2007 Oregon Code - Chapter 124 :: TITLE 13
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
2007 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; facsimile of order
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 Catalog
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 a disability or the
withdrawal or neglect of duties and obligations owed an elderly person or a
person with a disability 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 a disability.
(f) Causing any sweepstakes promotion to
be mailed to an elderly person or a person with a disability 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 a
disability 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 a disability to believe that the threat will be
carried out.
(h) Sexual contact with a nonconsenting
elderly person or person with a disability or with an elderly person or person
with a disability 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 a disability who
files a petition under ORS 124.005 to 124.040 on behalf of the elderly person
or person with a disability.
(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 a disability means a
person described in:
(a) ORS 410.040 (7)(b); or
(b) ORS 410.715.
(9) Petitioner means an elderly person
or a person with a disability 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; 2007 c.70 §24]
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
a disability 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 a
disability 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
person is in immediate and present danger of further abuse from the abuser.
(b) The elderly person or person with a
disability or the guardian or guardian ad litem of the person may seek relief
by filing a petition with the circuit court alleging that the person is in
immediate and present danger of further abuse from the respondent, alleging
that the person 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 a disability 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 a disability 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 a disability 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 a disability, the elderly person or person with a disability 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 a
disability may not file a petition under ORS 124.005 to 124.040 against a
guardian or conservator for the person. [1995 c.666 §4; 1999 c.738 §2; 1999 c.1052
§11; 2003 c.257 §2a; 2003 c.264 §2; 2005 c.671 §2; 2007 c.70 §25]
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 a disability 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 a
disability 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; 2007 c.70 §26]
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 a disability 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 person, 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 a disability, if
in the sole name of the person or if jointly owned or rented by the person 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 a disability, or attempting to abuse, intimidate, molest,
interfere with or menace the person;
(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 a disability;
(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 a disability any sweepstakes promotion;
(B) Required to remove the elderly person
or person with a disability from the respondents sweepstakes promotion mailing
list or place the person 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 a
disability 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 a disability.
(2)(a) If the court finds that the elderly
person or person with a disability 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 person, including but not limited to:
(A) Directing the respondent to refrain
from exercising control over the money or property of the person;
(B) Requiring the respondent to return
custody or control of the money or property of the person to the person;
(C) Requiring the respondent to follow the
instructions of the guardian or conservator of the person; or
(D) Prohibiting the respondent from
transferring the money or property of the elderly person or person with a
disability to any person other than the elderly person or person with a
disability.
(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 a disability to assume responsibility for
managing any of the money or property of the elderly person or person with a
disability; 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 a disability 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 a
disability;
(b) The guardian or guardian ad litem of
the elderly person or person with a disability;
(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 a disability with
additional abuse.
(5) When a guardian petitioner files a
petition on behalf of an elderly person or a person with a disability, the
guardian petitioner shall provide information about the person 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
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
Respondent is a
resident of
I am either 65
years of age or older (I am ______ years of age) or I am a person with a
disability (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 a disability. In the past year, I spent more than $500 on
sweepstakes promotions that I received in the
__ 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
) ss.
SUBSCRIBED AND SWORN TO before me this _____
day of ______, 2___.
______________________
NOTARY PUBLIC FOR
My commission expires: ______
RELEVANT DATA
RESPONDENT _______________
Sex ___ Telephone
# ________
Residence Address ____________
City/State/Zip _______________
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 others? Explain:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF
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
has 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
FOR THE COUNTY OF _________
)
______, ) NO. _____
Petitioner, )
vs. ) AFFIDAVIT
OF PROOF
______, ) OF SERVICE
Respondent. )
)
)
STATE OF )
) ss.
County of ___ )
I am a resident of the State of
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
My Commission Expires: ______
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF
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
My Commission Expires: ______
IT IS SO ORDERED this _____ day of ______,
2___.
__________________
JUDGE
______________________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF
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 a disability would have sent the payment for goods or
services promoted in the sweepstakes promotion had the elderly person or person
with a disability 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 a disability under ORS
124.024, the respondent, elderly person or person with a disability 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 a disability 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 a disability 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 a
disability 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; 2007 c.70 §27]
124.022
Service of restraining order by sheriff; facsimile of order. (1) 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.
(2) A sheriff may serve and enter into the
Law Enforcement Data System a facsimile of a certified true copy of a
restraining order under ORS 124.020 that was transmitted to the sheriff by a
trial court administrator or another sheriff using a telephonic facsimile
communication device. A copy of the facsimile must be attached to the sheriffs
return of service. Before transmitting a restraining order to a sheriff under
this subsection, the person sending the facsimile must receive confirmation by
telephone from the sheriffs office that a telephonic facsimile communication
device is available and operating. [2003 c.304 §12; 2007 c.255 §9]
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
a disability named in the petition.
(2) The guardian petitioner must also
serve on the elderly person or person with a disability a notice that contains
a statement of the rights of the person 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 a disability may complete and mail to the court.
(4) Notice under this section must be
personally served on the elderly person or person with a disability. 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; 2007 c.70 §28]
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 the order and completion of any required service, 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; 2007 c.255 §10]
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 a
disability to alarm by conveying a threat to wrongfully take or appropriate money
or property, which threat reasonably would be expected to cause the person 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
(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;
2007 c.70 §29]
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
Catalog 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 cataloged 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 a disability 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 a disability 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; 2007 c.70
§30]
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
(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]
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]
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
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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