Wealth Law Blog : Oregon Asset Protection Lawyers & Attorneys : Samuels Yoelin Kantor Seymour & Spinrad Law Firm : OR Estate Planning, Fiduciary Litigation

From time to time, we will publish blurbs on recent local court opinions and state legislation:

Senate Bill 238

Oregon Senate Bill 238 enacts the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. It is broken into five different articles that provide a uniform procedure for people to follow when a guardianship or conservatorship case may involve multiple states.

ARTICLE ONE:  The first article sets out basic definitions as well as several provisions that permit Oregon courts to work with courts in other jurisdictions in conservatorship and guardianship matters (hereinafter collectively referred to as “protective proceedings”). It gives courts permission to speak with courts of another state regarding protective proceedings. It also gives Oregon courts the ability to cooperate with protective proceedings being held in other states by holding evidentiary hearings, ordering an evaluation of a respondent, releasing medical records, and multiple other functions that could be achieved by a local court more easily than a foreign court. Last, it provides that testimony for a protective proceeding may be taken in another state and that an Oregon court must cooperate in setting a location for the testimony.

ARTICLE TWO:  Article two addresses how courts should determine the proper jurisdiction for a protective proceeding. Jurisdiction can be granted in a protective proceeding for a laundry list of reasons, but the main purpose of this article is to create a system where only one protective proceeding is ongoing and to set out basic rules for courts to use to decide which court should proceed and which court should dismiss. This article also creates the ability for an Oregon court to exercise “special jurisdiction” in an emergency, when property is in the state of Oregon, or to appoint a guardian or conservator for an incapacitated or protected person when a party is transferring a petition from another state. Last, this article allows a court to decline jurisdiction because there is a more appropriate forum for the protective proceeding.

ARTICLE THREE:  The third article sets out procedures for transferring a protective proceeding to a court in a different state. On the court’s own motion or by a party’s petition, the court may make a provisional order transferring the case. The article lists multiple factors the court should consider when making such a determination. The order is provisional because it is dependent upon the other state accepting jurisdiction over the protective proceeding. The second part of article three sets out the procedure for Oregon courts to use to determine if it should take jurisdiction over a case being transferred to it by another state.

ARTICLE FOUR:  The registration and recognition of protective orders from other states is set out in article four. A registered order allows all powers of the registered order to be recognized in the state of Oregon, except any authority that may be prohibited under Oregon law. 

ARTICLE FIVE:  Article five makes several minor amendments to ORS 125.015, 125.025, and 125.215. These three sections deal with jurisdiction, and article five makes them subject to the new jurisdictional provisions set out in articles one through four. 

Taken as a whole, Senate Bill 238 is an extremely comprehensive and expansive jurisdictional statute to which special attention should be paid when bringing a protective proceeding.

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From time to time, we will publish blurbs on recent local court opinions and state legislation:

Senate Bill 237

Senate Bill 237 amends ORS 127 and legally sanctions the use of a “springing” power of attorney. This means that a person may execute a power of attorney that indicates by a specific date or occurrence, the power of attorney will become effective. If a person does not indicate a “trigger” event (usually financial or physical incapacity), the power of attorney becomes effective upon execution and remains effective until revoked. 

The bill attempts to place multiple safeguards against abuse of the springing power of attorney. First, the statute allows a person or "principal” to designate in their power of attorney who shall make the determination that the trigger event has occurred. This person does not have to be the same person that will be the agent under the power of attorney. If such a person is designated, the bill provides that this person will be considered the personal representative of the principal for purposes of ORS 192.518 et seq., which deals with state health care information, and 45 C.R.F. 160 & 164, which deal with federal health care information.

Second, if the trigger event is the financial incapability of the principal, but a person is not designated in the power of attorney to make this determination, any physician can make the determination in writing. Once this determination is made, all acts by the agent under the power of attorney on behalf of the financially incapable principal will bind the principal as if he had taken the action himself while financially capable. 

The final substantive amendment to ORS 127 by Senate bill 237 is a clause meant to provide protection for an agent that acts in good faith, but without proper authority. Section three of the bill states that a power of attorney terminates upon a designated event or the death of the principal. But, the power of attorney is still effective, if the agent acts in good faith on behalf of the principal without the knowledge that the terminating event has already occurred. Absent fraud, an affidavit by the agent that states such facts is conclusive proof that the action is binding upon the principal and his heirs, even though the power of attorney was technically no longer in effect. 

Last, this bill applies to all powers of attorney, regardless of whether they were executed prior to the effective date of the bill (January 1, 2010).

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Is your family fighting over who should or should not get dearly departed Dad’s property? Are you fairly certain a trustee is lining his own pockets, rather than aiding the beneficiaries? Did a caretaker unduly influence your ailing mother so he inherited the vast estate? Then you need to talk with a fiduciary litigator: You need someone on your side that can walk you through the legal and emotional challenges of fiduciary litigation. You need someone that possesses these traits:

1.       Communication Skills. 

Litigation is stressful. Litigation involving other family members or family money is especially stressful. If you find an attorney that primarily works with corporate clients, he may lack the ability to communicate with you about the many steps involved with litigation, having become too comfortable with a standard business cost-benefit analysis of litigation. For example, if litigation is unfamiliar to you, you will need to hear the same advice repeatedly, so you need someone to communicate clearly – and patiently.

2.       Empathy.

Venting is an important part of the grief process, as well as the litigation process, as can be ranting, crying, or beating your head against the wall in frustration. If you find your attorney only wants to discuss the law, then you need a different attorney. The law is applied to the facts, and to know the facts, the attorney must know you. And to know you is to listen to you and empathize.   Fiduciary litigation creates more than an attorney-client relationship; it bonds you together, so choose someone with whom you connect.

3.       Strong Legal Team.

Certainly you want your fiduciary litigator to know the law, but the universe of law encompassing fiduciary litigation can be large. There may be good solo practitioners out there that handle fiduciary litigation, but more often than not there can be complex real estate, tax, or other legal issues intertwined with the trust or estate dispute that requires the fiduciary litigator to reach out to those who specialize in those areas. The best solution is to locate a fiduciary litigator that has a firm with other attorneys that can collectively provide their expertise for such situations. This is particularly true when the vast majority of cases settle short of conventional trial, so the involvement of tax law specialists on complicated settlements is often needed.

4.        Confidence.

To effectively persuade a judge or jury, one needs to be confident. But there is indeed a fine line between being a confident attorney and a/an [insert your favorite expletive here]. Sadly, those that gleefully leap over that line are what give trial attorneys a bad name. But the confidence of which I speak is not limited to the courtroom. A good fiduciary litigator needs to have the confidence to be able to tell her client the weaknesses or risks with the case, as well as the potential for recovery. It takes confidence to be honest with the client.

This is a short checklist, but it covers the important points. Simply put, spend some time to interview your fiduciary litigator, because you do not want to settle for the least expensive attorney or the one that you heard was a “bulldog.” You want one that meets your needs and makes a real and personal connection with you. Such attorneys do exist.    

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