ORS Chapter 124 - Oregon Statutes

TITLE 13

PROTECTIVEPROCEEDINGS; POWERS OF ATTORNEY; TRUSTS

 

Chapter     124.     AbusePrevention and Reporting; Civil Action for Abuse

                  125.     ProtectiveProceedings

                  126.     PropertyHeld for the Benefit of Minors; Uniform Transfers to Minors Act

                  127.     Powersof Attorney; Advance Directives for Health Care; Physician Orders forLife-Sustaining Treatment Registry; Declarations for Mental Health Treatment;Death with Dignity

                  128.     Trusts;Charitable Activities

                  129.     UniformPrincipal and Income Act

                  130.     UniformTrust Code

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Chapter 124 — AbusePrevention and Reporting; Civil Action for Abuse

 

2009 EDITION

 

ABUSEPREVENTION; REPORTING; CIVIL ACTIONS

 

PROTECTIVEPROCEEDINGS; POWERS OF ATTORNEY; TRUSTS

 

ELDERLYPERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT

 

124.005     Definitionsfor ORS 124.005 to 124.040

 

124.010     Petitionfor relief; time limitation; information to be provided petitioner; exception

 

124.012     Filingof petitions; where contempt proceedings must be conducted

 

124.015     Hearingupon request of respondent; relief; settlement; effect of proceedings

 

124.020     Exparte hearing; required findings; judicial relief; forms; request by respondentfor hearing

 

124.022     Serviceof restraining order by sheriff; facsimile of order

 

124.024     Noticeto be given by guardian petitioner

 

124.025     Removalof personal effects; accompanying peace officer; limitation on liability

 

124.030     Proofof service of restraining order to be delivered to sheriff; entry in LEDS;expiration of restraining order; release of respondent pending hearing

 

124.035     Renewalof restraining order

 

124.040     Shorttitle

 

REPORTINGOF ABUSE OF ELDERLY PERSONS

 

124.050     Definitionsfor ORS 124.050 to 124.095

 

124.055     Policy

 

124.060     Dutyof officials to report; exception

 

124.065     Methodof reporting; content; notice to law enforcement agency and to department

 

124.070     Dutyto investigate; notice to law enforcement agency and department; writtenfindings; review by district attorney

 

124.075     Immunityof person making report in good faith; identity confidential

 

124.077     Immunityfor disclosure to prospective employer

 

124.080     Photographingof victim; photograph as record

 

124.085     Catalogof abuse records; confidentiality

 

124.090     Confidentialityof records; exceptions

 

124.095     Spiritualtreatment not abuse

 

CIVILACTION FOR ABUSE OF VULNERABLE PERSON

 

124.100     Definitionsfor ORS 124.100 to 124.140; action authorized; relief; qualifications forbringing action; service on Attorney General

 

124.105     Physicalabuse subject to action

 

124.110     Financialabuse subject to action

 

124.115     Personsnot subject to action

 

124.120     Reliefavailable

 

124.125     Actionby Attorney General, Department of Human Services or district attorney;investigative demands

 

124.130     Statuteof limitation

 

124.135     Remediesnot exclusive

 

124.140     Estoppelbased on criminal conviction

 

PENALTIES

 

124.990     Criminalpenalty

 

ELDERLYPERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT

 

      124.005Definitions for ORS 124.005 to 124.040. As used in ORS 124.005 to 124.040:

      (1)“Abuse” means one or more of the following:

      (a)Any physical injury caused by other than accidental means, or that appears tobe at variance with the explanation given of the injury.

      (b)Neglect that leads to physical harm through withholding of services necessaryto maintain health and well-being.

      (c)Abandonment, including desertion or willful forsaking of an elderly person or aperson with a disability or the withdrawal or neglect of duties and obligationsowed an elderly person or a person with a disability by a caregiver or otherperson.

      (d)Willful infliction of physical pain or injury.

      (e)Use of derogatory or inappropriate names, phrases or profanity, ridicule,harassment, coercion, threats, cursing, intimidation or inappropriate sexualcomments or conduct of such a nature as to threaten significant physical oremotional harm to the elderly person or person with a disability.

      (f)Causing any sweepstakes promotion to be mailed to an elderly person or a personwith a disability who had received sweepstakes promotional material in theUnited States mail, spent more than $500 in the preceding year on anysweepstakes promotions, or any combination of sweepstakes promotions from thesame service, regardless of the identities of the originators of the sweepstakespromotion and who represented to the court that the person felt the need forthe court’s assistance to prevent the person from incurring further expense.

      (g)Wrongfully taking or appropriating money or property, or knowingly subjectingan elderly person or person with a disability to alarm by conveying a threat towrongfully take or appropriate money or property, which threat reasonably wouldbe expected to cause the elderly person or person with a disability to believethat the threat will be carried out.

      (h)Sexual contact with a nonconsenting elderly person or person with a disabilityor with an elderly person or person with a disability considered incapable ofconsenting to a sexual act as described in ORS 163.315. As used in thisparagraph, “sexual contact” has the meaning given that term in ORS 163.305.

      (2)“Elderly person” means any person 65 years of age or older who is not subjectto the provisions of ORS 441.640 to 441.665.

      (3)“Guardian petitioner” means a guardian or guardian ad litem for an elderlyperson or a person with a disability who files a petition under ORS 124.005 to124.040 on behalf of the elderly person or person with a disability.

      (4)“Interfere” means to interpose in a way that hinders or impedes.

      (5)“Intimidate” means to compel or deter conduct by a threat.

      (6)“Menace” means to act in a threatening manner.

      (7)“Molest” means to annoy, disturb or persecute with hostile intent or injuriouseffect.

      (8)“Person with a disability” means a person described in:

      (a)ORS 410.040 (7)(b); or

      (b)ORS 410.715.

      (9)“Petitioner” means an elderly person or a person with a disability who files apetition under ORS 124.005 to 124.040.

      (10)“Sweepstakes” means:

      (a)A procedure for awarding a prize that is based on chance;

      (b)A procedure in which a person is required to purchase anything, pay anything ofvalue or make a donation as a condition of winning a prize or of receiving orobtaining information about a prize; or

      (c)A procedure that is advertised in a way that creates a reasonable impressionthat a payment of anything of value, purchase of anything or making a donationis a condition of winning a prize or receiving or obtaining information about aprize.

      (11)“Sweepstakes promotion” means an offer to participate in a sweepstakes. [1995c.666 §§3,3a; 1999 c.738 §1; 1999 c.875 §6; 2003 c.257 §1a; 2003 c.264 §1; 2005c.671 §1; 2007 c.70 §24]

 

      124.010Petition for relief; time limitation; information to be provided petitioner;exception.(1)(a) Except as provided in subsection (8) of this section, an elderly personor a person with a disability who has been the victim of abuse within thepreceding 180 days or a guardian or guardian ad litem of an elderly person or aperson with a disability who has been the victim of abuse within the preceding180 days may petition the circuit court for relief under ORS 124.005 to124.040, if the person is in immediate and present danger of further abuse fromthe abuser.

      (b)The elderly person or person with a disability or the guardian or guardian adlitem of the person may seek relief by filing a petition with the circuit courtalleging that the person is in immediate and present danger of further abusefrom the respondent, alleging that the person has been the victim of abusecommitted by the respondent within the 180 days preceding the filing of thepetition and describing the nature of the abuse and the approximate datesthereof. The abuse must have occurred not more than 180 days before the filingof the petition.

      (c)A petitioner or guardian petitioner is not required to provide in the petitioninformation regarding the relationship between the elderly person or personwith a disability and the respondent.

      (d)Allegations in the petition must be made under oath or affirmation. The circuitcourt has jurisdiction over all proceedings under ORS 124.005 to 124.040.

      (2)The petitioner or guardian petitioner has the burden of proving a claim underORS 124.005 to 124.040 by a preponderance of the evidence.

      (3)The right to petition for relief under ORS 124.005 to 124.040 is not affectedby the fact that the elderly person or person with a disability has left theresidence or household to avoid abuse.

      (4)A petition filed under ORS 124.005 to 124.040 must disclose the existence ofany Elderly Persons and Persons With Disabilities Abuse Prevention Actproceedings, any Abuse Prevention Act proceedings, any marital annulment,dissolution or separation proceedings pending between the parties or anyprotective proceedings under ORS chapter 125.

      (5)Upon the filing of a petition under ORS 124.005 to 124.040, the clerk of thecourt shall give the petitioner or guardian petitioner information provided bythe Department of Human Services about local adult protective services,domestic violence shelters and local legal services available.

      (6)For purposes of computing the 180-day period in this section and ORS 124.020,any time during which the respondent is incarcerated or has a principalresidence more than 100 miles from the principal residence of the elderlyperson or person with a disability is not counted as part of the 180-dayperiod.

      (7)If a guardian or guardian ad litem files a petition under this section onbehalf of an elderly person or a person with a disability, the elderly personor person with a disability retains the right to:

      (a)Contact and retain counsel;

      (b)Have access to personal records;

      (c)File objections to the restraining order;

      (d)Request a hearing; and

      (e)Present evidence and cross-examine witnesses at any hearing.

      (8)An elderly person or a person with a disability may not file a petition underORS 124.005 to 124.040 against a guardian or conservator for the person. [1995c.666 §4; 1999 c.738 §2; 1999 c.1052 §11; 2003 c.257 §2a; 2003 c.264 §2; 2005c.671 §2; 2007 c.70 §25]

 

      124.012Filing of petitions; where contempt proceedings must be conducted. A petitionunder ORS 124.010 may be filed only in a county in which the petitioner orrespondent resides. Any contempt proceedings for violation of a restrainingorder issued under ORS 124.005 to 124.040 must be conducted by the court thatissued the order, or by the circuit court for a county in which a violation ofthe restraining order occurs. If contempt proceedings are initiated in thecircuit court for a county in which a violation of the restraining orderoccurs, the person initiating the contempt proceedings shall file with thecourt a copy of the restraining order, certified by the clerk of the court thatissued the order. Upon filing of the certified copy of the restraining order,the court shall enforce the order as though that court had issued the order. [2003c.289 §4]

 

      124.015Hearing upon request of respondent; relief; settlement; effect of proceedings. (1) The courtshall hold a hearing within 21 days following the request, and may cancel orchange any order issued under ORS 124.020 if the respondent, elderly person orperson with a disability requests a hearing pursuant to ORS 124.020 (9).

      (2)In addition to the relief granted under ORS 124.020, the court, in a hearingheld pursuant to subsection (1) of this section, may:

      (a)Require either party to move from any residence whose title or right to occupysuch premises is held jointly by the parties; and

      (b)Assess against any party reasonable attorney fees and such costs as may beincurred in the hearing.

      (3)(a)If the respondent is represented by an attorney, time for the hearing may beextended for up to five days at the request of the petitioner or guardianpetitioner so that the petitioner or guardian petitioner may seekrepresentation.

      (b)If the elderly person or person with a disability is represented by anattorney, time for the hearing may be extended for up to five days at therequest of the respondent or guardian petitioner so that the respondent or guardianpetitioner may seek representation.

      (4)The court may approve any consent agreement to bring about a cessation of abuseof the parties. However, the court may not approve a term in a consentagreement that provides for restraint of a party to the agreement unless theother party petitioned for and was granted an order under ORS 124.010. An orderor consent agreement made under this section may be amended at any time andshall continue in effect for a period of one year from the date of the order issuedunder ORS 124.020.

      (5)An order or agreement made under ORS 124.005 to 124.040 or ORS 133.310 and133.381 may not in any manner affect title to any real property.

      (6)No undertaking shall be required in any proceeding under ORS 124.005 to124.040.

      (7)Any proceeding under ORS 124.005 to 124.040 shall be in addition to and not inlieu of any other available civil or criminal remedies.

      (8)Notwithstanding any right or remedy established in ORS chapter 90 or ORS105.105 to 105.168, a petitioner or guardian petitioner may enforce an orderissued under ORS 124.005 to 124.040. [1995 c.666 §§5,5a; 2003 c.257 §3a; 2005c.671 §9; 2007 c.70 §26]

 

      124.020Ex parte hearing; required findings; judicial relief; forms; request byrespondent for hearing. (1) When a petitioner or guardian petitioner filesa petition under ORS 124.010, the circuit court shall hold an ex parte hearingin person or by telephone on the day the petition is filed or on the followingjudicial day. Upon a showing that the elderly person or person with adisability named in the petition has been the victim of abuse committed by therespondent within 180 days preceding the filing of the petition and that thereis an immediate and present danger of further abuse to the person, the courtshall, if requested by the petitioner or guardian petitioner, order, for aperiod of one year or until the order is withdrawn or amended, whichever issooner:

      (a)That the respondent be required to move from the residence of the elderlyperson or person with a disability, if in the sole name of the person or ifjointly owned or rented by the person and the respondent, or if the parties aremarried to each other;

      (b)That a peace officer accompany the party who is leaving or has left the parties’residence to remove essential personal effects of the party;

      (c)That the respondent be restrained from abusing, intimidating, molesting,interfering with or menacing the elderly person or person with a disability, orattempting to abuse, intimidate, molest, interfere with or menace the person;

      (d)That the respondent be restrained from entering, or attempting to enter, on anypremises when it appears to the court that such restraint is necessary toprevent the respondent from abusing, intimidating, molesting, interfering withor menacing the elderly person or person with a disability;

      (e)That the respondent be:

      (A)Restrained, effective on a date not less than 150 days from the date of theorder, from mailing the elderly person or person with a disability anysweepstakes promotion;

      (B)Required to remove the elderly person or person with a disability from therespondent’s sweepstakes promotion mailing list or place the person on a listof persons to whom sweepstakes promotions may not be mailed; and

      (C)Required to promptly refund any payment received in any form from the elderlyperson or person with a disability after the date the order is entered by thecourt; or

      (f)Except as provided in subsection (2) of this section, other relief that thecourt considers necessary to provide for the safety and welfare of the elderlyperson or person with a disability.

      (2)(a)If the court finds that the elderly person or person with a disability has beenthe victim of abuse as defined in ORS 124.005 (1)(g), the court may order onlyrelief that the court considers necessary to prevent or remedy the wrongfultaking or appropriation of the money or property of the person, including butnot limited to:

      (A)Directing the respondent to refrain from exercising control over the money or propertyof the person;

      (B)Requiring the respondent to return custody or control of the money or propertyof the person to the person;

      (C)Requiring the respondent to follow the instructions of the guardian orconservator of the person; or

      (D)Prohibiting the respondent from transferring the money or property of theelderly person or person with a disability to any person other than the elderlyperson or person with a disability.

      (b)The court may not use a restraining order issued under ORS 124.005 to 124.040:

      (A)To allow any person other than the elderly person or person with a disabilityto assume responsibility for managing any of the money or property of theelderly person or person with a disability; or

      (B)For relief that is more appropriately obtained in a protective proceeding filedunder ORS chapter 125 including, but not limited to, giving control andmanagement of the financial accounts or property of the elderly person orperson with a disability for any purpose other than the relief granted underparagraph (a) of this subsection.

      (3)The showing required under subsection (1) of this section may be made bytestimony of:

      (a)The elderly person or person with a disability;

      (b)The guardian or guardian ad litem of the elderly person or person with adisability;

      (c)Witnesses to the abuse; or

      (d)Adult protective services workers who have conducted an investigation.

      (4)Immediate and present danger under this section includes but is not limited tosituations in which the respondent has recently threatened the elderly personor person with a disability with additional abuse.

      (5)When a guardian petitioner files a petition on behalf of an elderly person or aperson with a disability, the guardian petitioner shall provide informationabout the person and not about the guardian petitioner where the petition,order or related forms described in subsection (6) of this section requireinformation about the petitioner.

      (6)An instruction brochure shall be available from the clerk of the court explainingthe rights set forth under ORS 124.005 to 124.040. The petition, order andrelated forms shall be available from the clerk of the court and shall be insubstantially the following form:

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