2007 Oregon Code - Chapter 125 :: Chapter 125 - Protective Proceedings
Chapter 125 —
Protective Proceedings
2007 EDITION
PROTECTIVE PROCEEDINGS
PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY;
TRUSTS
GENERAL PROVISIONS
125.005Â Â Â Â Definitions
125.010Â Â Â Â Protective
proceedings
125.015Â Â Â Â Jurisdiction
of protective proceedings; proceedings in other states
125.020Â Â Â Â Venue
for protective proceedings
125.025Â Â Â Â Authority
of the court in protective proceedings
125.030Â Â Â Â Use
of limited judgment in protective proceedings
PROCEDURE IN PROTECTIVE PROCEEDINGS
125.050Â Â Â Â Application
of ORCP and
125.055Â Â Â Â Petitions
in protective proceedings
125.060Â Â Â Â Who
must be given notice
125.065Â Â Â Â Manner
of giving notice
125.070Â Â Â Â Contents
of notice
125.075Â Â Â Â Presentation
of objections
125.080Â Â Â Â Hearing
125.085Â Â Â Â Motions
after appointment of a fiduciary
125.090Â Â Â Â Termination
of proceedings
125.095Â Â Â Â Compensation
and expenses payable in protective proceedings
VISITORS
125.150Â Â Â Â Appointment
of visitors
125.155Â Â Â Â VisitorÂ’s
report
125.160Â Â Â Â Subsequent
appointment of visitor
125.165Â Â Â Â Qualifications
and standards for visitors
125.170Â Â Â Â Payment
and reimbursement for visitor services
FIDUCIARIES GENERALLY
125.200Â Â Â Â Preferences
in appointing fiduciary
125.205Â Â Â Â Persons
not qualified to act as fiduciary
125.210Â Â Â Â Notice
to court of criminal conviction, revocation or cancellation of occupational
license or bankruptcy proceedings
125.215Â Â Â Â Acceptance
of appointment as fiduciary; notice of proceedings to fiduciary
125.221Â Â Â Â Conflicts
of interest
125.225Â Â Â Â Removal
of fiduciary
125.230Â Â Â Â Termination
of fiduciaryÂ’s authority; discharge of fiduciary
125.235Â Â Â Â Liability
of fiduciary
125.240Â Â Â Â Professional
fiduciaries
125.242Â Â Â Â Exemptions
for financial institutions and trust companies
GUARDIANS
125.300Â Â Â Â In
general
125.305Â Â Â Â Order
of appointment
125.310Â Â Â Â Letters
of guardianship
125.315Â Â Â Â General
powers and duties of guardian
125.320Â Â Â Â Limitations
on guardian
125.325Â Â Â Â GuardianÂ’s
report
125.330Â Â Â Â Limitations
on guardian appointed for person committed to custody of Department of
Corrections
CONSERVATORS
(Appointment)
125.400Â Â Â Â Order
of appointment
125.405Â Â Â Â Letters
of conservatorship
(Bond)
125.410Â Â Â Â ConservatorÂ’s
bond
125.415Â Â Â Â Termination
of bond by surety
(ConservatorÂ’s Powers and Duties)
125.420Â Â Â Â Power
of conservator over property of protected person
125.425Â Â Â Â Powers
of conservator to pay expenses of protected person and dependents
125.430Â Â Â Â
125.435Â Â Â Â Power
of conservator to make gifts
125.440Â Â Â Â Acts
conservator may perform only with court approval
125.445Â Â Â Â Acts
authorized to be performed without prior court approval
125.450Â Â Â Â Voidable
transactions
(Desires of Protected Person)
125.455Â Â Â Â Power
of competent protected person over estate
125.460Â Â Â Â Consideration
of estate plan of protected person
(Inventory of Property)
125.465Â Â Â Â Discovery
of property; examination by conservator
125.470Â Â Â Â Filing
of inventory required; supplemental inventory
(Accountings)
125.475Â Â Â Â ConservatorÂ’s
accounting to court; contents
125.480Â Â Â Â Approval
of accounting
(Liabilities)
125.485Â Â Â Â Liability
of conservator
125.490Â Â Â Â Status
of persons dealing with conservator
(Claims and Expenses)
125.495Â Â Â Â Payment
of claims against estate or protected person
125.500Â Â Â Â Enforcement
of claim against estate or protected person
125.505Â Â Â Â Notice
of claim to conservator
125.510Â Â Â Â Procedure
where claim disallowed
125.515Â Â Â Â Effect
of presentation of claim on statute of limitations
125.520Â Â Â Â Order
of payment of expenses and claims
(Termination of Proceedings)
125.525Â Â Â Â Termination
of conservatorship
125.530Â Â Â Â Powers
and duties of conservator on death of protected person
125.535Â Â Â Â Disposition
of small estate
(Payment to Foreign Conservator)
125.540Â Â Â Â Payment
of debt and delivery of property to foreign conservator
TEMPORARY FIDUCIARIES
125.600Â Â Â Â In
general
125.605Â Â Â Â Procedure
for appointment of temporary fiduciary
125.610Â Â Â Â Report
of temporary fiduciary
OTHER PROTECTIVE ORDERS
125.650Â Â Â Â Other
protective orders
PUBLIC GUARDIANS AND CONSERVATORS
125.700Â Â Â Â Office
of public guardian and conservator; expenses; termination
125.705Â Â Â Â Effect
of vacancy in office of public guardian and conservator
125.710Â Â Â Â Powers
and duties of public guardian and conservator
125.715Â Â Â Â Bond;
exoneration of surety
125.720Â Â Â Â Deposit
of funds
125.725Â Â Â Â Reimbursement
of public guardian and conservatorÂ’s expenses from estate of ward or protected
person
125.730Â Â Â Â Fees
prohibited
GENERAL PROVISIONS
     125.005
Definitions. As used in this
chapter:
     (1) “Conservator” means a person appointed
as a conservator under the provisions of this chapter.
     (2) “Fiduciary” means a guardian or
conservator appointed under the provisions of this chapter or any other person
appointed by a court to assume duties with respect to a protected person under
the provisions of this chapter.
     (3) “Financially incapable” means a
condition in which a person is unable to manage financial resources of the
person effectively for reasons including, but not limited to, mental illness,
mental retardation, physical illness or disability, chronic use of drugs or
controlled substances, chronic intoxication, confinement, detention by a
foreign power or disappearance. “Manage financial resources” means those
actions necessary to obtain, administer and dispose of real and personal
property, intangible property, business property, benefits and income.
     (4) “Guardian” means a person appointed as
a guardian under the provisions of this chapter.
     (5) “Incapacitated” means a condition in
which a personÂ’s ability to receive and evaluate information effectively or to
communicate decisions is impaired to such an extent that the person presently
lacks the capacity to meet the essential requirements for the personÂ’s physical
health or safety. “Meeting the essential requirements for physical health and
safety” means those actions necessary to provide the health care, food,
shelter, clothing, personal hygiene and other care without which serious
physical injury or illness is likely to occur.
     (6) “Minor” means any person who has not
attained 18 years of age.
     (7) “Protected person” means a person for
whom a protective order has been entered.
     (8) “Protective order” means an order of a
court appointing a fiduciary or any other order of the court entered for the
purpose of protecting the person or estate of a respondent or protected person.
     (9) “Protective proceeding” means a
proceeding under this chapter.
     (10) “Respondent” means a person for whom
entry of a protective order is sought in a petition filed under ORS 125.055.
     (11) “Visitor” means a person appointed by
the court under ORS 125.150 for the purpose of interviewing and evaluating a
respondent or protected person. [1995 c.664 §1; 2007 c.70 §31]
     125.010
Protective proceedings. (1)
Any person who is interested in the affairs or welfare of a respondent may file
a petition for the appointment of a fiduciary or entry of other protective
order.
     (2) A protective proceeding is commenced
by the filing of a petition in a court with jurisdiction over protective
proceedings.
     (3) The court may appoint any of the
following fiduciaries in a protective proceeding:
     (a) A guardian, with the powers and duties
specified in this chapter.
     (b) A conservator, with the powers and
duties specified in this chapter.
     (c) A temporary fiduciary, with the powers
and duties specified in this chapter.
     (d) Any other fiduciary necessary to
implement a protective order under ORS 125.650.
     (4) In addition to appointing a fiduciary,
or in lieu of appointing a fiduciary, the court may enter any other protective
order in a protective proceeding in the manner provided by ORS 125.650.
     (5) The court may make a determination
described in ORS 127.550 with regard to an advance directive in a protective
proceeding in which a guardian or temporary guardian has been appointed for the
principal, or in which the petition seeks the appointment of a guardian or a
temporary guardian for the principal. [1995 c.664 §2; 2001 c.396 §1]
     125.015
Jurisdiction of protective proceedings; proceedings in other states. (1) The probate courts and commissioners
provided for in ORS chapter 111 have exclusive jurisdiction of protective
proceedings.
     (2) If an
     125.020
Venue for protective proceedings. (1) Except as provided in this section, a protective proceeding must
be commenced in the county where the respondent resides or is present.
     (2) If the respondent resides in an
institution by reason of an order of a court, the proceeding may be commenced
in the county where that court sits.
     (3) If the respondent does not reside in
this state and is not present in this state, a conservatorship proceeding may
be commenced in any county where property of the respondent is located.
     (4) The court may transfer a protective
proceeding at any time to another court if the transfer is in the best
interests of the respondent or protected person. [1995 c.664 §4]
     125.025
Authority of the court in protective proceedings. (1) A court having jurisdiction over a
protective proceeding shall exercise continuing authority over the proceeding.
Subject to the provisions of this chapter, the court may act upon the petition
or motion of any person or upon its own authority at any time and in any manner
it deems appropriate to determine the condition and welfare of the respondent
or protected person and to inquire into the proper performance of the duties of
a fiduciary appointed under the provisions of this chapter.
     (2) A court having jurisdiction over a
protective proceeding in which the respondent or protected person is a minor
shall consider and apply all relevant provisions of the Indian Child Welfare
Act codified at 25 U.S.C. sections 1901 et seq.
     (3) A court having jurisdiction over a
protective proceeding may:
     (a) Compel the attendance of any person,
including respondents, protected persons, fiduciaries and any other person who
may have knowledge about the person or estate of a respondent or protected
person. The court may require those persons to respond to inquiries and produce
documents that are subject to discovery under ORCP 36.
     (b) Appoint counsel for a respondent or
protected person.
     (c) Appoint investigators, visitors and
experts to aid the court in the courtÂ’s investigation.
     (d) Exercise jurisdiction over any
transaction entered into by a fiduciary to determine if a conflict of interest
existed and enter an appropriate judgment with respect to the transaction.
     (e) Surcharge a surety for any loss caused
by failure of a fiduciary to perform a fiduciary duty or any other duty imposed
by this chapter, including a surcharge for attorney fees incurred by a
respondent or protected person by reason of the failure.
     (f) Require immediate delivery of a
protected person or property of the protected person, including records,
accounts and documents relating to that property, to the court or to a place it
designates.
     (g) Require the fiduciary to produce any
and all records that might provide information about the treatment or condition
of the protected person or property of the protected person.
     (h) Remove a fiduciary whenever that
removal is in the best interests of the protected person.
     (i) Appoint a successor fiduciary when a
fiduciary has died, resigned or been removed.
     (j) Require a respondent or protected
person to submit to a physical or mental examination pursuant to ORCP 44.
     (k) Make provisions for parenting time or
visitation or order support for any minor who is a respondent or protected
person in a protective proceeding.
     (L) Impose any conditions and limitations
upon the fiduciary that the court considers appropriate, including limitations
on the duration of the appointment. Any conditions or limitations imposed on
the fiduciary must be reflected in the letters of appointment.
     (4) When a person files a petition or
motion for a support order under subsection (3)(k) of this section:
     (a) The person shall state in the petition
or motion, to the extent known:
     (A) Whether there is pending in this state
or any other jurisdiction any type of support proceeding involving the minor,
including a proceeding brought under ORS 25.287, 107.085, 107.135, 107.431,
108.110, 109.100, 109.103, 109.165, 416.400 to 416.465, 419B.400 or 419C.590 or
ORS chapter 110; and
     (B) Whether there exists in this state or
any other jurisdiction a support order, as defined in ORS 110.303, involving
the minor.
     (b) The person shall include with the
petition or motion a certificate regarding any pending support proceeding and
any existing support order. The person shall use a certificate that is in a
form established by court rule and include information required by court rule
and paragraph (a) of this subsection.
     (5) When the court acts upon its own
authority to order support under subsection (3)(k) of this section, at least 21
days before the hearing the court shall notify the Administrator of the
Division of Child Support of the Department of Justice, or the branch office
providing support services to the county where the hearing will be held, of the
hearing. Before the hearing the administrator shall inform the court, to the
extent known:
     (a) Whether there is pending in this state
or any other jurisdiction any type of support proceeding involving the minor,
including a proceeding brought under ORS 25.287, 107.085, 107.135, 107.431,
108.110, 109.100, 109.103, 109.165, 416.400 to 416.465, 419B.400 or 419C.590 or
ORS chapter 110; and
     (b) Whether there exists in this state or
any other jurisdiction a support order, as defined in ORS 110.303, involving
the minor.
     (6) The Judicial Department and the
Department of Justice may enter into an agreement regarding how the courts give
the notice required under subsection (5) of this section to the Department of
Justice and how the Department of Justice gives the information described in
subsection (5)(a) and (b) to the courts.
     (7) If the court finds that a conservator
should be appointed, the court may exercise all the powers over the estate and
affairs of the protected person that the protected person could exercise if
present and not under disability, except the power to make a will. The court
shall exercise those powers for the benefit of the protected person and members
of the household of the protected person.
     (8) The powers of the court in protective
proceedings may be exercised by the court directly or through a fiduciary. [1995
c.664 §5; 1997 c.707 §27; 2003 c.116 §11]
     125.030
Use of limited judgment in protective proceedings. (1) The appointment of a fiduciary in a
protective proceeding shall be made by limited judgment.
     (2) The court in a protective proceeding
may enter a limited judgment only for the following decisions of the court:
     (a) A decision on an objection to an
accounting.
     (b) A decision on placement of a protected
person.
     (c) A decision on the sale of the
residence of a protected person.
     (d) Such decisions of the court as may be
specified by rules or orders of the Chief Justice of the Supreme Court under
ORS 18.028.
     (3) A court may enter a limited judgment
under subsection (2) of this section only if the court determines that there is
no just reason for delay. The judgment document need not reflect the courtÂ’s
determination that there is no just reason for delay. [2005 c.568 §36]
PROCEDURE IN
PROTECTIVE PROCEEDINGS
     125.050
Application of ORCP and
     125.055
Petitions in protective proceedings. (1) A petition in a protective proceeding that seeks the appointment
of a fiduciary must designate the type of fiduciary that the petitioner seeks
to have appointed. If the petition does not request the appointment of a
fiduciary, or if the petition requests both the appointment of a fiduciary and
some other protective order, the petition must contain a statement of the
nature of the protective order requested. The caption of the petition must
reflect the type of fiduciary whose appointment is requested or, if the
appointment of a fiduciary is not requested, the nature of the protective order
requested. An original and duplicate copy of the petition must be filed with
the court.
     (2) A petition in a protective proceeding
must contain the following information to the extent that the petitioner is
aware of the information or to the extent that the petitioner is able to
acquire the information with reasonable effort:
     (a) The name, age, residence address and
current location of the respondent.
     (b) The interest of the petitioner.
     (c) The name, age and address of the
petitioner and any person nominated as fiduciary in the petition and the
relationship of the nominated person to the respondent.
     (d) A statement as to whether the person
nominated to be fiduciary has been convicted of a crime, has filed for or
received protection under the bankruptcy laws or has had a license revoked or
canceled that was required by the laws of any state for the practice of a
profession or occupation. If the nominated person has been convicted of a
crime, filed for or received protection under bankruptcy laws or had a
professional or occupational license revoked or canceled, the petition shall
contain a statement of the circumstances surrounding those events. If the
person nominated is not the petitioner, the statement must indicate that the
person nominated is willing and able to serve.
     (e) The name and address of any fiduciary
that has been appointed for the respondent by a court of any state, any trustee
for a trust established by or for the respondent, any person appointed as a
health care representative under the provisions of ORS 127.505 to 127.660 and
any person acting as attorney-in-fact for the respondent under a power of
attorney.
     (f) The name and address of the respondent’s
treating physician and any other person who is providing care to the
respondent.
     (g) The factual information that supports
the request for the appointment of a fiduciary or entry of other protective
order, and the names and addresses of all persons who have information that
would support a finding that an adult respondent is incapacitated or
financially incapable.
     (h) A statement that indicates whether the
nominated person intends to place the respondent in a mental health treatment
facility, a nursing home or other residential facility.
     (i) A general description of the estate of
the respondent and the respondentÂ’s sources of income and the amount of that
income.
     (j) A statement indicating whether the
person nominated as fiduciary is a public or private agency or organization
that provides services to the respondent or an employee of a public or private
agency or organization that provides services to the respondent.
     (3) In addition to the requirements of
subsection (2) of this section, if a petition seeks appointment of a guardian,
the petition must contain a statement on whether the guardian will exercise any
control over the estate of the respondent. If the guardian will exercise any
control over the estate of the respondent, the petition must contain a
statement of the monthly income of the respondent, the sources of the
respondentÂ’s income, and the amount of any moneys that the guardian will be
holding for the respondent at the time of the appointment. If the petition
seeks the appointment of a guardian for an adult respondent or of a temporary
fiduciary who will exercise the powers of a guardian for an adult respondent,
the petition must contain a statement notifying the court that a visitor must
be appointed.
     (4) In addition to the requirements of
subsection (2) of this section, if a petition seeks appointment of a
conservator or a temporary fiduciary who will exercise the powers of a
conservator or if a petition seeks a protective order relating to the estate of
the respondent, the petition must contain the petitionerÂ’s estimate of the
value of the estate.
     (5) A petitioner may join parties in a
petition in the manner provided by ORCP 28 for the joining of defendants.
     (6) The court shall review a petition
seeking appointment of a guardian and shall dismiss the proceeding without
prejudice, or require that the petition be amended, if the court determines
that the petition does not meet the requirements of this section. [1995 c.664 §7;
1997 c.717 §4; 2003 c.227 §3]
     125.060
Who must be given notice.
(1) The notices required by this section must be given to all persons whose
identities and addresses can be ascertained in the exercise of reasonable
diligence by the person required to give the notice.
     (2) Notice of the filing of a petition for
the appointment of a fiduciary or entry of other protective order must be given
by the petitioner to the following persons:
     (a) The respondent, if the respondent has
attained 14 years of age.
     (b) The spouse, parents and adult children
of the respondent.
     (c) If the respondent does not have a
spouse, parent or adult child, the person or persons most closely related to
the respondent.
     (d) Any person who is cohabiting with the
respondent and who is interested in the affairs or welfare of the respondent.
     (e) Any person who has been nominated as
fiduciary or appointed to act as fiduciary for the respondent by a court of any
state, any trustee for a trust established by or for the respondent, any person
appointed as a health care representative under the provisions of ORS 127.505
to 127.660 and any person acting as attorney-in-fact for the respondent under a
power of attorney.
     (f) If the respondent is a minor, the
person who has exercised principal responsibility for the care and custody of
the respondent during the 60-day period before the filing of the petition.
     (g) If the respondent is a minor and has
no living parents, any person nominated to act as fiduciary for the minor in a
will or other written instrument prepared by a parent of the minor.
     (h) If the respondent is receiving moneys
paid or payable by the United States through the Department of Veterans
Affairs, a representative of the United States Department of Veterans Affairs
regional office that has responsibility for the payments to the protected
person.
     (i) If the respondent is receiving moneys
paid or payable for public assistance provided under ORS chapter 411 or 414 by
the State of
     (j) If the respondent is committed to the
legal and physical custody of the Department of Corrections, the Attorney
General and the superintendent or other officer in charge of the facility in
which the respondent is confined.
     (k) If the respondent is a foreign
national, the consulate for the respondentÂ’s country.
     (L) Any other person that the court
requires.
     (3) Notice of a motion for the termination
of the protective proceedings, for removal of a fiduciary, for modification of
the powers or authority of a fiduciary, for approval of a fiduciaryÂ’s actions
or for protective orders in addition to those sought in the petition must be
given by the person making the motion to the following persons:
     (a) The protected person, if the protected
person has attained 14 years of age.
     (b) Any person who has filed a request for
notice in the proceedings.
     (c) Except for a fiduciary who is making a
motion, any fiduciary who has been appointed for the protected person.
     (d) If the protected person is receiving
moneys paid or payable by the United States through the Department of Veterans
Affairs, a representative of the United States Department of Veterans Affairs
regional office that has responsibility for the payments to the protected
person.
     (e) If the protected person is committed
to the legal and physical custody of the Department of Corrections, the
Attorney General and the superintendent or other officer in charge of the
facility in which the protected person is confined.
     (f) Any other person that the court
requires.
     (4) A request for notice under subsection
(3)(b) of this section must be in writing and include the name, address and
phone number of the person requesting notice. A copy of the request must be
mailed by the person making the request to the petitioner or to the fiduciary
if a fiduciary has been appointed. The original request must be filed with the
court. The person filing the request must pay the fee specified by ORS 21.310
(5).
     (5) A person who files a request for
notice in the proceedings in the manner provided by subsection (4) of this
section is entitled to receive notice from the fiduciary of any motion
specified in subsection (3) of this section and of any other matter to which a
person listed in subsection (2) of this section is entitled to receive notice
under a specific provision of this chapter.
     (6) If the Department of Human Services is
nominated as guardian for the purpose of consenting to the adoption of a minor,
the notice provided for in this section must also be given to the minorÂ’s
brothers, sisters, aunts, uncles and grandparents.
     (7) In addition to the requirements of
subsection (2) of this section, notice of the filing of a petition for the
appointment of a guardian for a person who is alleged to be incapacitated must
be given by the petitioner to the following persons:
     (a) Any attorney who is representing the
respondent in any capacity.
     (b) If the respondent is a resident of a
nursing home or residential facility, or if the person nominated to act as
fiduciary intends to place the respondent in a nursing home or residential
facility, the office of the Long Term Care Ombudsman.
     (c) If the respondent is a resident of a
mental health treatment facility or a residential facility for individuals with
developmental disabilities, or if the person nominated to act as fiduciary
intends to place the respondent in such a facility, the system described in ORS
192.517 (1).
     (8) In addition to the requirements of
subsection (3) of this section, in a protective proceeding in which a guardian
has been appointed, notice of the motions specified in subsection (3) of this
section must be given by the person making the motion to the following persons:
     (a) Any attorney who represented the
protected person at any time during the protective proceeding.
     (b) If the protected person is a resident
of a nursing home or residential facility, or if the motion seeks authority to
place the protected person in a nursing home or residential facility, the
office of the Long Term Care Ombudsman.
     (c) If the protected person is a resident
of a mental health treatment facility or a residential facility for individuals
with developmental disabilities, or if the motion seeks authority to place the
protected person in such a facility, the system described in ORS 192.517 (1).
     (9) A respondent or protected person may
not waive the notice required under this section.
     (10) The requirement that notice be served
on an attorney for a respondent or protected person under subsection (7)(a) or
(8)(a) of this section does not impose any responsibility on the attorney
receiving the notice to represent the respondent or protected person in the
protective proceeding. [1995 c.664 §8; 1997 c.717 §5; 1999 c.122 §3; 1999 c.775
§2; 2001 c.900 §22; 2003 c.143 §3; 2005 c.22 §98; 2005 c.381 §22; 2005 c.498 §2]
     125.065
Manner of giving notice. (1)
Notice of the filing of a petition must be personally served on any respondent
who has attained 14 years of age. Notice of a petition must be personally
served on the parents of a respondent if the petition is based on the fact that
the respondent is a minor. The notice may not be served on the respondent by
the visitor appointed by the court. The notice shall be written in language
reasonably understandable by the respondent. The notice must be printed in type
size equal to at least 12-point type.
     (2) Except as provided in subsection (1)
of this section, the notices required under ORS 125.060 may be mailed to the
last-known address of the person. If the address or identity of any person is
not known and cannot be ascertained with reasonable diligence, notice of the
filing of a petition may be given by publishing at least once a week for three
consecutive weeks a copy of the notice in a newspaper having general circulation
in the county where the hearing is to be held. The last publication of the
notice must be at least 15 days before the final date for the filing of
objections.
     (3) The date of personal service or
mailing under this section must be at least 15 days before the final date for
the filing of objections to the petition or motion. If the proceedings are
subject to the Uniform Child Custody Jurisdiction and Enforcement Act provided
for in ORS 109.701 to 109.834, the date of service or mailing must be at least
21 days before the final date for the filing of objections to the petition or
motion.
     (4) The court for good cause shown may
provide for a different method or time of giving notice under this section.
     (5) Proof of the giving of notice must be
filed in the proceeding before the court enters any order on a petition or
motion. [1995 c.664 §9; 1999 c.649 §53]
     125.070
Contents of notice. (1) The
notice required by ORS 125.060 must contain the following:
     (a) The name, address and telephone number
of the petitioner or the person making the motion, and the relationship of the
petitioner or person making the motion to the respondent.
     (b) A copy of the petition or motion.
     (c) A statement on where objections may be
made or filed and the deadline for making or filing those objections.
     (d) If a hearing has been set, the date,
time and place of the hearing.
     (2) In addition to the requirements of
subsection (1) of this section, a notice of a petition for the appointment of a
conservator for a respondent who is alleged to be financially incapable or a
notice of a petition for the appointment of a guardian or conservator for a
respondent who is a minor that is served on the respondent must contain the
following:
     (a) An explanation of the purpose and
possible consequences of the petition.
     (b) A statement that financial resources
of the respondent may be used to pay court-approved expenditures of the
proceeding.
     (c) Information regarding any free or
low-cost legal services and other relevant services available in the area.
     (d) Information on any appointment of a
visitor and the role of the visitor.
     (e) A statement of the rights of the
respondent as follows:
     (A) The right to be represented by an
attorney.
     (B) The right to file a written or oral
objection.
     (C) The right to request a hearing.
     (D) The right to present evidence and
cross-examine witnesses at any hearing.
     (E) The right to request at any time that
the power of the fiduciary be limited by the court.
     (F) The right to request at any time the
removal of the fiduciary or a modification of the protective order.
     (3) In addition to the requirements of
subsection (1) of this section, a notice of a petition for the appointment of a
guardian for a respondent who is alleged to be incapacitated must contain a notice,
printed in 14-point type, in substantially the following form:
______________________________________________________________________________
NOTICE TO RESPONDENT
To:
Respondent______________:
______________,
Petitioner, who is your ______________ (relationship to respondent), or
that is an agency or business that provides guardianship services, has asked a
judge for the power to make decisions for you. The judge has been asked to give
this person, agency or business the authority to make the following decisions
for you (mark the appropriate spaces):
     __ Medical and health care decisions, including
decisions on which doctors you will see and what medications and treatments you
will receive.
     __ Residential decisions, including decisions on
whether you can stay where you are currently living or be moved to another
place.
     __ Financial decisions, including decisions on
paying your bills and decisions about how your money is spent.
     __ Other
decisions: ___________
     ______________________.
     YOUR MONEY MAY BE USED IF THE JUDGE
APPOINTS A GUARDIAN FOR YOU. YOU MAY BE ASKED TO PAY FOR THE TIME AND EXPENSES
OF THE GUARDIAN, THE TIME AND EXPENSES OF THE PETITIONERÂ’S ATTORNEY, THE TIME
AND EXPENSES OF YOUR ATTORNEY, FILING FEES AND OTHER COSTS.
     YOU MUST TELL SOMEONE AT THE COURTHOUSE
BEFORE ___________ (DATE) IF YOU OPPOSE HAVING SOMEONE ELSE MAKE THESE
DECISIONS FOR YOU.
     OBJECTIONS:
     You can write to the judge if you do not
want someone else making decisions for you. The judgeÂ’s address is: _________.
     You have the right to object to the
appointment of a guardian by saying you want to continue to make your own
decisions. If you do not want another person, agency or business making
decisions for you, you can object. If you do not want ________ (Proposed Guardian)
to make these decisions for you, you can object. If you do not want your money
to be used to pay for these expenses, you can object.
     You can object any time after the judge
has appointed a guardian. You can ask the judge at any time to limit the kinds
of decisions that the guardian makes for you so that you can make more
decisions for yourself. You can also ask the judge at any time to end the
guardianship.
     THE HEARING:
     The judge will hold a hearing if you do
not want a guardian, do not want this particular person to act as your guardian
or do not want your money used this way. At the hearing, the judge will listen
to what you and others have to say about whether you need someone else to make
decisions for you, who that person should be and whether your money should be
spent on these things. You can have your witnesses tell the judge why you do
not need a guardian and you can bring in records and other information about
why you think that you do not need a guardian. You can ask your witnesses
questions and other witnesses questions.
     THE COURT VISITOR:
     The judge will appoint someone to
investigate whether you need a guardian to make decisions for you. This person
is called a “visitor.” The visitor works for the judge and does not work for
the person who filed the petition asking the judge to appoint a guardian for
you, for you or for any other party. The visitor will come and talk to you
about the guardianship process, about whether you think that you need a
guardian and about who you would want to be your guardian if the judge decides
that you need a guardian. The visitor will talk to other people who have
information about whether you need a guardian. The visitor will make a report
to the judge about whether what the petition says is true, whether the visitor
thinks that you need a guardian, whether the person proposed as your guardian
is able and willing to be your guardian, who would be the best guardian for you
and what decisions the guardian should make for you. If there is a hearing
about whether to appoint a guardian for you, the visitor will be in court to
testify.
     You can tell the visitor if you don’t want
someone else making decisions for you when the visitor comes to talk with you
about this matter.
     LEGAL SERVICES:
     You can call a lawyer if you don’t want
someone else making decisions for you. If you donÂ’t have a lawyer, you can ask
the judge whether a lawyer can be appointed for you.
     There may be free or low-cost legal
services or other relevant services in your local area that may be helpful to
you in the guardianship proceeding. For information about these services, you
can call the following telephone numbers ___________ and ask to talk to people
who can help you find legal services or other types of services.
     OBJECTION FORM:
     You can mark the blue sheet (Respondent’s
Objection) that is attached to this form if you do not want someone else to
make your decisions for you. You can give the blue sheet to the visitor when
the visitor comes to talk with you about this, you can show it to your attorney
or you can mail it to the judge.
______________________________________________________________________________
     (4) In addition to the requirements of
subsection (1) of this section, a notice of a petition that is served on a
respondent who is alleged to be incapacitated must contain an objection form,
printed on blue paper in 14-point type, in substantially the following form:
______________________________________________________________________________
IN THE ________ COURT
OF THE STATE OF
FOR THE COUNTY OF ________
                                               )
Case No. _____
(Case Title)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â )
                                               )
RESPONDENTÂ’S
                                               )
OBJECTION
                                               )
                                               )
                                               )
I object to the
petition for the following reasons:
     __ I
do not want anyone else making any of my decisions for me.
     __ I
do not want ___________ making any decisions for me.
     __ I
do not want ___________ to make the following decisions for me:
           _____________________
           _____________________
_____________________
(Signature of Respondent)
_____________________
(Date)
GIVE TO THE VISITOR OR MAIL TO:
_____________________
______________________________________________________________________________
     (5) In addition to the requirements of
subsection (1) of this section, a notice of a petition provided to a person
other than the respondent must contain a statement as follows:
______________________________________________________________________________
     NOTICE: If you wish to receive copies of
future filings in this case, you must inform the judge and the person named as
petitioner in this notice. You must inform the judge by filing a request for
notice and paying any applicable fee. The request for notice must be in
writing, must clearly indicate that you wish to receive future filings in the
proceedings and must contain your name, address and phone number. You must
notify the person named as petitioner by mailing a copy of the request to the
petitioner. Unless you take these steps, you will receive no further copies of
the filings in the case.
______________________________________________________________________________
[1995 c.664 §10;
1999 c.775 §3; 2001 c.416 §1]
     125.075
Presentation of objections.
(1) Any person who is interested in the affairs or welfare of a respondent or
protected person may present objections to a petition or to a motion in a
protective proceeding, including but not limited to:
     (a) Any person entitled to receive notice
under ORS 125.060.
     (b) Any stepparent or stepchild of the
respondent or protected person.
     (c) Any other person the court may allow.
     (2) Objections to a petition may be either
written or oral. Objections to a motion must be in writing. Objections to a
petition or to a motion must be made or filed with the court within 15 days
after notice of the petition or motion is served or mailed in the manner
prescribed by ORS 125.065. The court shall designate a place where oral
objections may be made. If a person appears within the time allowed at the
place designated by the court for the purpose of making oral objections, the
clerk of the court shall provide a means of reducing the oral objections to a
signed writing for the purpose of filing the objection.
     (3) If objections are presented by any of
the persons listed in subsection (1) of this section, the court shall schedule
a hearing on the objections. The petitioner or person making the motion shall
give notice to all persons entitled to notice under ORS 125.060 (3) of the
date, time and place of the scheduled hearing at least 15 days before the date
set for hearing. Notice shall be given in the manner prescribed by ORS 125.065.
     (4) Notwithstanding ORS 21.310, the court
shall not charge or collect any fee from a respondent or protected person for
the filing of objections under the provisions of this section or for the filing
of any motion by a respondent or protected person.
     (5) The court for good cause shown may
provide for a different method or time of giving notice under subsection (3) of
this section. [1995 c.664 §11]
     125.080
Hearing. (1) The court may
require that a hearing be held on any petition or motion in a protective
proceeding.
     (2) A hearing must be held on a petition
or motion if an objection is filed to the petition or motion and the objection
is not withdrawn before the time scheduled for the hearing.
     (3) The respondent or protected person may
appear at a hearing in person or by counsel.
     (4) If the court requires that a hearing
be held on a petition, or a hearing is otherwise required under this section,
the court may appoint counsel for the respondent unless the respondent is
already represented by counsel. [1995 c.664 §12; 1999 c.775 §1; 2003 c.227 §4]
     125.085
Motions after appointment of a fiduciary. (1) The court may remove a fiduciary on the motion of any person who
is entitled to file an objection to a petition under the provisions of ORS
125.075, or upon the courtÂ’s own motion.
     (2) On motion of the fiduciary, the court
may accept the resignation of the fiduciary and make any other order that may
be appropriate, including appointment of a successor fiduciary.
     (3) Upon motion by any person who is
entitled to file an objection to a petition under the provisions of ORS
125.075, or upon the courtÂ’s own motion, the court may order a modification of
the powers or authority of the fiduciary or termination of the protective proceedings.
[1995 c.664 §13]
     125.090
Termination of proceedings.
(1) A protected person is entitled to the same rights and procedures provided
in the original proceedings when a motion to terminate the protective
proceeding is filed and a fiduciary opposes the motion. The fiduciary has the
burden of proving by clear and convincing evidence that a protected person
continues to be incapacitated or financially incapable if a motion to terminate
a protective proceeding is filed and the fiduciary opposes the motion. A
visitor must be appointed if a motion for termination of a guardianship is
filed and objections are filed to the motion. A visitor may be appointed if a
motion for termination of a conservatorship is filed.
     (2) The court may terminate protective proceedings
upon motion after determining any of the following:
     (a) The appointment of a fiduciary or
other protective order was made because the protected person was a minor, and
the protected person has attained the age of majority.
     (b) The appointment of a fiduciary or
other protective order was made because the protected person was incapacitated,
and the protected person is no longer incapacitated.
     (c) The appointment of a fiduciary or
other protective order was made because the protected person was financially
incapable, and the protected person is no longer financially incapable or the
conditions of ORS 125.535 have been met.
     (d) The protected person has died.
     (e) The best interests of the protected
person would be served by termination of the proceedings.
     (3) The court shall terminate a protective
proceeding by entry of a general judgment. [1995 c.664 §14; 2005 c.568 §37]
     125.095
Compensation and expenses payable in protective proceedings. (1) Funds of the protected person may be
used to pay reasonable compensation to any visitor, attorney, physician,
fiduciary or temporary fiduciary for services rendered in the protective
proceeding or for services rendered on behalf of the fiduciary or protected
person.
     (2) Prior court approval is required before
the payment of the fees of any visitor or physician if the fees are incurred
for services relating to proceedings arising out of the filing of an objection
to a petition or motion.
     (3) Prior court approval is required
before payment of compensation to a fiduciary or to the attorneys for a
fiduciary, except that prior court approval is not required before payment of
compensation to a conservator if the conservator is a trust company that has
complied with ORS 709.030, or if the conservator is the Department of VeteransÂ’
Affairs. [1995 c.664 §15; 1997 c.631 §409; 2005 c.625 §65]
VISITORS
     125.150
Appointment of visitors. (1)
The court shall appoint a visitor upon the filing of a petition in a protective
proceeding that seeks the appointment of a guardian for an adult respondent or
temporary fiduciary who will exercise the powers of a guardian for an adult
respondent. The court may appoint a visitor in any other protective proceeding
or in a proceeding under ORS 109.329.
     (2) A visitor may be an officer, employee
or special appointee of the court. The person appointed may not have any
personal interest in the proceedings. The person appointed must have training
or expertise adequate to allow the person to appropriately evaluate the
functional capacity and needs of a respondent or protected person, or each
petitioner and the person to be adopted under ORS 109.329. The court shall
provide a copy of the petition and other filings in the proceedings that may be
of assistance to the visitor.
     (3) A visitor appointed by the court under
this section shall interview a person nominated or appointed as fiduciary and
the respondent or protected person, or each petitioner and the person to be
adopted under ORS 109.329, personally at the place where the respondent or protected
person, or each petitioner or the person to be adopted under ORS 109.329, is
located.
     (4) Subject to any law relating to
confidentiality, the visitor may interview any physician or psychologist who
has examined the respondent or protected person, or each petitioner under ORS
109.329, the person or officer of the institution having the care, custody or
control of the respondent or protected person, or each petitioner under ORS
109.329, and any other person who may have relevant information.
     (5) If requested by a visitor under
subsection (4) of this section, a physician or psychologist who has examined
the respondent or protected person, or each petitioner under ORS 109.329, may,
with patient authorization or in response to a court order in accordance with
ORCP 44 or a subpoena under ORCP 55, provide any relevant information the
physician or psychologist has regarding the respondent or protected person, or
each petitioner under ORS 109.329.
     (6) A visitor shall determine whether it
appears that the respondent or protected person, or each petitioner or the
person to be adopted under ORS 109.329, is able to attend the hearing and, if
able to attend, whether the respondent or protected person, or each petitioner
or the person to be adopted under ORS 109.329, is willing to attend the
hearing.
     (7) If a petition is filed seeking the
appointment of a guardian for an adult respondent, a visitor shall investigate
the following matters:
     (a) The inability of the respondent to
provide for the needs of the respondent with respect to physical health, food,
clothing and shelter;
     (b) The location of the respondent’s
residence and the ability of the respondent to live in the residence while
under guardianship;
     (c) Alternatives to guardianship
considered by the petitioner and reasons why those alternatives are not
available;
     (d) Health or social services provided to
the respondent during the year preceding the filing of the petition, when the
petitioner has information as to those services;
     (e) The inability of the respondent to
resist fraud or undue influence; and
     (f) Whether the respondent’s inability to
provide for the needs of the respondent is an isolated incident of negligence
or improvidence, or whether a pattern exists.
     (8) If a petition is filed seeking the
appointment of a fiduciary, a visitor shall determine whether the respondent
objects to:
     (a) The appointment of a fiduciary; and
     (b) The nominated fiduciary or prefers
another person to act as fiduciary.
     (9) If a petition is filed seeking the
appointment of a conservator in addition to the appointment of a guardian, a
visitor shall investigate whether the respondent is financially incapable. The
visitor shall interview the person nominated to act as conservator and shall
interview the respondent personally at the place where the respondent is
located.
     (10) A visitor shall determine whether the
respondent or protected person, or each petitioner or the person to be adopted
under ORS 109.329, wishes to be represented by counsel and, if so, whether the
respondent or protected person, or each petitioner or the person to be adopted
under ORS 109.329, has retained counsel and, if not, the name of an attorney
the respondent or protected person, or each petitioner or the person to be
adopted under ORS 109.329, wishes to retain.
     (11) If the respondent or protected
person, or each petitioner or the person to be adopted under ORS 109.329, has
not retained counsel, a visitor shall determine whether the respondent or
protected person, or each petitioner or the person to be adopted under ORS
109.329, desires the court to appoint counsel.
     (12) If the respondent or protected
person, or each petitioner or the person to be adopted under ORS 109.329, does
not plan to retain counsel and has not requested the appointment of counsel by
the court, a visitor shall determine whether the appointment of counsel would
help to resolve the matter and whether appointment of counsel is necessary to
protect the interests of the respondent or protected person, or each petitioner
or the person to be adopted under ORS 109.329. [1995 c.664 §16; 2003 c.89 §1;
2003 c.227 §5; 2003 c.579 §§3,4]
     125.155
VisitorÂ’s report. (1) A
visitor shall file a report in writing with the court within 15 days after the
visitor is appointed. The court may grant additional time for filing the
visitorÂ’s report upon a showing of necessity and good cause.
     (2) The report of the visitor appointed at
the time a petition is filed requesting the appointment of a fiduciary must
include the following:
     (a) A statement of information gathered by
the visitor relating to the correctness of the allegations contained in the
petition, whether the appointment of a fiduciary is necessary and whether the
nominated fiduciary is qualified and willing to serve.
     (b) The name, address and telephone number
of each person interviewed for the report, the date of the interview and the
relationship of the person interviewed to the respondent.
     (c) The recommendations of the visitor
with regard to the suitability of the nominated fiduciary, any limitations that
should be imposed on the fiduciary and the need for further evaluation.
     (d) The recommendation of the visitor on
any issue the court specifically asks the visitor to investigate regarding the
propriety of appointing a fiduciary for the respondent.
     (e) The visitor’s determinations required
by ORS 125.150.
     (f) Any express communication made by the
respondent relating to the desires of the respondent regarding representation
by counsel.
     (g) Any express communication made by the
respondent with respect to whether the respondent is willing to attend a
hearing, wishes to contest the appointment of a fiduciary, objects to the
nominated fiduciary or prefers another person act as fiduciary.
     (3) The State Court Administrator may
prescribe one or more forms to be used by visitors for filing their reports.
     (4) As soon as possible after a report is
filed with the court under the provisions of this section, the clerk of the
court shall mail copies of the report to any person who has filed with the court
a specific request for a copy of the report. A request made under ORS 125.060
(3)(b) does not meet the requirements of this subsection unless the request
specifically requests a copy of the visitorÂ’s report.
     (5) The visitor must be present at the hearing
on any objections to the appointment of a fiduciary. A visitor is entitled to
reasonable compensation for attendance at the hearing. The court shall notify
the visitor of the time and place of any hearing on objections to the
appointment. [1995 c.664 §17; 2003 c.227 §6]
     125.160
Subsequent appointment of visitor. At any time after the appointment of a fiduciary, the court may
appoint a visitor. The court may require the visitor to perform any duty the
visitor could have performed if appointed at the time the fiduciary was
appointed, including interviewing relevant persons, examining relevant records,
reporting in writing to the court and being present at any hearing. [1995 c.664
§18]
     125.165
Qualifications and standards for visitors. (1) A presiding judge shall by court order establish:
     (a) Qualifications for persons serving as
visitors for the court, in addition to those qualifications established by this
section; and
     (b) Standards and procedures to be used by
visitors in the performance of their duties.
     (2) A visitor may be an employee of the
court. The visitor may not have any personal interest in the respondent or
protected person, or any pecuniary or financial interest in the proceedings, if
those interests could compromise or otherwise affect the decisions of the
visitor. A visitor may not receive compensation for services rendered as a
fiduciary for two or more protected persons at the same time who are not
related to the fiduciary.
     (3) A visitor must:
     (a) Have the training and expertise adequate
to allow the person to conduct the interviews and make the recommendations
required under ORS 125.150 and 125.155, to communicate with, assess and
interact with respondents and protected persons, and to perform the other
duties required of a visitor; and
     (b) Demonstrate sufficient knowledge of
the law so as to be able to inform a respondent or protected person of the
nature and effect of a protective proceeding, to inform a respondent or
protected person of the rights of the respondent or protected person in the
protective proceeding, to answer the questions of a respondent or protected
person and to inform fiduciaries concerning their powers and duties. [1999
c.775 §10; 2003 c.227 §2]
     125.170
Payment and reimbursement for visitor services. (1) Not more than once each calendar year,
the court may charge a respondent or protected person for any visitor services
provided during the year. The court may order reimbursement to the state from
the assets of the respondent or protected person for the cost of any interview
or report unless the court finds that the assessment would impose a hardship on
the respondent or protected person. If the respondent or protected person is
receiving public assistance, there is a rebuttable presumption that charging a
respondent or protected person for the services of a visitor would impose a
hardship.
     (2) The presiding judge by court order
shall establish fees for visitors conducting interviews and preparing reports.
     (3) All amounts collected under this
section in reimbursement for visitor services shall be forwarded to the State
Court Administrator and are continuously appropriated to the State Court
Administrator. Funds appropriated to the State Court Administrator under this
section may be used by the State Court Administrator for the purpose of funding
visitor services provided under ORS 125.150 and 125.155. [1999 c.775 §9; 2003
c.227 §1]
FIDUCIARIES
GENERALLY
     125.200
Preferences in appointing fiduciary. The court shall appoint the most suitable person who is willing to
serve as fiduciary after giving consideration to the specific circumstances of
the respondent, any stated desire of the respondent, the relationship by blood
or marriage of the person nominated to be fiduciary to the respondent, any
preference expressed by a parent of the respondent, the estate of the
respondent and any impact on ease of administration that may result from the
appointment. [1995 c.664 §19]
     125.205
Persons not qualified to act as fiduciary. A person is not qualified to serve as a fiduciary if the person is
incapacitated, financially incapable, a minor or is acting as a health care
provider, as defined in ORS 127.505, for the protected person. [1995 c.664 §20]
     125.210
Notice to court of criminal conviction, revocation or cancellation of
occupational license or bankruptcy proceedings. (1) A person nominated as a fiduciary who
has been convicted of a crime, has filed for or received protection under the
bankruptcy laws or has had a license revoked or canceled that was required by
the laws of any state for the practice of a profession or occupation must
inform the court of the circumstances of those events before the person is
appointed. If the person nominated to be a fiduciary is also the petitioner,
the information required by this section may be provided in the petition for
appointment of a fiduciary in the manner specified by ORS 125.055.
     (2) A person who has been appointed as a
fiduciary who is convicted of a crime, files for or receives protection under
the bankruptcy laws or has a license revoked or canceled that is required by
the laws of any state for the practice of a profession or occupation must
inform the court of the circumstances of those events immediately.
     (3) A person who is required to give
notice to the court under subsection (2) of this section must also give notice
to those persons listed in ORS 125.060 (3).
     (4) The court may decline to appoint a
person as fiduciary, or may remove a person as fiduciary, if the person fails
to comply with the provisions of this section. [1995 c.664 §21]
     125.215
Acceptance of appointment as fiduciary; notice of proceedings to fiduciary. (1) If the person filing a petition in a
protective proceeding is also nominated in the petition as fiduciary for the
respondent, the signature of the petitioner on the petition acts as acceptance
of appointment upon entry of an order appointing the petitioner as fiduciary.
If the person nominated as a fiduciary is not the petitioner, the person
nominated must file an acceptance of the appointment before the entry of the
order appointing the fiduciary.
     (2) A fiduciary must promptly file with
the court any change in the name, residence or post-office address of the
fiduciary.
     (3) The court has personal jurisdiction
over any person who accepts appointment as a fiduciary for the purpose of any
matter relating to the protective proceeding, whether the person is a resident
or nonresident of this state.
     (4) Notice of an objection, motion or
other matter in a protective proceeding may be personally served on the
fiduciary or mailed to the fiduciary or the fiduciaryÂ’s attorney by ordinary
mail at the address listed in the court records and to any address for the
fiduciary or the fiduciaryÂ’s attorney known to the person giving notice. [1995
c.664 §22]
     125.220 [1995 c.664 §23; repealed by 1999 c.774 §1
(125.221 enacted in lieu of 125.220)]
     125.221
Conflicts of interest. (1) A
fiduciary may employ a person in which the fiduciary has a pecuniary or
financial interest only after disclosing the nature of the interest to the
court if the person is employed for the purpose of providing direct services to
the protected person or for the purpose of providing services to the fiduciary
that directly affect the protected person. Before the person is employed, the
fiduciary must provide the court with the following:
     (a) A full and accurate disclosure of the
pecuniary or financial interest of the fiduciary in the person.
     (b) A full and accurate disclosure of the
services to be performed by the person.
     (c) A full and accurate disclosure of the
anticipated costs to the estate in using the person to provide the services.
     (2) In addition to the disclosures
required by subsection (1) of this section, after making such inquiry as the
court deems appropriate, the court may require additional disclosures for the
purpose of assessing whether the pecuniary or financial interest of the
fiduciary could compromise or otherwise affect decisions made by the fiduciary
in carrying out the duties of the fiduciary.
     (3) The continuing authority of a court
over protective proceedings under ORS 125.025 includes the authority to
supervise and inquire into:
     (a) Whether the fiduciary by employing a
person in which the fiduciary has a pecuniary or financial interest is acting
reasonably to accomplish the purposes for which the fiduciary was appointed.
     (b) Whether the employment of the person
by the fiduciary is necessary to provide the services efficiently and
effectively.
     (c) The extent that the pecuniary or
financial interest of the person employed by the fiduciary could compromise or
otherwise affect the decisions made by the fiduciary in carrying out the duties
of the fiduciary.
     (4) In addition to the disclosures
required by subsections (1) and (2) of this section, prior court approval is
required for payment of compensation to a person who is the spouse, parent or
child of the fiduciary or to a business entity in which the spouse, parent or
child of the fiduciary has an ownership interest and that is employed by the
fiduciary to provide direct services to a protected person or to provide
services to the fiduciary that directly affect the protected person. The
fiduciary must provide the court with the following information:
     (a) The specific services to be provided;
     (b) The qualifications of the person
providing the services;
     (c) The rate of compensation charged by
the person; and
     (d) Any other information relevant to
either the person providing the services or the services being provided to the
protected person, including, but not limited to, loss of a professional license
or a criminal conviction.
     (5) The court may not approve any fees or
expenses requested by the fiduciary to the extent that the combined fees of the
fiduciary and the person employed by the fiduciary under this section exceed
the amount the court finds would have been appropriate for payment to the
fiduciary if the fiduciary had provided the services alone.
     (6) A fiduciary has a pecuniary or
financial interest in another person for the purposes of this section if the
fiduciary, or any person related to, employed by or affiliated with the
fiduciary has:
     (a) Any direct or indirect ownership
interest in the person;
     (b) A business association with the
person; or
     (c) Any financial involvement with the
person.
     (7) A fiduciary has a pecuniary or
financial interest in another person for the purposes of this section if the
fiduciary, or any person related to, employed by or affiliated with the
fiduciary, receives remuneration or any other financial benefit from the
person, without regard to whether that remuneration or benefit is directly tied
to the services provided to the fiduciary or protected person.
     (8) In addition to the grounds specified
in subsections (6) and (7) of this section, a fiduciary has a pecuniary or
financial interest in another person for the purposes of this section if the
relationship between the fiduciary and other person is such that the
relationship could compromise or otherwise affect decisions made by the
fiduciary in carrying out the duties of the fiduciary.
     (9) A fiduciary employs a person for the
purposes of this section whether the person is engaged as an employee or as an
independent contractor. [1999 c.774 §2 (enacted in lieu of 125.220); 2003 c.392
§1]
     125.225
Removal of fiduciary. (1) A
court shall remove a fiduciary whenever that removal is in the best interests
of the protected person.
     (2) In addition to any other grounds, the
court may remove a conservator if the conservator fails to use good business
judgment and diligence in the management of the estate under the control of the
conservator. The court may apply a higher standard of care to a conservator who
claims to have greater than ordinary skill or expertise.
     (3) The court may remove a guardian if the
guardian places the protected person in a mental health treatment facility, a
nursing home or other residential facility and:
     (a) Failed to disclose in the petition for
appointment that the guardian intended to make the placement; or
     (b) Failed to comply with ORS 125.320 (3)
before making the placement.
     (4) On termination of the authority of a
fiduciary, an interim fiduciary may be appointed by the court to serve for a
period not to exceed 60 days. An interim fiduciary under this subsection may be
appointed by the court without the appointment of a visitor, additional notices
or any other additional procedure, except as may be determined necessary by the
court.
     (5) Upon termination of the authority of a
fiduciary, the court may appoint a successor fiduciary. A petition for
appointment as successor fiduciary must be filed in the same manner as provided
for an original petition, and is subject to all provisions applicable to an
original petition for the appointment of a fiduciary except:
     (a) No filing fee shall be charged or
collected for the filing of a petition for the appointment of a successor
fiduciary; and
     (b) The court may enter an order waiving
the requirement of appointing a visitor if the termination of the fiduciaryÂ’s
authority results from the resignation or death of the fiduciary. [1995 c.664 §24]
     125.230
Termination of fiduciaryÂ’s authority; discharge of fiduciary. (1) Except as provided in subsection (3) of
this section, a fiduciaryÂ’s authority terminates upon the death, resignation or
removal of the fiduciary or upon the protected personÂ’s death. If the fiduciary
is a guardian appointed solely by reason of the minority of the protected
person, the fiduciaryÂ’s authority terminates upon the protected person
attaining 18 years of age.
     (2) Resignation or removal of a fiduciary does
not discharge the fiduciary until a final report or accounting has been
approved by the court, any surety exonerated and the fiduciary discharged by
order of the court.
     (3) A guardian retains the authority to
direct disposition of the remains of a deceased protected person if the
guardian is unaware of any contact during the 12-month period immediately
preceding the death of the protected person between the protected person and
any person with priority over the fiduciary to control disposition of the remains
under ORS 97.130 or to make an anatomical gift under ORS 97.965. [1995 c.664 §25;
1997 c.472 §11; 2007 c.681 §26]
     125.235
Liability of fiduciary. A
fiduciary is not personally liable to third persons for acts of the protected
person solely by reason of being appointed fiduciary. [1995 c.664 §26]
     125.240
Professional fiduciaries.
(1) If a petition seeks the appointment of a professional fiduciary as
described in subsection (5) of this section, the petition must contain the
following information in addition to that information required under ORS
125.055:
     (a) A description of the events that led
to the involvement of the professional fiduciary in the case.
     (b) The professional fiduciary’s
educational background and professional experience.
     (c) The fees charged by the professional
fiduciary and whether the fees are on an hourly basis or are based on charges
for individual services rendered.
     (d) The names of providers of direct
services to protected persons that are repeatedly used by the professional
fiduciary under contract.
     (e) The disclosures required under ORS
125.221 if the person nominated to act as fiduciary will employ a person in
which the nominated person has a pecuniary or financial interest.
     (f) The number of protected persons for
whom the person performs fiduciary services at the time of the petition.
     (g) Whether the professional fiduciary has
ever had a claim against the bond of the fiduciary and a description of the
circumstances causing the claim.
     (h) Whether the professional fiduciary or
any staff with responsibility for making decisions for clients or for
management of client assets has ever filed for bankruptcy and the date of
filing.
     (i) Whether the professional fiduciary or
any staff with responsibility for making decisions for clients or for
management of client assets has ever been denied a professional license that is
directly related to responsibilities of the professional fiduciary, or has ever
held a professional license that is directly related to responsibilities of the
professional fiduciary that was revoked or canceled. If such a license has been
denied, revoked or canceled, the petition must reflect the date of the denial,
revocation or cancellation and the name of the regulatory body that denied,
revoked or canceled the license.
     (j) A statement that the criminal records
check required under subsection (2) of this section does not disqualify the
person from acting as a fiduciary.
     (k) Whether the professional fiduciary and
any staff responsible for making decisions for clients or for management of
client assets is or has been certified by a national or state association of
professional fiduciaries, the name of any such association and whether the
professional fiduciary or other staff person has ever been disciplined by any
such association and the result of the disciplinary action.
     (L) The name, address and telephone number
of the individual who is to act as primary decision maker for the protected
person and the name of the person with whom the protected person will have
personal contact if that person is not the person who will act as primary
decision maker for the protected person.
     (2)(a) If a petition seeks the appointment
of a professional fiduciary as described in subsection (5) of this section, the
professional fiduciary and all staff with responsibility for making decisions
for clients or for management of client assets must undergo a criminal records
check before the court may appoint the professional fiduciary. The results of
the criminal records check shall be provided by the petitioner to the court.
Results of criminal records checks submitted to the court are confidential,
shall be subject to inspection only by the parties to the proceedings and their
attorneys, and shall not be subject to inspection by members of the public
except pursuant to a court order entered after a showing of good cause. A
professional fiduciary must disclose to the court any criminal conviction of
the professional fiduciary that occurs after the criminal records check was
performed. The criminal records check under this subsection shall consist of a
check for a criminal record in the State of
     (A) The person has resided in another
state within five years before the date that the criminal records check is
performed;
     (B) The person has disclosed the existence
of a criminal conviction; or
     (C) A criminal records check in
     (b) The requirements of this subsection do
not apply to any person who serves as a public guardian or conservator, or any
staff of a public guardian or conservator, who is operating under ORS 125.700
to 125.730 or 406.050 and who is otherwise required to acquire a criminal
records check for other purposes.
     (3)(a) If a petition seeks the appointment
of a public guardian and conservator operating under the provisions of ORS
125.700 to 125.730, or the appointment of a conservator under ORS 406.050 (7),
the petition need not contain the information described in subsection (1)(d) or
(L) of this section.
     (b) If a public guardian and conservator
operating under the provisions of ORS 125.700 to 125.730 is appointed to act as
a fiduciary, or a conservator operating under the authority of ORS 406.050 (7) is
appointed, the public guardian or conservator must file with the court within
three days after receipt of written notice of the appointment a statement
containing the name, address and telephone number of the individual who will
act as primary decision maker for the protected person and the name of the
person with whom the protected person will have personal contact if the person
named as primary decision maker will not have personal contact with the
protected person.
     (4) If the court appoints a professional
fiduciary as described in subsection (5) of this section, the professional
fiduciary must update all information required to be disclosed by subsection
(1) of this section and provide a copy of the updated statement upon the
request of the protected person or upon the request of any person entitled to
notice under ORS 125.060 (3). The professional fiduciary must provide an
updated statement without demand to the court, the protected person and persons
entitled to notice under ORS 125.060 (3) at any time that there is a change in
the information provided under subsection (1)(L) or (3)(b) of this section.
     (5) The provisions of this section apply
to any person nominated as a fiduciary or serving as a fiduciary who is acting
at the same time as a fiduciary for three or more protected persons who are not
related to the fiduciary. [1999 c.774 §4; 2001 c.102 §4; 2001 c.104 §37]
     125.242
Exemptions for financial institutions and trust companies. ORS 125.221 and 125.240 do not apply to a
financial institution, as defined in ORS 706.008, or trust company, as defined
in ORS 706.008. [1999 c.774 §5]
     Note: 125.242 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 125 or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
GUARDIANS
     125.300
In general. (1) A guardian
may be appointed for an adult person only as is necessary to promote and
protect the well-being of the protected person. A guardianship for an adult
person must be designed to encourage the development of maximum self-reliance
and independence of the protected person and may be ordered only to the extent
necessitated by the personÂ’s actual mental and physical limitations.
     (2) An adult protected person for whom a
guardian has been appointed is not presumed to be incompetent.
     (3) A protected person retains all legal
and civil rights provided by law except those that have been expressly limited
by court order or specifically granted to the guardian by the court. Rights
retained by the person include but are not limited to the right to contact and
retain counsel and to have access to personal records. [1995 c.664 §27]
     125.305
Order of appointment. (1)
After determining that conditions for the appointment of a guardian have been
established, the court may appoint a guardian as requested if the court
determines by clear and convincing evidence that:
     (a) The respondent is a minor in need of a
guardian or the respondent is incapacitated;
     (b) The appointment is necessary as a
means of providing continuing care and supervision of the respondent; and
     (c) The nominated person is both qualified
and suitable, and is willing to serve.
     (2) The court shall make a guardianship
order that is no more restrictive upon the liberty of the protected person than
is reasonably necessary to protect the person. In making the order the court
shall consider the information in the petition, the report of the visitor, the
report of any physician or psychologist who has examined the respondent, if
there was an examination and the evidence presented at any hearing.
     (3) The court may require that a guardian
post bond.
     (4) The Department of Human Services may
be appointed guardian of a minor if the minor has no living parents and if no
willing, qualified and suitable relative or other person has petitioned the
court for appointment as a guardian. [1995 c.664 §28]
     125.310
Letters of guardianship. The
court shall issue letters of guardianship to the guardian after the filing of
any acceptance of the appointment and bond that may be required. A copy of the
order appointing the guardian must be attached to the letters of guardianship.
Letters of guardianship must be in substantially the following form:
______________________________________________________________________________
State of
                                  )          LETTERS OF
BY THESE
LETTERS OF GUARDIANSHIP be informed:
     That on ___ (month) ___ (day), 2___,
the _____ Court, ___ County, State of Oregon, appointed _____ (name
of guardian) guardian for _____ (name of protected person) and that the named
guardian has qualified and has the authority and duties of guardian for the
named protected person as provided in the order appointing the guardian, a copy
of which is attached to these letters.
     IN TESTIMONY WHEREOF, I have subscribed my
name and affixed the seal of the court at my office on ___ (month) ___ (day), 2___.
(Seal)
________, Clerk of the Court
By________, Deputy
______________________________________________________________________________
[1995 c.664 §29]
     125.315
General powers and duties of guardian. (1) A guardian has the following powers and duties:
     (a) Except to the extent of any limitation
under the order of appointment, the guardian has custody of the protected
person and may establish the protected personÂ’s place of abode within or
without this state.
     (b) The guardian shall provide for the
care, comfort and maintenance of the protected person and, whenever
appropriate, shall arrange for training and education of the protected person.
Without regard to custodial rights of the protected person, the guardian shall
take reasonable care of the personÂ’s clothing, furniture and other personal
effects unless a conservator has been appointed for the protected person.
     (c) Subject to the provisions of ORS
127.505 to 127.660 and subsection (3) of this section, the guardian may
consent, refuse consent or withhold or withdraw consent to health care, as
defined in ORS 127.505, for the protected person. A guardian is not liable
solely by reason of consent under this paragraph for any injury to the
protected person resulting from the negligence or acts of third persons.
     (d) The guardian may:
     (A) Make advance funeral and burial
arrangements;
     (B) Subject to the provisions of ORS
97.130, control the disposition of the remains of the protected person; and
     (C) Subject to the provisions of ORS
97.965, make an anatomical gift of all or any part of the body of the protected
person.
     (e) The guardian of a minor has the powers
and responsibilities of a parent who has legal custody of a child, except that
the guardian has no obligation to support the minor beyond the support that can
be provided from the estate of the minor, and the guardian is not liable for
the torts of the minor. The guardian may consent to the marriage or adoption of
a protected person who is a minor.
     (f) Subject to the provisions of ORS
125.320 (2), the guardian may receive money and personal property deliverable
to the protected person and apply the money and property for support, care and
education of the protected person. The guardian shall exercise care to conserve
any excess for the protected personÂ’s needs.
     (2) If a conservator has been appointed
for the protected person, the guardian may file a motion with the court seeking
an order of the court on the duties of the conservator relating to payment of
support for the protected person.
     (3) A guardian may consent to the
withholding or withdrawing of artificially administered nutrition and hydration
for a protected person only under the circumstances described in ORS 127.580
(1)(a), (b), (d), (e) or (f) and, if the protected person has a medical
condition specified in ORS 127.580 (1)(b), (d), (e) or (f), the condition has
been medically confirmed. [1995 c.664 §30; 1997 c.472 §12; 2007 c.230 §1; 2007
c.681 §27]
     125.320
Limitations on guardian. (1)
A guardian may not authorize the sterilization of the protected person.
     (2) A guardian may not use funds from the
protected personÂ’s estate for room and board that the guardian or guardianÂ’s
spouse, parent or child have furnished the protected person unless the charge
for the service is approved by order of the court before the payment is made.
     (3)(a) Before a guardian may place an
adult protected person in a mental health treatment facility, a nursing home or
other residential facility, the guardian must file a statement with the court
informing the court that the guardian intends to make the placement.
     (b) Notice of the statement of intent must
be given in the manner provided by ORS 125.065 to the persons specified in ORS
125.060 (3).
     (c) In addition to the requirements of
paragraph (b) of this subsection, notice of the statement of intent must be
given in the manner provided by ORS 125.065 by the guardian to the following
persons:
     (A) Any attorney who represented the
protected person at any time during the protective proceeding.
     (B) If the protected person is a resident
of a nursing home or residential facility, or if the notice states the
intention to place the protected person in a nursing home or residential
facility, the office of the Long Term Care Ombudsman.
     (C) If the protected person is a resident
of a mental health treatment facility or a residential facility for individuals
with developmental disabilities, or if the notice states the intention to place
the protected person in such a facility, the system described in ORS 192.517
(1).
     (d) In addition to the requirements of ORS
125.070 (1), the notice given to the protected person must clearly indicate the
manner in which the protected person may object to the proposed placement.
     (e) The guardian may thereafter place the
adult protected person in a mental health treatment facility, a nursing home or
other residential facility without further court order. If an objection is made
in the manner provided by ORS 125.075, the court shall schedule a hearing on
the objection as soon as practicable.
     (f) The requirement that notice be served
on an attorney for a protected person under paragraph (c)(A) of this subsection
does not impose any responsibility on the attorney receiving the notice to
represent the protected person in the protective proceeding. [1995 c.664 §31;
2001 c.473 §1; 2005 c.498 §3]
     125.325
GuardianÂ’s report. Within 30
days after each anniversary of appointment, a guardian for an adult protected
person shall file with the court a written report. The report must include a
declaration under penalty of perjury in the form required by ORCP 1 E. Copies
of the guardianÂ’s report must be given to those persons specified in ORS
125.060 (3). The report shall be in substantially the following form:
______________________________________________________________________________
IN THE
STATE OF
DEPARTMENT OF PROBATE
In the Matter
of the   )          No. ______
Guardianship
of         )
____________,          )
(Name of
protected    )
person)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â )
A Protected               )
Person.                                  )
GUARDIANÂ’S REPORT
     I am the guardian for the person named
above, and I make the following report to the court as required by law:
     1. My name is____________.
     2. My address and telephone number are:
     ______________________
     ______________________
     Phone ____________
     3. The name, if applicable, and address of
the place where the person now resides are:
     ______________________
     ______________________
     4. The person is currently residing at the
following type of facility or residence:
     ______________________
     5. The person is currently engaged in the
following programs and activities and receiving the following services (brief
description):
     ______________________
     6. I was paid for providing the following
items of lodging, food or other services to the person:
     ______________________
     ______________________
     7. The name of the person primarily
responsible for the care of the person at the personÂ’s place of residence is:
     ______________________
     8. The name and address of any hospital or
other institution where the person is now admitted on a temporary or permanent
basis are:
     ______________________
     ______________________
     9. The person’s physical condition is as
follows (brief description):
     ______________________
     ______________________
     10. The person’s mental condition is as
follows (brief description):
     ______________________
     ______________________
     11. I made the following contacts with the
person during the past year (brief description):
     ______________________
     12. I made the following major decisions
on behalf of the person during the past year (brief description):
     ______________________
     13. I believe the guardianship should or
should not continue because:
     ______________________
     14. At the time of my last report, I held
the following amount of money on behalf of the person: $______. Since my last
report, I received the following amount of money on behalf of the person: $______.
I spent the following amount of money on behalf of the person: $______. I now
hold the following amount of money on behalf of the person: $______.
     15. A true copy of this report will be
given to the person, any conservator for the person and any other person who
has requested notice.
     16. Since my last report:
     (a) I have been convicted of the following
crimes (not including traffic violations):
     ______________________
     (b) I have filed for or received
protection from creditors under the Federal Bankruptcy Code (yes or no):_____.
     (c) I have had a professional or
occupational license revoked or suspended (yes or no):_____.
     (d) I have had my driver license revoked
or suspended (yes or no):_____.
     17. Since my last report, I have delegated
the following powers over the protected person for the following periods of
time (provide name of person powers delegated to):
     ______________________
     I hereby declare that the above statement
is true to the best of my knowledge and belief, and that I understand it is
made for use as evidence in court and is subject to penalty for perjury.
     Dated this ___ day of________, 2___.
______________________
Guardian
______________________________________________________________________________
[1995 c.664 §32;
1997 c.717 §6; 2007 c.284 §4]
     Note: Section 5, chapter 284, Oregon Laws 2007,
provides:
     Sec.
5. The amendments to ORS
111.205, 116.083, 116.253 and 125.325 by sections 1 to 4 of this 2007 Act apply
only to petitions, reports and accounts filed in proceedings before a probate
court on or after the effective date of this 2007 Act [January 1, 2008]. [2007
c.284 §5]
     125.330
Limitations on guardian appointed for person committed to custody of Department
of Corrections. (1) Except
as provided in subsection (2) of this section, a guardian appointed for a
person committed to the legal and physical custody of the Department of
Corrections may not exercise those powers specified in ORS 125.315 (1)(a) or
(b) while the person remains confined.
     (2) A guardian appointed for a person
committed to the legal and physical custody of the Department of Corrections
may take reasonable care of the personÂ’s clothing, furniture and other personal
effects that are not located at the personÂ’s place of confinement.
     (3) A guardian appointed for an
incarcerated person may exercise those powers specified in ORS 125.315 (1)(c)
only to the extent that the exercise of those powers is consistent with the
protected personÂ’s status as a confined person and with the powers and duties
of the superintendent or other officials of the facility. In no event may a
guardian appointed for a person committed to the legal and physical custody of
the Department of Corrections exercise more authority over health care
decisions than the protected person could exercise given the personÂ’s status as
a confined person. [1999 c.122 §2]
CONSERVATORS
(Appointment)
     125.400
Order of appointment. Upon
the filing of a petition seeking the appointment of a conservator, the court
may appoint a conservator and make other appropriate protective orders if the
court finds by clear and convincing evidence that the respondent is a minor or
financially incapable, and that the respondent has money or property that
requires management or protection. [1995 c.664 §33]
     125.405
Letters of conservatorship.
The court shall issue letters of conservatorship to the conservator after the
filing of any acceptance of the appointment and bond that may be required.
Letters of conservatorship must be in substantially the following form:
______________________________________________________________________________
State of
                                  )
LETTERS OF
BY THESE LETTERS
OF CONSERVATORSHIP be informed:
     That on ___ (month) ___ (day), 2___, the _____
Court, ___ County, State of Oregon, appointed _____ (name of conservator)
conservator of the estate of _____ (name of protected person) and that the
named conservator has qualified and has the authority and duties of conservator
of the estate of the named protected person as provided by law.
LIMITATIONS: _______________
     IN TESTIMONY WHEREOF, I have subscribed my
name and affixed the seal of the court at my office on ___ (month) ___ (day), 2___.
(Seal)
________, Clerk of the Court
By________, Deputy
______________________________________________________________________________
[1995 c.664 §34]
(Bond)
     125.410
ConservatorÂ’s bond. (1)
Except as provided in subsection (2) of this section, the court shall require a
conservator to furnish a bond conditioned upon faithful discharge of all duties
of the conservator according to law, with sureties as specified by the court.
Unless otherwise directed, the bond must be in the amount of the aggregate
capital value of the property of the estate in the control of the conservator
plus one yearÂ’s estimated income minus the value of securities and money
deposited under arrangements requiring an order of the court for their removal
and the value of any real property that the conservator, by express limitation
of power, lacks power to sell or convey without court authorization.
     (2)(a) The court may waive a bond for good
cause shown.
     (b) Subsection (1) of this section does
not affect the provisions of ORS 709.240, relating to a trust company acting as
fiduciary, ORS 125.715, relating to a public guardian acting as fiduciary, or
ORS 406.050 (7), relating to the Department of VeteransÂ’ Affairs acting as
fiduciary.
     (3) Sureties for a bond required under
this section are jointly and severally liable with the conservator and with
each other.
     (4) Letters of conservatorship may not be
issued until the bond required by this section is approved by the court.
     (5) The bond of the conservator continues
in effect until the sureties on the bond are released by order of the court.
     (6) The court may at any time increase or
reduce the amount of the bond required of a conservator for the protection of
the protected person and the estate of the protected person.
     (7) If a surety on a bond required by this
section gives notice of intent to cancel the bond, the conservator shall
execute and file in the protective proceeding a new bond before the
cancellation date specified by the surety. The new bond shall be in the amount
and subject to those conditions that may be required by the court. If the
conservator fails to file a new bond, the authority of the conservator ends on
the date specified by the surety for cancellation of the bond. The letters of
conservatorship issued to the conservator are void from that date, and the
conservator must make and file the final accounting of the conservator. [1995
c.664 §36; 2001 c.102 §5; 2005 c.625 §66]
     125.415
Termination of bond by surety.
(1) A surety may cancel the obligation of the surety upon notice in writing to
the conservator and the court. The notice shall specify an effective date for
the cancellation that is not less than 30 days after the date of the notice.
     (2) A surety’s obligation under a bond
shall continue until court approval of an accounting covering the period during
which the bond was effective and an order is entered releasing the sureties. [1995
c.664 §37]
(ConservatorÂ’s
Powers and Duties)
     125.420
Power of conservator over property of protected person. A conservator shall take possession of all
the property of substantial value of the protected person, and of rents,
income, issues and profits from those properties whether accruing before or
after the appointment of the conservator. The conservator shall also take
possession of all proceeds from the sale, mortgage, lease or other disposition
of property of the protected person. The conservator may permit the protected
person to retain possession and control of property and funds for living
requirements as appropriate to the needs and capacities of the protected
person. The title to all property of the protected person is in the protected
person and not in the conservator. [1995 c.664 §38]
     125.425
Powers of conservator to pay expenses of protected person and dependents. (1) A conservator may expend or distribute
income or principal of the estate without prior court authorization or
confirmation for the support, education, care or benefit of the protected
person and the dependents of the protected person after the conservator
considers recommendations relating to the appropriate standard of support, education,
care and benefit for the protected person made by any parent or guardian of the
protected person. The conservator is not personally responsible for sums paid
to persons or organizations furnishing support, education, care or benefit to
the protected person pursuant to the recommendations of a parent or guardian of
the protected person unless:
     (a) The conservator knows that the parent
or guardian is deriving personal financial benefit from those payments; or
     (b) The recommendations made by the parent
or guardian clearly are not in the best interests of the protected person.
     (2) A conservator may expend or distribute
income or principal of the estate without prior court authorization or
confirmation for the support, education, care or benefit of the protected
person and the dependents of the protected person if those amounts are
reasonably necessary for the support, education, care or benefit of the
protected person with due regard to:
     (a) The size of the estate, the probable
duration of the conservatorship and the likelihood that the protected person,
at some future time, may be fully able to manage the affairs of the protected
person and the estate that has been conserved for the protected person;
     (b) The accustomed standard of living of
the protected person and members of the household of the protected person; and
     (c) Other funds or sources used for the
support of the protected person.
     (3) A conservator may expend or distribute
income or principal of the estate without prior court authorization or
confirmation for the support, education, care or benefit of the dependents of
the protected person, other persons who are members of the protected personÂ’s
household who are unable to support themselves and who are in need of support,
and any other persons who were receiving support from the protected person
before the appointment of the conservator.
     (4) The conservator may reimburse any
person, including the protected person, who has expended funds for the purposes
specified in this section. The conservator may pay any person in advance for
those purposes if the conservator reasonably believes that the services will be
performed and where advance payments are customary or reasonably necessary
under the circumstances. [1995 c.664 §39]
     125.430
     (2) For purposes of this section, “principal
residence” means a residence that is owned by the protected person and in which
the protected person resides or last resided, whether or not the protected
person resides in the residence at the time approval to sell is sought from the
court. [1995 c.664 §40]
     125.435
Power of conservator to make gifts. If the estate has adequate funds to provide for the purposes specified
in ORS 125.425, a conservator may make gifts on behalf of the protected person
for such purposes as the protected person might have been expected to make. The
conservator may make gifts without prior court approval of up to $250 to a
person in a calendar year, not to exceed an aggregate amount of $1,000 for all
gifts in a calendar year. The conservator must have prior court approval for
any other gifts. [1995 c.664 §41]
     125.440
Acts conservator may perform only with court approval. A conservator may perform the following acts
only with prior court approval:
     (1) Convey or release contingent or
expectant interests of the protected person in property, including marital
property rights and any right of survivorship incident to joint tenancy or
tenancy by the entirety.
     (2) Create revocable or irrevocable trusts
of property of the estate. A trust created by the conservator may extend beyond
the period of disability of the protected person or beyond the life of the
protected person. A trust created by the conservator must be consistent with
the will of the protected person or any other written or oral expression of
testamentary intent made by the protected person before the person became
incapacitated. The court may not approve a trust that has the effect of
terminating the conservatorship unless:
     (a) The trust is created for the purpose of
qualifying the protected person for needs-based government benefits or
maintaining the eligibility of the protected person for needs-based government
benefits;
     (b) The value of the conservatorship
estate, including the amount to be transferred to the trust, does not exceed
$50,000;
     (c) The purpose of establishing the
conservatorship was to create the trust; or
     (d) The conservator shows other good cause
to the court.
     (3) Exercise rights of the protected
person to elect options and change beneficiaries under insurance and annuity
policies and to surrender the policies for their cash value.
     (4) Disclaim any interest the protected
person may have by testate or intestate succession or by inter vivos transfer.
     (5) Authorize, direct or ratify any
annuity contract or contract for life care. [1995 c.664 §42; 2007 c.62 §1]
     125.445
Acts authorized to be performed without prior court approval. A conservator may perform the following acts
without prior court authorization or confirmation if the conservator is acting
reasonably to accomplish the purposes for which the conservator was appointed:
     (1) Collect, hold and retain assets of the
estate including land wherever situated, until, in the judgment of the
conservator, disposition of the assets should be made. Assets of the estate may
be retained even though those assets include property in which the conservator
is personally interested.
     (2) Receive additions to the estate.
     (3) Continue or participate in the
operation of any business or other enterprise.
     (4) Acquire an undivided interest in an
estate asset in which the conservator, in any fiduciary capacity, holds an
undivided interest.
     (5) Invest and reinvest estate assets and
funds in the same manner as a trustee may invest and reinvest.
     (6) Deposit estate funds in a bank
including a bank operated by the conservator.
     (7) Except as limited in ORS 125.430,
acquire or dispose of an estate asset including real property wherever situated
for cash or on credit, at public or private sale.
     (8) Manage, develop, improve, exchange,
partition, change the character of or abandon an estate asset in connection
with the exercise of any power vested in the conservator.
     (9) Make ordinary or extraordinary repairs
or alterations in buildings or other structures, demolish any improvements, or
raze existing or erect new party walls or buildings.
     (10) Subdivide, develop or dedicate land
to public use, make or obtain the vacation of plats and adjust boundaries,
adjust differences in valuation on exchange or partition by giving or receiving
considerations, and dedicate easements to public use without consideration.
     (11) Enter for any purpose into a lease as
lessor or lessee with or without option to purchase or renew for a term within
or extending beyond the term of the conservatorship.
     (12) Enter into a lease or arrangement for
exploration and removal of minerals or other natural resources or enter into a
pooling or unitization agreement.
     (13) Grant an option involving disposition
of an estate asset or take an option for acquisition of any asset.
     (14) Vote a security, in person or by
general or limited proxy.
     (15) Pay calls, assessments and any other
sums chargeable or accruing against or on account of securities.
     (16) Sell or exercise stock subscription
or conversion rights, or consent, directly or through a committee or other
agent, to the reorganization, consolidation, merger, dissolution or liquidation
of a corporation or other business enterprise.
     (17) Hold a security in the name of a
nominee or in other form without disclosure of the conservatorship so that
title to the security may pass by delivery. The conservator is liable for any
act of the nominee in connection with the stock so held.
     (18) Insure the assets of the estate
against damage or loss, and the conservator against liability with respect to
third persons.
     (19) Borrow money to be repaid from estate
assets or otherwise and mortgage or pledge property of the protected person as
security therefor.
     (20) Advance money for the protection of
the estate or the protected person, and for all expenses, losses and liability
sustained in the administration of the estate or because of the holding or
ownership of any estate assets. The conservator has a lien on the estate as
against the protected person for advances so made.
     (21) Pay or contest any claim, settle a
claim by or against the estate or the protected person by compromise,
arbitration or otherwise, and release, in whole or in part, any claim belonging
to the estate to the extent that the claim is uncollectible.
     (22) Pay taxes, assessments, compensation
of the conservator and other expenses incurred in the collection, care,
administration and protection of the estate.
     (23) Allocate items of income or expense
to either income or principal, including creation of reserves out of income for
depreciation, obsolescence or amortization, or for depletion in mineral or
timber properties.
     (24) Pay any sum distributable to a
protected person or a dependent of a protected person by paying the sum to the
protected person or the dependent, or by paying the sum either to a guardian,
custodian under ORS 126.700, or conservator of the protected person or, if
none, to a relative or other person with custody of the protected person.
     (25) Employ persons, including attorneys,
auditors, investment advisers or agents, even though they are associated with
the conservator, to advise or assist the conservator in the performance of
administrative duties, acting upon their recommendation without independent
investigation, and instead of acting personally, employing one or more agents
to perform any act of administration, whether or not discretionary, except that
payment to the conservatorÂ’s attorney of record is subject to the provisions of
ORS 125.095.
     (26) Prosecute or defend actions, claims
or proceedings in any jurisdiction for the protection of estate assets and of
the conservator in the performance of duties.
     (27) Prosecute claims of the protected
person including those for the personal injury of the protected person.
     (28) Execute and deliver all instruments
that will accomplish or facilitate the exercise of the powers vested in the
conservator. [1995 c.664 §43]
     125.450
Voidable transactions. Any
sale or encumbrance to a conservator, the spouse, agent or attorney of the
conservator, or any corporation or trust in which the conservator has a
substantial beneficial interest, or any transaction that is otherwise affected
by a substantial conflict of interest is voidable unless the transaction is
approved by the court after the filing of a motion with the court seeking
approval of the transaction. [1995 c.664 §44]
(Desires of
Protected Person)
     125.455
Power of competent protected person over estate. (1) A protected person, if mentally
competent, may make wills, change beneficiaries of life insurance and annuity
policies and exercise any power of appointment or any elective right to share
in the estate of a deceased spouse.
     (2) Except as provided in this section and
ORS 125.420, a protected person for whom a conservator has been appointed cannot
convey or encumber the estate of the protected person or make any contract or
election affecting the estate of the protected person. [1995 c.664 §45]
     125.460
Consideration of estate plan of protected person. In investing the estate, selecting assets of
the estate for distribution and utilizing powers of revocation or withdrawal
available for the support of the protected person and exercisable by the
conservator or the court, the conservator and the court shall take into account
any known estate plan of the protected person, including the will of the
protected person, any revocable trust of which the protected person is settlor,
and any contract, transfer or joint ownership arrangement with provisions for
payment or transfer of benefits or interests at the death of the protected
person to another or others that the protected person may have originated. The
conservator may examine the will of the protected person. [1995 c.664 §46]
(Inventory of
Property)
     125.465
Discovery of property; examination by conservator. (1) The court may order any person to appear
and give testimony by deposition if it appears probable that the person:
     (a) Has concealed, secreted or disposed of
any property of the protected person;
     (b) Has been entrusted with property of the
protected person and fails to account for that property to the conservator;
     (c) Has concealed, secreted or disposed of
any writing, instrument or document relating to the affairs of the protected
person;
     (d) Has knowledge or information that is
necessary to the administration of the affairs of the protected person; or
     (e) As an officer or agent of a
corporation, has refused to allow examination of the books and records of the
corporation that the protected person has a right to examine.
     (2) If a person is cited to appear under
this section and fails to appear or to answer questions asked as authorized by
the order of the court, the person may be held in contempt of court. [1995
c.664 §47]
     125.470
Filing of inventory required; supplemental inventory. (1) Within 90 days after the date of
appointment, unless a longer time is granted by the court, a conservator must
file in the protective proceeding an inventory of all the property of the
estate of the protected person that has come into the possession or knowledge
of the conservator. The inventory must show the estimates by the conservator of
the respective true cash values as of the date of the protective order. If the
protected person has attained 14 years of age, a copy of the inventory must be
served on the protected person personally or by mail.
     (2) Whenever any property of the estate of
the protected person not included in the inventory or any subsequent accounting
and not derived from any asset included in a prior inventory or any subsequent
accounting comes into the possession or knowledge of the conservator, the
conservator must file a supplemental inventory in the protective proceeding.
The supplemental inventory must be filed within 30 days after the date of
receiving possession or knowledge of the property.
     (3) If the estate of the protected person
includes real property, the conservator must record in the deed records of the
clerk of the county in which the real property is situated a certified copy of
the inventory required by this section or an abstract in substantially the
following form:
______________________________________________________________________________
The protected
personÂ’s name is ______
___________________________
Conservatorship
Case # ____________
County where
proceedings are pending ______________________
Conservator is ____________
ConservatorÂ’s
address is ____________
AttorneyÂ’s name is
____________
AttorneyÂ’s address
is ____________
The following real
property is subject to proceedings: ________
Signature ______________________
Dated ______________________
STATE OF
                                  )          ss.
     The foregoing instrument was acknowledged
before me this ___ day of______, 2___, by____________.
______________________
Notary Public for
My commission expires: ____________
______________________________________________________________________________
[1995 c.664 §48]
(Accountings)
     125.475
ConservatorÂ’s accounting to court; contents. (1) Unless the court by order provides otherwise, a conservator shall
account to the court for the administration of the protected estate within 60
days after each anniversary of appointment. In addition, a conservator shall
account to the court for the administration of the protected estate:
     (a) Within 60 days after the death of the
protected person, a minor protected person attains majority or an adult
protected person becomes able to manage the protected personÂ’s financial
resources; and
     (b) Within 30 days after the removal of
the conservator, the resignation of the conservator or the termination of the
conservatorÂ’s authority under ORS 125.410 (7).
     (2) Each accounting must include the
following information:
     (a) The period of time covered by the
accounting.
     (b) The total value of the property with
which the conservator is chargeable according to the inventory, or, if there
was a prior accounting, the amount of the balance of the prior accounting.
     (c) All money and property received during
the period covered by the accounting.
     (d) All disbursements made during the
period covered by the accounting.
     (e) The amount of bond posted by the
conservator during the period covered by the accounting.
     (f) Such other information as the
conservator considers necessary, or that the court might require, for the
purpose of disclosing the condition of the estate.
     (3) Vouchers for disbursements must
accompany the accounting unless otherwise provided by order or rule of the
court or unless the conservator is a trust company that has complied with ORS
709.030. If vouchers are not required, the conservator shall:
     (a) Maintain the vouchers for a period of
not less than one year following the date on which the order approving the
final accounting is entered;
     (b) Permit interested persons to inspect
the vouchers and receive copies of the vouchers at their own expense at the
place of business of the conservator during the conservatorÂ’s normal business
hours at any time before the end of one year following the date on which the
order approving the final accounting is entered; and
     (c) Include in each annual accounting and
the final accounting a statement that the vouchers are not filed with the
accounting but are maintained by the conservator and may be inspected and
copied as provided in this subsection.
     (4) The court may waive a final accounting
if:
     (a) The conservator was appointed because
the protected person was a minor, and the protected person has attained the age
of majority, or the conservator was appointed because the protected person was
financially incapable, and the protected person is no longer financially
incapable;
     (b) The protected person gives a receipt
to the conservator for the property delivered to the protected person; and
     (c) The conservator files with the court a
copy of the receipt issued by the protected person to the conservator.
     (5) Copies of accountings must be served
on all persons listed in ORS 125.060 (3). The court may waive service on the
protected person if service of the copy would not assist the protected person
in understanding the proceedings.
     (6) The court may require a conservator to
submit to a physical check of the estate in the control of the conservator at
any time and in any manner the court may specify.
     (7) The Chief Justice of the Supreme Court
may by rule specify the form and contents of accounts that must be filed by a
conservator. [1995 c.664 §49; 1997 c.631 §411; 1999 c.592 §4; 2005 c.123 §2]
     125.480
Approval of accounting.
Subject to appeal or vacation within the time allowed by law, an order, made
upon notice and hearing, allowing an intermediate accounting of a conservator,
is final as to the liabilities of the conservator concerning the matters
considered in connection with the intermediate accounting. An order, made upon
notice and hearing, allowing a final accounting is final as to all previously
unsettled liabilities of the conservator to the protected person or successors
relating to the conservatorship. [1995 c.664 §50]
(Liabilities)
     125.485
Liability of conservator.
(1) A conservator is not personally liable on a contract entered into in the
fiduciary capacity of the conservator in the course of administering the estate
unless:
     (a) The contract specifically makes the
conservator liable in a personal capacity; or
     (b) The conservator fails to reveal the
representative capacity of the conservator and identity of the estate in the
contract.
     (2) The conservator is personally liable
for obligations arising from ownership, obligations arising out of control of
property of the estate and torts committed in the course of administration of the
estate only if the conservator is personally at fault.
     (3) Claims based on contracts entered into
by a conservator in the fiduciary capacity of the conservator, on obligations
arising from ownership or control of the estate or on torts committed in the
course of administration of the estate may be asserted against the estate by
proceeding against the conservator in the fiduciary capacity of the
conservator, whether or not the conservator is personally liable.
     (4) Any question of liability between the estate
and the conservator personally may be determined in a proceeding for accounting
or for indemnification, or in any other appropriate proceeding or action. [1995
c.664 §51]
     125.490
Status of persons dealing with conservator. (1) A person who in good faith either assists a conservator or deals
with the conservator for value in any transaction other than those requiring a
court order under the provisions of this chapter is protected as if the
conservator properly exercised the power. The fact that a person knowingly
deals with a conservator does not require the person to inquire into existence
of a power or the propriety of its exercise, except that restrictions on powers
of conservators that are indorsed on letters are effective as to third persons.
A person is not required to see to the proper application of estate assets paid
or delivered to a conservator.
     (2) The protection provided under
subsection (1) of this section:
     (a) Is not affected by any procedural
irregularity or jurisdictional defect in the proceedings that resulted in the
issuance of letters; and
     (b) Is in addition to the protection
provided by comparable provisions of the laws relating to commercial
transactions and laws simplifying transfers of securities by fiduciaries.
     (3) A person who holds property in which
the protected person has an interest, or who is indebted either to the
protected person or to the protected person and others, may enter into
transactions with the conservator with respect to the property or debt to the
same extent that the person could deal with the protected person if the
protected person were not under protection. [1995 c.664 §52]
(Claims and
Expenses)
     125.495
Payment of claims against estate or protected person. (1) A conservator shall pay from the estate
claims against the estate and against the protected person arising before or
after the conservatorship upon their presentation, allowance and maturity.
Claims that become absolute at an uncertain event may not be allowed. The
conservator may allow claims against the estate of a protected person in part
and disallow them in part.
     (2) A claim may be presented by either of
the following methods:
     (a) The claimant may deliver or mail to
the conservator or the attorney for the conservator a written statement of the
claim stating the basis of the claim, the name and address of the claimant and
of the claimantÂ’s attorney if the claimant is represented by an attorney in
respect to the claim, and the amount claimed.
     (b) The claimant may file the claim with
the clerk of the court in which the proceeding is pending, captioned in a
manner that will identify the protected person and the clerkÂ’s number of the
proceeding, and deliver or mail a copy of the statement to the conservator or
the attorney of the conservator.
     (3) If the conservator disallows the claim
in whole or in part, or if the conservator finds that the claim is valid but
not due, the conservator shall notify the claimant or the attorney of the
claimant in writing of the disallowance or finding of the conservator.
     (4) The presentation of a claim and any
defect in form or substance may be waived by the conservator or by the court if
the claim, properly stated, is a valid and absolute obligation of the estate.
     (5) The conservator may reconsider any
claim previously rejected or allowed, or may compromise any claim against the
estate of a protected person, including contingent, unliquidated and unmatured
claims. [1995 c.664 §53]
     125.500
Enforcement of claim against estate or protected person. (1) An action upon a claim may not be
brought until the claim is disallowed or until 60 days have elapsed from the
date of its presentment without allowance of payment.
     (2) A creditor of the protected person or
the estate of the protected person whose claim is secured may not exercise
remedies against the security until at least 30 days after the claim is
presented and after notice to the conservator or the attorney of the
conservator that the creditor intends to exercise remedies against the
security. The court may shorten the period for cause.
     (3) The conservator may convey the
security to the secured creditor in full or partial satisfaction of the claim
if the secured creditor agrees to accept the conveyance as full satisfaction or
partial satisfaction of the debt. [1995 c.664 §54]
     125.505
Notice of claim to conservator.
If a proceeding is pending against a protected person at the time of
appointment of a conservator or is commenced against the protected person after
appointment of a conservator, the plaintiff must give notice of the proceeding
to the conservator or the attorney of the conservator if any judgment or order
arising out of the proceeding will constitute a claim against the estate. [1995
c.664 §55]
     125.510
Procedure where claim disallowed. (1) If the conservator disallows a claim in whole or in part, or if
the conservator does not allow or disallow a claim within 60 days after it is
presented, the claimant may:
     (a) File in the conservatorship proceeding
a request for a summary determination of the claim by the court, with proof of
service of a copy upon the conservator or the attorney of the conservator; or
     (b) Commence a separate action against the
conservator on the claim in a court of competent jurisdiction. The action shall
proceed and be tried as any other action.
     (2) If the claimant requests a summary
hearing, the conservator may, within 30 days after service of the request,
notify the claimant in writing that if the claimant desires to prove the claim
the claimant must commence a separate action against the conservator within 60
days after service of the notice. If the claimant fails to commence an action
against the conservator within that time, the claim is barred.
     (3) An order allowing or disallowing in
whole or in part a claim that has been considered upon a summary hearing may
not be appealed. [1995 c.664 §56]
     125.515
Effect of presentation of claim on statute of limitations. (1) The following periods of time shall not
be part of the time limited for the commencement of an action under any statute
of limitation:
     (a) The period of time beginning at the
presentation of a claim and ending 30 days after the claim is disallowed.
     (b) If the claim is not allowed or
disallowed within 60 days after it is presented, the period of time beginning
with the presentation of the claim and ending 90 days after the claim is
presented.
     (2) For the purpose of any statute of
limitation, an action is considered commenced upon the filing of a request for
a summary determination of a claim that has been disallowed in whole or in
part. [1995 c.664 §57]
     125.520
Order of payment of expenses and claims. If it is likely that the estate of the protected person will be
exhausted before all claims against the estate are paid, the conservator shall
give preference in the payment of claims in the following order of priority:
     (1) Funds needed for the current care,
maintenance and support of the protected person and the dependents of the
protected person and claims for the expenses of administration.
     (2) Expenses and claims for the care,
maintenance and support of the protected person and the dependents of the
protected person that are not paid under subsection (1) of this section.
     (3) Debts and taxes with preference under
federal law.
     (4) Taxes with preference under the laws
of this state that are due and payable while possession of the estate of the
protected person is retained by the conservator.
     (5) All other claims against the
conservatorship estate. [1995 c.664 §58; 1997 c.717 §7]
(Termination of
Proceedings)
     125.525
Termination of conservatorship.
An order terminating a conservatorship shall direct the conservator to deliver
the assets in the possession of the conservator to the protected person:
     (1) Immediately, to the extent that the
assets are not required for payment of expenses of administration and debts
incurred by the conservator for the account of the estate of the protected
person; and
     (2) Upon entry of an order approving the
final accounting or surcharging the conservator, to the extent of any balance
remaining. [1995 c.664 §59]
     125.530
Powers and duties of conservator on death of protected person. If a protected person dies and the
conservator has possession of a will of the protected person, the conservator
shall either deliver the will to the personal representative named in the will
or deliver the will to the court for safekeeping. If the conservator delivers
the will to the court for safekeeping, the conservator must inform any personal
representative named in the will that the conservator has made that delivery.
If it is not possible to inform the named personal representative, the
conservator shall inform the beneficiaries named in the will of the delivery.
The conservator shall retain and administer the estate for delivery to the
personal representative of the decedent or other persons entitled to the
estate. [1995 c.664 §60; 1997 c.717 §8]
     125.535
Disposition of small estate.
If at any time the estate of a protected person consists of personal property
having a value not exceeding by more than $10,000 the aggregate amount of
unpaid expenses of administration of the protected estate and claims against
the estate, the conservator, with prior accounting and approval of the court by
order, may pay the expenses and claims from the estate and deliver all the
remaining personal property to the person designated by the court in the order,
to be held, invested or used as ordered by the court. The recipient of the
property shall give a receipt to the conservator. The receipt is a release of
and acquittance to the conservator as to the property delivered. The
conservator shall file in the protective proceeding proper receipts or other
evidence satisfactory to the court showing the delivery. Upon the court
receiving the evidence, the court shall enter an order terminating the
protective proceeding. [1995 c.664 §61]
(Payment to
Foreign Conservator)
     125.540
Payment of debt and delivery of property to foreign conservator. (1) A person indebted to a protected person,
or having possession of property or of an instrument evidencing a debt, stock
or chose in action belonging to a protected person, may make payment or
delivery to a conservator, guardian or other fiduciary appointed by a court of
the state where the protected person resides, upon being presented with proof
of appointment and an affidavit made by the fiduciary stating that:
     (a) A protective proceeding relating to
the protected person is not pending in this state; and
     (b) The fiduciary is entitled to payment
or to receive delivery.
     (2) If the person to whom the affidavit is
presented is not aware of any protective proceeding pending in this state,
payment or delivery in response to the demand and affidavit discharges the
debtor or possessor. [1995 c.664 §62]
TEMPORARY
FIDUCIARIES
     125.600
In general. (1) A temporary
fiduciary who will exercise the powers of a guardian may be appointed by the
court if the court makes a specific finding by clear and convincing evidence
that the respondent is incapacitated or a minor, that there is an immediate and
serious danger to the life or health of the respondent, and that the welfare of
the respondent requires immediate action.
     (2) A temporary fiduciary who will
exercise the powers of a conservator may be appointed by the court if the court
makes a specific finding by clear and convincing evidence that the respondent
is financially incapable or a minor, that there is an immediate and serious
danger to the estate of the respondent, and that the welfare of the respondent
requires immediate action.
     (3) A temporary fiduciary may be appointed
only for a specific purpose and only for a specific period of time. The period
of time may not exceed 30 days. The court may extend the period of the
temporary fiduciaryÂ’s authority for an additional period not to exceed 30 days
upon motion and good cause shown. The court may terminate the authority of a
temporary fiduciary at any time.
     (4) Except as otherwise provided in this
section and ORS 125.605 and 125.610, a temporary fiduciary is subject to all
provisions of this chapter. [1995 c.664 §63]
     125.605
Procedure for appointment of temporary fiduciary. (1) In addition to the requirements of ORS
125.055, a petition for the appointment of a temporary fiduciary must contain
allegations of the conditions required under ORS 125.600.
     (2) Notice of a petition for the
appointment of a temporary fiduciary must be given to the persons specified in
ORS 125.060 (2) in the manner provided by ORS 125.065 at least two days before
the appointment of a temporary fiduciary. The court may waive the requirement
that notice be given before appointment if the court finds that the immediate
and serious danger requires an immediate appointment. In no event may the
notice required by ORS 125.060 be given more than two days after the
appointment is made.
     (3) Notice of a motion for the extension
of a temporary fiduciaryÂ’s authority beyond 30 days under ORS 125.600 (3) must
be given to the persons specified in ORS 125.060 (2) in the manner provided by
ORS 125.065 at least two days before the entry of an order granting the
extension.
     (4) The court shall appoint a visitor if
the petition seeks appointment of a temporary guardian. A visitor may be
appointed by the court if a petition seeks appointment of a temporary
conservator. Within three days after the appointment of the temporary
fiduciary, the visitor shall conduct an interview of the respondent. The
visitor shall report to the court within five days after the appointment of a
temporary fiduciary is made. The report of the visitor shall be limited to the
conditions alleged to support the appointment of a temporary fiduciary.
     (5) If objections are made to the
appointment of a temporary fiduciary or to the extension of a temporary
fiduciaryÂ’s authority under ORS 125.600 (3), the court shall hear the objections
within two judicial days after the date on which the objections are filed.
Notwithstanding ORS 21.310, no fee shall be charged to any person filing an
objection to the appointment of a temporary fiduciary or to the extension of a
temporary fiduciary’s authority under ORS 125.600 (3). [1995 c.664 §64; 1997
c.717 §9]
     125.610
Report of temporary fiduciary.
(1) A temporary fiduciary shall file a report with the court setting out all
activities of the temporary fiduciary under the authority of the appointment.
Except as provided in subsection (2) of this section, the report must be filed:
     (a) When the temporary fiduciary completes
the duties of the fiduciary;
     (b) When the temporary appointment
expires; or
     (c) When the court orders the termination
of the temporary fiduciaryÂ’s authority.
     (2) If the person appointed as temporary
fiduciary is appointed to act as a permanent fiduciary for the protected
person, the report of the activities of the temporary fiduciary may be included
in the first annual report of the guardian or in the first accounting of the
conservator. [1995 c.664 §65]
OTHER PROTECTIVE
ORDERS
     125.650
Other protective orders. (1)
The court may enter protective orders without the appointment of a fiduciary or
in addition to appointment of a fiduciary. A petition for a protective order
that does not seek the appointment of a fiduciary is subject to all
requirements prescribed for petitions for appointment of a fiduciary. A court
may enter a protective order other than appointment of a fiduciary only upon a
determination that grounds exist for the appointment of a fiduciary.
     (2) In issuing protective orders under
this section, the court may exercise any power that could be exercised by a
guardian or conservator in a protective proceeding, or any power that could be
exercised by the court in a protective proceeding in which a fiduciary is
appointed.
     (3) Before entering a protective order
under this section, the court shall consider the interests of creditors and
dependents of the protected person and whether the protected person needs the
continuing protection of a fiduciary.
     (4) The court may appoint a fiduciary
whose authority is limited to a specified time and whose power is limited to
certain acts needed to implement the protective order. A fiduciary appointed
under this subsection need only make such report to the court as the court may
require.
     (5) In addition to any other protective
order that may be entered under this section, the court may authorize, direct
or ratify:
     (a) Any transaction necessary or desirable
to achieve any security, service or care arrangement meeting the foreseeable
needs of the protected person, including but not limited to payment, delivery,
deposit or retention of funds or property, sale, mortgage, lease or other
transfer of property, entry into an annuity contract, a contract for life care,
a deposit contract, a contract for training and education, or addition to or
establishment of a suitable trust.
     (b) Any contract, trust or other
transaction relating to the protected personÂ’s financial affairs or involving
the estate of the person if the court determines that the transaction is in the
best interests of the protected person. [1995 c.664 §66]
PUBLIC GUARDIANS
AND CONSERVATORS
     125.700
Office of public guardian and conservator; expenses; termination. The county court or board of county
commissioners of any county:
     (1) After making a determination that
there exists a need within the county for a guardian or conservator for persons
who do not have relatives or friends willing to serve as a guardian or
conservator and capable of assuming the duties of guardianship or
conservatorship, may create within the county the office of public guardian and
conservator and such subordinate positions as may be necessary to operate
effectively the office of public guardian and conservator within the county.
     (2) May expend county funds for the
purpose of operating the office of public guardian and conservator.
     (3) After establishment of the office of
public guardian and conservator within a county, upon the finding that the
county does not need the service of a public guardian and conservator, may
terminate the office. [Formerly 126.905]
     Note: 125.700 to 125.730 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
125 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     125.705
Effect of vacancy in office of public guardian and conservator. The person appointed to the office of public
guardian and conservator shall serve in the office at the pleasure of the
appointing authority. If the person holding the office of public guardian and
conservator in a county is removed from office, dies, becomes incapacitated or
resigns, the removal, death, incapacity or resignation shall operate to remove
such public guardian and conservator as guardian and conservator of all estates
then under the guardianship and conservatorship of the person. [Formerly
126.915]
     Note: See note under 125.700.
     125.710
Powers and duties of public guardian and conservator. (1) The public guardian and conservator may
serve as the guardian or conservator, or both, of any person of whom the court
having probate jurisdiction in the county may have jurisdiction. The public
guardian and conservator may serve as guardian or conservator upon the petition
of any person or upon the own petition of the public guardian and conservator.
     (2) When appointed as guardian or
conservator by the court having probate jurisdiction, the public guardian and
conservator shall serve as provided in ORS chapter 125, ORS 127.005 and 127.015
except as specifically stated to the contrary in ORS 125.700 to 125.730.
     (3) The public guardian and conservator in
the discretion of the public guardian and conservator may employ private
attorneys if the fees for the attorneys can be defrayed out of funds of the
guardianship or conservatorship estate. [Formerly 126.925]
     Note: See note under 125.700.
     125.715
Bond; exoneration of surety.
(1) Before entering into office as public guardian and conservator, the person
appointed to the office shall file an official bond in such amount as may be
fixed from time to time by the board of county commissioners or the court
having probate jurisdiction, which bond shall inure to the joint benefit of the
several guardianship or conservatorship estates in which the person is acting
as guardian or conservator and the county. The public guardian and conservator
shall not be required to file bonds in individual estates.
     (2) Upon removal of the public guardian
and conservator in accordance with the provisions of ORS 125.705, the surety on
the public guardian and conservator bond shall be exonerated upon order to that
effect of the court having probate jurisdiction in the county. [Formerly
126.935]
     Note: See note under 125.700.
     125.720
Deposit of funds. All funds
coming into the custody of the public guardian and conservator shall be
deposited in the county treasury and disbursed by proper warrant, or shall be
deposited in one or more banks or invested in one or more insured savings and
loan associations authorized to do business within the county, or as provided
by ORS 125.445 (5). [Formerly 126.945]
     Note: See note under 125.700.
     125.725
Reimbursement of public guardian and conservatorÂ’s expenses from estate of ward
or protected person. The
public guardian and conservator shall have a claim against the wardÂ’s or
protected personÂ’s estate for reasonable expenses incurred in the execution of
the guardianship or conservatorship and such compensation for services and
those of the attorney of the public guardian and conservator as the court
having probate jurisdiction in the county deems just and reasonable. If the
public guardian and conservator is compensated by the county for services, any
reimbursement of expenses or compensation shall be paid to the county. [Formerly
126.955]
     Note: See note under 125.700.
     125.730
Fees prohibited. No fee
shall be charged or received by any court having probate jurisdiction for the
filing of any petition asking for the appointment of the public guardian and
conservator or for any official service performed by that court in the course
of the guardianship or conservatorship proceedings. [Formerly 126.965]
     Note: See note under 125.700.
_______________
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