Chapter 125
125.005
NOTES OF DECISIONS
To establish person is “incapacitated” requires clear and convincing evidence that person has severely impaired perception or communication skills that cause person to be unable to perform essential functions, resulting in threat to life or health. Schaefer v. Schaefer, 183 Or App 513, 52 P3d 1125 (2002)
LAW REVIEW CITATIONS: 98 OLR 325 (2020)
125.025
NOTES OF DECISIONS
“Property of the protected person” includes estate funds used to pay for legal services related to protective proceeding. Caswell v. Day Law and Associates, P.C., 309 Or App 367, 481 P3d 972 (2021)
125.060
NOTES OF DECISIONS
Failure to provide notice of guardianship proceeding to parent renders guardianship order void as to that parent. Middleton v. Chaney, 177 Or App 679, 34 P3d 722 (2001), modified335 Or 58, 57 P3d 893 (2002)
Service of notice of petition is sufficient to give court personal jurisdiction over respondent’s adult child domiciled within state, whether or not child files objection or request for notice with court. Haley v. Haley, 215 Or App 36, 168 P3d 305 (2007)
125.065
NOTES OF DECISIONS
Failure to provide notice of guardianship proceeding to parent renders guardianship order void as to that parent. Middleton v. Chaney, 177 Or App 679, 34 P3d 722 (2001), modified335 Or 58, 57 P3d 893 (2002)
125.095
NOTES OF DECISIONS
Transfer of funds to trust fund for purposes of paying for services for protected person does not constitute payment if protected person retains legal right to request return of funds. Dorszynski v. Department of Human Services, 238 Or App 285, 242 P3d 657 (2010)
Court may use protected person’s funds to pay reasonable compensation to attorney who provided services on behalf of protected person. Derkatsch v. Thorp, Purdy, Jewett, Urness & Wilkinson, PC, 248 Or App 185, 273 P3d 204 (2012)
Person is protected person at time that protective order has been entered; person is merely respondent at time that person is seeking protective order. Derkatsch v. Thorp, Purdy, Jewett, Urness & Wilkinson, PC, 248 Or App 185, 273 P3d 204 (2012)
Payment of compensation for services rendered is not contingent on those services being beneficial to protected person. Derkatsch v. Thorp, Purdy, Jewett, Urness & Wilkinson, PC, 248 Or App 185, 273 P3d 204 (2012)
125.300
NOTES OF DECISIONS
Under former similar statute (ORS 126.098)
Change of adult ward’s domicile by guardian in Oregon must be accomplished directly by court order or under court order that expressly authorizes guardian to change domicile. Little v. Dept. of Rev., 11 OTR 219 (1989)
125.305
NOTES OF DECISIONS
Juvenile court initiating guardianship must proceed under guardianship statute found in juvenile code, not guardianship statute under probate code. Kelley v. Gibson, 184 Or App 343, 56 P3d 925 (2002)
Guardianship actions involving child who is not subject to court’s juvenile dependency jurisdiction and whose legal parent objects to appointment of guardian are subject to requirements of both this section and ORS 109.119. Burk v. Hall, 186 Or App 113, 62 P3d 394 (2003), Sup Ct review denied
Finding that appointment of guardian to make health care decisions for child is necessary by clear and convincing evidence does not require that court find natural parent to be unfit in general. State ex rel Juvenile Department v. Smith, 205 Or App 152, 133 P3d 924 (2006)
Court could not under probate code appoint grandfather as guardian for child of which juvenile court had taken wardship, because guardianship proceedings under juvenile dependency code are exclusive means for establishing guardianship for ward within juvenile court’s exclusive dependency jurisdiction and probate code does not provide alternative means for establishing guardianship. Keffer v. A.R.M., 313 Or App 503, 497 P3d 781 (2021)
125.315
NOTES OF DECISIONS
Under former similar statute (ORS 126.137)
Change of adult ward’s domicile by guardian in Oregon must be accomplished directly by court order or under court order that expressly authorizes guardian to change domicile. Little v. Dept. of Rev., 11 OTR 219 (1989)
In general
Statutory provision that guardian has no obligation to support minor beyond resources of minor’s estate does not make agreement to provide support illegal or contrary to public policy. Compton v. Compton, 187 Or App 142, 66 P3d 572 (2003)
ATTY. GEN. OPINIONS
Under former similar statute (ORS 126.080)
Authority of Children’s Services Division to use social security, veterans’ and other benefits to defray care costs of guardianship children, (1981) Vol 42, p 146
Under former similar statute (ORS 126.137)
Corporation as guardian of incapacitated person, (1980) Vol 40, p 405
125.420
NOTES OF DECISIONS
Under former similar statute (ORS 126.293)
Conservator is not required to separate joint account with right of survivorship owned by protected person and another person if funds of protected person are available for use by protected person. Elardo v. Carr, 118 Or App 407, 847 P2d 892 (1993)
ATTY. GEN. OPINIONS
Under former similar statute (ORS 126.293)
Earnings to be credited to individual accounts, (1976) Vol 38, p 243
125.425
NOTES OF DECISIONS
Under former similar statute (ORS 126.313)
Conservator is not required to separate joint account with right of survivorship owned by protected person and another person because of mere possibility that other person may misuse authority. Elardo v. Carr, 118 Or App 407, 847 P2d 892 (1993)
125.435
NOTES OF DECISIONS
Under former similar statute (ORS 126.327)
Conservator had power to make gifts to herself and her family where gifts were continuation of family custom. Willbanks v. Mars, 37 Or App 795, 588 P2d 118 (1978), Sup Ct review denied
125.445
NOTES OF DECISIONS
Under former similar statute (ORS 126.313)
Authority to make ordinary or extraordinary repairs and alterations to property does not authorize unreasonable making of permanent improvements to property. Willbanks v. Mars, 37 Or App 795, 588 P2d 118 (1978), Sup Ct review denied
Since this section specifically authorizes conservators to enter into binding agreements to settle personal injury claims without court approval, parties were not required to follow local court rule requiring such approval. Hansen v. Bussman, 287 Or 527, 601 P2d 794 (1979)
In general
Transfer of funds to trust fund for purposes of paying for services for protected person does not constitute payment by conservator to attorney or other person if protected person retains legal right to request return of funds. Dorszynski v. Department of Human Services, 238 Or App 285, 242 P3d 657 (2010)
125.460
NOTES OF DECISIONS
Under former similar statute (ORS 126.347)
Conservator is not required to separate joint account with right of survivorship owned by protected person and another person. Elardo v. Carr, 118 Or App 407, 847 P2d 892 (1993)
125.480
NOTES OF DECISIONS
Conservator is liable for breaches of fiduciary duty connected with final accounting that occur after approval of intermediate accounting and while conservatorship is still open until final accounting is approved. Fuentes v. Tillett, 263 Or App 9, 326 P3d 1263 (2014)
125.520
NOTES OF DECISIONS
Under former similar statute (ORS 126.377)
Preference given to providing for welfare of protected person and payment of administrative expenses supersedes priority given perfected lien against real property. Crofoot v. Oregon State Bar, 54 Or App 151, 634 P2d 284 (1981)
125.530
NOTES OF DECISIONS
Under former similar statute (ORS 126.337)
At death of protected person, conservator retains property for delivery to personal representative and upon order of court delivers assets other than assets retained by conservator as being required for payment of estate expenses. Naito v. Naito, 125 Or App 231, 864 P2d 1346 (1993), Sup Ct review denied