbance at which the respondent is present, and who is able to obtain a copy of the order within a reasonable amount of time. Proof of service shall be made in accordance with ORS 124.030.
(c) A respondent accused of committing abuse by means of a sweepstakes promotion may be served:
(A) Personally;
(B) By mailing certified true copies of the petition and order by certified mail to the address to which the elderly person or person with disabilities would have sent the payment for goods or services promoted in the sweepstakes promotion had the elderly person or person with disabilities been ordering the goods or services; or
(C) In the manner directed by the court.
(d) No filing fee, service fee or hearing fee shall be charged for proceedings seeking only the relief provided under ORS 124.005 to 124.040.
(8) If the county sheriff:
(a) Determines that the order and petition are incomplete, the order and petition shall be returned to the clerk of the court. The clerk of the court shall notify the petitioner or guardian petitioner, at the address provided by the petitioner or guardian petitioner, of the error or omission.
(b) After accepting the order and petition, cannot complete service within 10 days, the sheriff shall notify the petitioner or guardian petitioner, at the address provided by the petitioner or guardian petitioner, that the documents have not been served. If the petitioner or guardian petitioner does not respond within 10 days, the county sheriff shall hold the order and petition for future service and file a return to the clerk of the court showing that service was not completed.
(9)(a) Within 30 days after a restraining order is served on the respondent under this section or within 30 days after notice is served on the elderly person or person with disabilities under ORS 124.024, the respondent, elderly person or person with disabilities may request a court hearing upon any relief granted. The hearing request form shall be available from the clerk of the court and shall be in substantially the form provided in subsection (6) of this section.
(b) If the respondent, elderly person or person with disabilities requests a hearing under paragraph (a) of this subsection, the clerk of the court shall notify the petitioner or guardian petitioner of the date and time of such hearing, and shall supply the petitioner or guardian petitioner with a copy of the request for a hearing. The petitioner or guardian petitioner shall give to the clerk of the court information sufficient to allow such notification.
(c) The hearing is not limited to the issues raised in the request for hearing form and may include testimony from witnesses to the abuse and adult protective services workers. The hearing may be held in person or by telephone. If the respondent, elderly person or person with disabilities seeks to raise an issue at the hearing not previously raised in the request for hearing form, the petitioner or guardian petitioner is entitled to a reasonable continuance for the purpose of preparing a response to the issue.
(d) The court shall exercise its discretion in a manner that protects the elderly person or person with disabilities from traumatic confrontation with the respondent. [1995 c.666 §§6,6a; 1997 c.249 §40; 1997 c.863 §5; 1999 c.738 §3; 1999 c.875 §7; 2003 c.257 §4a; 2003 c.264 §3; 2005 c.22 §97; 2005 c.671 §3]
124.022 Service of
restraining order by sheriff. A sheriff may serve a restraining order under
ORS 124.020 in the county in which the sheriff was elected and in any other
county that is adjacent to the county in which the sheriff was elected. [2003
c.304 §12]
124.024 Notice to be given
by guardian petitioner. (1) A guardian petitioner must give notice of the
petition, order and related forms described in ORS 124.020 (6) to the elderly
person or person with disabilities named in the petition.
(2) The guardian petitioner must also serve on the elderly person or person with disabilities a notice that contains a statement of the rights of an elderly person or a person with disabilities as follows:
(a) The right to contact and retain counsel;
(b) The right to have access to personal records;
(c) The right to file objections to the restraining order;
(d) The right to request a hearing to contest all or part of the restraining order; and
(e) The right to present evidence and cross-examine witnesses at any hearing.
(3) Notice provided under subsection (1) of this section must be similar to the notice provided to the respondent under ORS 124.020 (6) and must contain an objection form that the elderly person or person with disabilities may complete and mail to the court.
(4) Notice under this section must be personally served on the elderly person or person with disabilities. The date of personal service must be not later than 72 hours after the court issues a restraining order under ORS 124.020.
(5) Proof of service under this section must be filed in the proceeding before the court holds a hearing under ORS 124.015. [2003 c.257 §7; 2003 c.257 §7a; 2005 c.671 §10]
124.025 Removal of personal
effects; accompanying peace officer; limitation on liability. (1) A peace
officer who accompanies a party removing essential personal effects pursuant to
an order issued under ORS 124.020 shall remain for up to 20 minutes and may
temporarily interrupt the removal of property at any time. Nothing in this
subsection shall affect a peace officers duty to arrest under ORS 133.055 and
133.310.
(2) The party removing essential personal effects from the residence pursuant to an order issued under ORS 124.020 is entitled to be accompanied by a peace officer on one occasion only.
(3) A peace officer who accompanies a party removing essential personal effects pursuant to an order issued under ORS 124.020 shall have immunity from any liability, civil or criminal, for any actions of the party committed during the removal of essential personal effects. [1995 c.666 §7]
124.030 Proof of service of
restraining order to be delivered to sheriff; entry in LEDS; expiration of
restraining order; release of respondent pending hearing. (1) Whenever a
restraining order, as authorized by ORS 124.015 or 124.020, that includes a
security amount and an expiration date pursuant to ORS 124.015 and 124.020 and
this section, is issued and the person to be restrained has actual notice
thereof, the clerk of the court or any other person serving the petition and
order shall deliver forthwith to a county sheriff a true copy of the affidavit
of proof of service on which it is stated that personal service of the petition
and order was served on the respondent, a copy of the petition and a true copy
of the order. If an order entered by the court recites that the respondent
appeared in person before the court, the necessity for further service of the order
is waived and an accompanying proof of service is not necessary. Upon receipt
of a true copy of proof of service, when required, and a true copy of the
order, the county sheriff shall forthwith enter the order into the Law
Enforcement Data System maintained by the Department of State Police. Entry
into the Law Enforcement Data System constitutes notice to all law enforcement
agencies of the existence of such order. Law enforcement agencies shall
establish procedures adequate to ensure that an officer at the scene of an
alleged violation of such order may be informed of the existence and terms of
such order. Such order shall be fully enforceable in any county in the state.
The petitioner or guardian petitioner may elect to deliver documents personally
to a county sheriff or to have them delivered by a private person for entry
into the Law Enforcement Data System.
(2)(a) A restraining order shall remain in effect until the order expires or is terminated by court order.
(b) When a restraining order has been entered under ORS 124.020, the restraining order shall not be terminated upon a motion for dismissal by the petitioner or guardian petitioner unless the motion is notarized.
(3) In any situation where a restraining order described in subsection (1) of this section is terminated before the expiration date, the clerk of the court shall deliver forthwith a true copy of the termination order to the county sheriff with whom the original order was filed. Upon receipt of such termination order the county sheriff shall promptly remove the original order from the Law Enforcement Data System.
(4) Pending a contempt hearing for an alleged violation of a restraining order issued pursuant to ORS 124.015 or 124.020, a person arrested and taken into custody pursuant to ORS 133.310 may be released as provided in ORS 135.230 to 135.290. Whenever such restraining order is issued, the issuing court shall set a security amount for the violation of such order. [1995 c.666 §8; 2003 c.257 §5]
124.035 Renewal of
restraining order. For good cause shown, the court may renew an order
entered under ORS 124.015 or 124.020, and the court may do so regardless of
whether there has been a further act of abuse. [1995 c.666 §9]
124.040 Short title. ORS
124.005 to 124.040 shall be known and may be cited as the Elderly Persons and
Persons With Disabilities Abuse Prevention Act. [1995 c.666 §2; 1999 c.738 §4;
2003 c.264 §4]
REPORTING OF ABUSE OF ELDERLY PERSONS
124.050 Definitions for ORS
124.050 to 124.095. As used in ORS 124.050 to 124.095:
(1) Abuse means one or more of the following:
(a) Any physical injury caused by other than accidental means, or which appears to be at variance with the explanation given of the injury.
(b) Neglect which leads to physical harm through withholding of services necessary to maintain health and well-being.
(c) Abandonment, including desertion or willful forsaking of an elderly person or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.
(d) Willful infliction of physical pain or injury.
(e) An act that constitutes a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.
(f) Wrongfully taking or appropriating money or property, or knowingly subjecting an elderly person or person with disabilities to alarm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the elderly person or person with disabilities to believe that the threat will be carried out.
(2) Elderly person means any person 65 years of age or older who is not subject to the provisions of ORS 441.640 to 441.665.
(3) Law enforcement agency means:
(a) Any city or municipal police department.
(b) Any county sheriffs office.
(c) The Oregon State Police.
(d) Any district attorney.
(4) Public or private official means:
(a) Physician, naturopathic physician, osteopathic physician, chiropractor or podiatric physician and surgeon, including any intern or resident.
(b) Licensed practical nurse, registered nurse, nurses aide, home health aide or employee of an in-home health service.
(c) Employee of the Department of Human Services, county health department or community mental health and developmental disabilities program.
(d) Peace officer.
(e) Member of the clergy.
(f) Licensed clinical social worker.
(g) Physical, speech or occupational therapists.
(h) Senior center employee.
(i) Information and referral or outreach worker.
(j) Licensed professional counselor or licensed marriage and family therapist.
(k) Any public official who comes in contact with elderly persons in the performance of the officials official duties.
(L) Firefighter or emergency medical technician. [Formerly 410.610; 1999 c.463 §6; 2001 c.104 §36; 2005 c.671 §4]
124.055 Policy. The
Legislative Assembly finds that for the purpose of preventing abuse,
safeguarding and enhancing the welfare of elderly persons, it is necessary and
in the public interest to require mandatory reports and investigations of
allegedly abused elderly persons. [Formerly 410.620]
124.060 Duty of officials to
report. Any public or private official having reasonable cause to believe
that any person 65 years of age or older with whom the official comes in
contact, while acting in an official capacity, has suffered abuse, or that any
person with whom the official comes in contact while acting in an official
capacity has abused a person 65 years of age or older shall report or cause a
report to be made in the manner required in ORS 124.065. [Formerly 410.630]
124.065 Method of reporting;
content; notice to law enforcement agency and to department. (1) When a
report is required under ORS 124.060, an oral report shall be made immediately
by telephone or otherwise to the local office of the Department of Human
Services or to a law enforcement agency within the county where the person
making the report is at the time of contact. If known, such reports shall
contain the names and addresses of the elderly person and any persons responsible
for the care of the elderly person, the nature and the extent of the abuse
(including any evidence of previous abuse), the explanation given for the abuse
and any other information which the person making the report believes might be
helpful in establishing the cause of the abuse and the identity of the
perpetrator.
(2) When a report is received by the department under ORS 124.060, the department may notify the law enforcement agency having jurisdiction within the county where the report was made. If the department is unable to gain access to the allegedly abused elderly person, the department may contact the law enforcement agency for assistance and the agency shall provide assistance. When a report is received by a law enforcement agency, the agency shall immediately notify the law enforcement agency having jurisdiction if the receiving agency does not. The receiving agency shall also immediately notify the local office of the department in the county where the report was made. [Formerly 410.640]
124.070 Duty to investigate;
notice to department; evaluation. (1) Upon receipt of the report required
under ORS 124.060, the Department of Human Services or the law enforcement
agency shall cause an investigation to be commenced promptly to determine the
nature and cause of the abuse.
(2) If the department or law enforcement agency conducting the investigation finds reasonable cause to believe that abuse has occurred, the department or law enforcement agency shall notify in writing the appropriate law enforcement agency or the local office of the department, respectively. The investigation shall include a visit to the named elderly person and consultation with those individuals having knowledge of the facts of the particular case. Upon completion of the evaluation of each case, written findings shall be prepared which shall include recommended action and a determination of whether protective services are needed. [Formerly 410.650]
124.075 Immunity of person
making report in good faith; identity confidential. (1) Anyone
participating in good faith in the making of a report of elder abuse and who
has reasonable grounds for making the report shall have immunity from any civil
liability that might otherwise be incurred or imposed with respect to the
making or content of such report. Any such participant shall have the same
immunity with respect to participating in any judicial proceeding resulting
from such report.
(2) The identity of the person making the report shall be treated as confidential information and shall be disclosed only with the consent of that person or by judicial process, or as required to perform the functions under ORS 124.070. [Formerly 410.660; 2005 c.671 §5]
124.080 Photographing of
victim; photograph as record. (1) In carrying out its duties under ORS
124.070 a law enforcement agency or the Department of Human Services may
photograph or cause to have photographed any victim who is the subject of the
investigation for purposes of preserving evidence of the condition of the
victim at the time of the investigation.
(2) For purposes of ORS 124.090, photographs taken under authority of subsection (1) of this section shall be considered records. [Formerly 410.670]
124.085 Catalogue of abuse
records; confidentiality. A proper record of complaints made under ORS
124.060 and 124.065 shall be maintained by the Department of Human Services.
The department shall prepare reports in writing when investigation has shown
that the condition of the elderly person was the result of abuse even if the cause
remains unknown. The complaints and investigative reports shall be catalogued
under the name of the victim but shall be treated as confidential information,
and shall be disclosed only with the consent of that person or by judicial
process. [Formerly 410.680]
124.090 Confidentiality of
records; exceptions. Notwithstanding the provisions of ORS 192.410 to
192.505, the names of the public or private official who made the complaint,
witnesses and the elderly persons compiled under the provisions of ORS 124.050
to 124.095 are confidential and are not accessible for public inspection.
However, the Department of Human Services shall make the information and any
investigative report available to any law enforcement agency, to any public
agency that licenses or certifies residential facilities or licenses or
certifies the persons practicing therein, to any public agency providing
protective services for the elderly person and to the Long Term Care Ombudsman,
if appropriate. The department shall also make the information and any
investigative report available to any private nonprofit agency providing
protective services for the elderly person. When this information and any
investigative report is made available to the private agency, ORS 124.050 to
124.095 relating to confidentiality apply to the private agency. [Formerly
410.690; 2001 c.900 §21]
124.095 Spiritual treatment
not abuse. An elderly person who in good faith is voluntarily under
treatment solely by spiritual means through prayer in accordance with the
tenets and practices of a recognized church or religious denomination by a duly
accredited practitioner thereof shall, for this reason alone, not be considered
subjected to abuse by reason of neglect under ORS 124.050 to 124.095. [Formerly
410.700]
CIVIL ACTION FOR ABUSE OF VULNERABLE PERSON
124.100 Definitions for ORS
124.100 to 124.140; action authorized; relief; qualifications for bringing
action; service on Attorney General. (1) As used in ORS 124.100 to 124.140:
(a) Elderly person means a person 65 years of age or older.
(b) Financially incapable has the meaning given that term in ORS 125.005.
(c) Incapacitated has the meaning given that term in ORS 125.005.
(d) Person with disabilities means a person with a physical or mental impairment that:
(A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and
(B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.
(e) Vulnerable person means:
(A) An elderly person;
(B) A financially incapable person;
(C) An incapacitated person; or
(D) A person with disabilities who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the persons physical or mental impairment.
(2) A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse. The court shall award the following to a plaintiff who prevails in an action under this section:
(a) An amount equal to three times all economic damages, as defined in ORS 31.710, resulting from the physical or financial abuse, or $500, whichever amount is greater.
(b) An amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical or financial abuse.
(c) Reasonable attorney fees incurred by the plaintiff.
(d) Reasonable fees for the services of a conservator or guardian ad litem incurred by reason of the litigation of a claim brought under this section.
(3) An action may be brought under this section only by:
(a) A vulnerable person;
(b) A guardian, conservator or attorney-in-fact for a vulnerable person;
(c) A personal representative for the estate of a decedent who was a vulnerable person at the time the cause of action arose; or
(d) A trustee for a trust on behalf of the trustor or the spouse of the trustor who is a vulnerable person.
(4) An action may be brought under this section only for physical abuse described in ORS 124.105 or for financial abuse described in ORS 124.110.
(5) An action may be brought under this section against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.
(6) A person commencing an action under this section must serve a copy of the complaint on the Attorney General within 30 days after the action is commenced. [1995 c.671 §1; 1997 c.249 §41; 1999 c.305 §1; 2001 c.843 §3; 2003 c.211 §1; 2005 c.87 §1; 2005 c.386 §1a]
Note: Section 2, chapter
87, Oregon Laws 2005, provides:
Sec. 2. The amendments
to ORS 124.100 by section 1 of this 2005 Act apply to actions for injury,
damage or death occurring before, on or after the effective date of this 2005
Act [January 1, 2006]. [2005 c.87 §2]
Note: Section 4, chapter
386, Oregon Laws 2005, provides:
Sec. 4. The amendments
to ORS 124.100, 124.105 and 124.110 by sections 1 to 3 of this 2005 Act apply
to conduct described in ORS 124.105 and 124.110 that gives rise to a cause of
action under ORS 124.100 to 124.140 that occurs on or after the effective date
of this 2005 Act [January 1, 2006]. [2005 c.386 §4]
124.105 Physical abuse
subject to action. (1) An action may be brought under ORS 124.100 for
physical abuse if the defendant engaged in conduct against a vulnerable person
that would constitute any of the following:
(a) Assault, under the provisions of ORS 163.160, 163.165, 163.175 and 163.185.
(b) Menacing, under the provisions of ORS 163.190.
(c) Recklessly endangering another person, under the provisions of ORS 163.195.
(d) Criminal mistreatment, under the provisions of ORS 163.200 and 163.205.
(e) Rape, under the provisions of ORS 163.355, 163.365 and 163.375.
(f) Sodomy, under the provisions of ORS 163.385, 163.395 and 163.405.
(g) Unlawful sexual penetration, under the provisions of ORS 163.408 and 163.411.
(h) Sexual abuse, under the provisions of ORS 163.415, 163.425 and 163.427.
(i) Strangulation, under ORS 163.187.
(2) An action may be brought under ORS 124.100 for physical abuse if the defendant used any unreasonable physical constraint on the vulnerable person or subjected the vulnerable person to prolonged or continued deprivation of food or water.
(3) An action may be brought under ORS 124.100 for physical abuse if the defendant used a physical or chemical restraint, or psychotropic medication on the vulnerable person without an order from a physician licensed in the State of Oregon or under any of the following conditions:
(a) For the purpose of punishing the vulnerable person.
(b) For any purpose not consistent with the purposes authorized by a physician.
(c) For a period significantly beyond that for which the restraint or medication was authorized by a physician. [1995 c.671 §2; 2003 c.577 §4; 2005 c.386 §2]
Note: See second note
under 124.100.
124.110 Financial abuse
subject to action. (1) An action may be brought under ORS 124.100 for
financial abuse in the following circumstances:
(a) When a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person.
(b) When a vulnerable person requests that another person transfer to the vulnerable person any money or property that the other person holds or controls and that belongs to or is held in express trust, constructive trust or resulting trust for the vulnerable person, and the other person, without good cause, either continues to hold the money or property or fails to take reasonable steps to make the money or property readily available to the vulnerable person when:
(A) The ownership or control of the money or property was acquired in whole or in part by the other person or someone acting in concert with the other person from the vulnerable person; and
(B) The other person acts in bad faith, or knew or should have known of the right of the vulnerable person to have the money or property transferred as requested or otherwise made available to the vulnerable person.
(c) When a person has at any time engaged in conduct constituting a violation of a restraining order regarding sweepstakes that was issued under ORS 124.020.
(2) A transfer of money or property that is made for the purpose of qualifying a vulnerable person for Medicaid benefits or for any other state or federal assistance program, or the holding and exercise of control over money or property after such a transfer, does not constitute a wrongful taking or appropriation under subsection (1)(a) of this section or the holding of money or property without good cause for the purposes of subsection (1)(b) of this section. [1995 c.671 §3; 1999 c.305 §2; 1999 c.875 §8; 2005 c.386 §3]
Note: See second note
under 124.100.
124.115 Persons not subject
to action. (1) Except as provided by subsection (2) of this section, an
action under ORS 124.100 may not be brought against:
(a) Financial institutions, as defined by ORS 706.008;
(b) A health care facility, as defined in ORS 442.015;
(c) Any facility licensed or registered under ORS chapter 443; or
(d) Broker-dealers licensed under ORS 59.005 to 59.541.
(2) An action may be brought under ORS 124.100 against a person listed in subsection (1) of this section if:
(a) The person is convicted of one of the crimes specified in ORS 124.105 (1); or
(b) The person engages in conduct constituting financial abuse as described in ORS 124.110, and the person is convicted of a crime by reason of the conduct. [1995 c.671 §3a; 1997 c.631 §408; 1999 c.305 §3]
124.120 Relief available.
The court may restrain and remedy the conduct described in ORS 124.105 and 124.110
by issuing appropriate orders including but not limited to:
(1) A judgment for the remedies provided by ORS 124.100.
(2) Restraining orders, temporary injunctions or other actions as the court deems proper, including the acceptance of satisfactory performance bonds, the creation of receiverships, the appointment of qualified receivers and the enforcement of constructive trusts.
(3) Ordering any person to divest direct or indirect interest or contact with any person or enterprise.
(4) Imposing reasonable restrictions, including permanent injunctions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor or conduct to the extent permitted by the Constitution of the United States and this state. [1995 c.671 §4]
124.125 Action by Attorney
General, Department of Human Services or district attorney; investigative
demands. (1) The Attorney General, the Department of Human Services or any
district attorney may bring an action against any person who engages in conduct
described in ORS 124.105 and 124.110. In addition to remedies otherwise
provided in ORS 124.100 to 124.140, upon prevailing in the action, the court
shall award to the Attorney General, Department of Human Services or district
attorney costs of investigation and penalties. Penalties awarded under this
section may not exceed $25,000 per occurrence.
(2) The Attorney General may intervene in any civil action brought under ORS 124.100 if the Attorney General certifies that, in the opinion of the Attorney General, the action is of general public importance. In the action, the state shall be entitled to the same relief as if the Attorney General instituted the action under the provisions of this section.
(3) When it appears that a person is engaging in conduct described in ORS 124.105 or 124.110, the Attorney General or any district attorney may execute in writing and cause to be served an investigative demand upon any person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation. The investigative demand shall require the person, under oath or otherwise, to appear and testify, to answer written interrogatories or to produce relevant documentary material or physical evidence for examination, at a reasonable time and place as stated in the investigative demand.
(4) At any time before the return date specified in an investigative demand, or within 20 days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause, including a request for privileged material, may be filed in the appropriate court.
(5) Service of an investigative demand under subsection (3) of this section shall be made personally within this state. If personal service within this state cannot be made, substituted service may be made by any of the following methods:
(a) Personal service outside of this state;
(b) Mailing the investigative demand by registered or certified mail to the last-known place of business, residence or abode within or outside of this state of the person for whom service is intended;
(c) As to any person other than a natural person, in the manner provided for service of summons in an action or suit; or
(d) Such service as the court may direct.
(6) If any person after being served with an investigative demand under subsection (3) of this section fails or refuses to obey an investigative demand issued by the Attorney General or a district attorney, the Attorney General or district attorney may, after notice to an appropriate court and after a hearing, request an order:
(a) Granting injunctive relief to restrain the person from engaging in conduct that is involved in the alleged or suspected violation; or
(b) Granting other relief as may be required, until the person obeys the investigative demand.
(7) Any disobedience of any final order of a court under subsection (6) of this section shall be punished as a contempt of court.
(8) ORS 192.550 to 192.595 apply to the disclosure of financial records by a financial institution pursuant to the service of an investigative demand under subsection (3) of this section. [1995 c.671 §5; 2003 c.265 §1]
124.130 Statute of
limitation. An action under ORS 124.100 to 124.140 must be commenced within
seven years after discovery of the conduct described in ORS 124.105 and 124.110
that gives rise to a cause of action under ORS 124.100 to 124.140. [1995 c.671
§6]
124.135 Remedies not
exclusive. The remedies provided by ORS 124.100 to 124.140 are in addition
to any other remedy, civil or criminal, that may be available under any other
provision of law. [1995 c.671 §7]
124.140 Estoppel based on
criminal conviction. A defendant convicted in any criminal proceeding of
conduct that gives rise to a cause of action under ORS 124.100, whether the
conviction results from a plea or verdict, is estopped from denying the conduct
for purposes of an action under ORS 124.100 to 124.140. [1995 c.671 §8]
PENALTIES
124.990 Criminal penalty.
A person who violates ORS 124.060 commits a Class A violation. [Formerly
410.990]
_______________
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