TITLE 13

PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY; TRUSTS

 

Chapter     124.     Abuse Prevention and Reporting; Civil Action for Abuse

                  125.     Protective Proceedings

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

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

                  128.     Trusts; Charitable Activities

                  129.     Uniform Principal and Income Act

                  130.     Uniform Trust Code

_______________

 

Chapter 124 — Abuse Prevention and Reporting; Civil Action for Abuse

 

2015 EDITION

 

 

ABUSE PREVENTION; REPORTING; CIVIL ACTIONS

 

PROTECTIVE PROCEEDINGS; POWERS OF ATTORNEY; TRUSTS

 

ELDERLY PERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT

 

124.005     Definitions for ORS 124.005 to 124.040

 

124.010     Petition for relief; time limitation; information to be provided petitioner; exception

 

124.012     Filing of petitions; where contempt proceedings must be conducted

 

124.015     Hearing upon request of respondent; relief; settlement; effect of proceedings

 

124.020     Ex parte hearing; required findings; judicial relief; forms; request by respondent for hearing

 

124.022     Service of restraining order by sheriff; transmission by electronic communication device

 

124.024     Notice to be given by guardian petitioner

 

124.025     Removal of personal effects; accompanying peace officer; limitation on liability

 

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

 

124.035     Renewal of restraining order

 

124.040     Short title

 

REPORTING OF ABUSE

 

124.050     Definitions for ORS 124.050 to 124.095

 

124.055     Policy

 

124.060     Duty of officials to report; exception

 

124.065     Method of reporting; content; notice to law enforcement agency and to department

 

124.070     Duty to investigate; notice to law enforcement agency and department; written findings; review by district attorney

 

124.071     Deadline to complete abuse investigation; exception; written report required

 

124.072     Required disclosure of protected health information to law enforcement agency; liability for disclosure

 

124.073     Training for abuse investigators

 

124.075     Immunity of person making report in good faith; identity confidential

 

124.077     Immunity for disclosure to prospective employer

 

124.080     Photographing of victim; photograph as record

 

124.085     Catalog of abuse records; confidentiality

 

124.087     Policies and guidelines to plan for development and standardization of certain resources and technologies

 

124.090     Confidentiality of records; exceptions

 

124.095     Spiritual treatment not abuse

 

CIVIL ACTION FOR ABUSE OF VULNERABLE PERSON

 

124.100     Definitions for ORS 124.100 to 124.140; action authorized; relief; qualifications for bringing action; service on Attorney General

 

124.105     Physical abuse subject to action

 

124.110     Financial abuse subject to action

 

124.115     Persons not subject to action

 

124.120     Relief available

 

124.125     Action by Attorney General, Department of Human Services, other agency or district attorney; investigative demands

 

124.130     Statute of limitation

 

124.135     Remedies not exclusive

 

124.140     Estoppel based on criminal conviction

 

PENALTIES

 

124.990     Criminal penalty

 

ELDERLY PERSONS AND PERSONS WITH DISABILITIES ABUSE PREVENTION ACT

 

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

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

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

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

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

      (d) Willful infliction of physical pain or injury.

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

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

      (g) Wrongfully taking or appropriating money or property, or knowingly subjecting an elderly person or person with a disability to alarm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the elderly person or person with a disability to believe that the threat will be carried out.

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

      (2) “Declaration under penalty of perjury” means a declaration under penalty of perjury in the form required by ORCP 1 E.

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

      (4) “Guardian petitioner” means a guardian or guardian ad litem for an elderly person or a person with a disability who files a petition under ORS 124.005 to 124.040 on behalf of the elderly person or person with a disability.

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

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

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

      (8) “Molest” means to annoy, disturb or persecute with hostile intent or injurious effect.

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

      (a) ORS 410.040 (7); or

      (b) ORS 410.715.

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

      (11) “Sweepstakes” means:

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

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

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

      (12) “Sweepstakes promotion” means an offer to participate in a sweepstakes. [1995 c.666 §§3,3a; 1999 c.738 §1; 1999 c.875 §6; 2003 c.257 §1a; 2003 c.264 §1; 2005 c.671 §1; 2007 c.70 §24; 2011 c.36 §2; 2015 c.121 §17]

 

      124.010 Petition for relief; time limitation; information to be provided petitioner; exception. (1)(a) Except as provided in subsection (8) of this section, an elderly person or a person with a disability who has been the victim of abuse within the preceding 180 days or a guardian or guardian ad litem of an elderly person or a person with a disability who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 124.005 to 124.040, if the person is in immediate and present danger of further abuse from the abuser.

      (b) The elderly person or person with a disability or the guardian or guardian ad litem of the person may seek relief by filing a petition with the circuit court alleging that the person is in immediate and present danger of further abuse from the respondent, alleging that the person has been the victim of abuse committed by the respondent within the 180 days preceding the filing of the petition and describing the nature of the abuse and the approximate dates thereof. The abuse must have occurred not more than 180 days before the filing of the petition.

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

      (d) The petition must include allegations made under oath or affirmation or a declaration under penalty of perjury. The circuit court has jurisdiction over all proceedings under ORS 124.005 to 124.040.

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

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

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

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

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

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

      (a) Contact and retain counsel;

      (b) Have access to personal records;

      (c) File objections to the restraining order;

      (d) Request a hearing; and

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

      (8) An elderly person or a person with a disability may not file a petition under ORS 124.005 to 124.040 against a guardian or conservator for the person. [1995 c.666 §4; 1999 c.738 §2; 1999 c.1052 §11; 2003 c.257 §2a; 2003 c.264 §2; 2005 c.671 §2; 2007 c.70 §25; 2015 c.121 §18]

 

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

 

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

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

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

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

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

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

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

      (5) An order or agreement made under ORS 124.005 to 124.040 or ORS 133.310 and 133.381 may not in any manner affect title to any real property.

      (6) No undertaking shall be required in any proceeding under ORS 124.005 to 124.040.

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

      (8) Notwithstanding any right or remedy established in ORS chapter 90 or ORS 105.105 to 105.168, a petitioner or guardian petitioner may enforce an order issued under ORS 124.005 to 124.040. [1995 c.666 §§5,5a; 2003 c.257 §3a; 2005 c.671 §9; 2007 c.70 §26]

 

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

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

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

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

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

      (e) That the respondent be:

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

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

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

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

      (2)(a) If the court finds that the elderly person or person with a disability has been the victim of abuse as defined in ORS 124.005 (1)(g), the court may order only relief that the court considers necessary to prevent or remedy the wrongful taking or appropriation of the money or property of the person, including but not limited to:

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

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

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

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

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

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

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

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

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

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

      (c) Witnesses to the abuse; or

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

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

      (5) When a guardian petitioner files a petition on behalf of an elderly person or a person with a disability, the guardian petitioner shall provide information about the person and not about the guardian petitioner where the petition, order or related forms prescribed under subsection (6) of this section require information about the petitioner.

      (6) The State Court Administrator shall prescribe the content and form of the petition, order and related forms for use under ORS 124.005 to 124.040. The clerk of the court shall make available the forms and an instruction brochure.

      (7) If the court orders relief:

      (a) The clerk of the court shall provide without charge the number of certified true copies of the petition and order necessary to effect service and shall have a true copy of the petition and order delivered to the county sheriff for service upon the respondent, unless the court finds that further service is unnecessary because the respondent appeared in person before the court.

      (b) The county sheriff shall serve the respondent personally unless the petitioner or guardian petitioner elects to have the respondent served personally by a private party or by a peace officer who is called to the scene of a domestic disturbance at which the respondent is present, and who is able to obtain a copy of the order within a reasonable amount of time. Proof of service shall be made in accordance with ORS 124.030.

      (c) A respondent accused of committing abuse by means of a sweepstakes promotion may be served:

      (A) Personally;

      (B) By mailing certified true copies of the petition and order by certified mail to the address to which the elderly person or person with a disability would have sent the payment for goods or services promoted in the sweepstakes promotion had the elderly person or person with a disability been ordering the goods or services; or

      (C) In the manner directed by the court.

      (d) No filing fee, service fee or hearing fee shall be charged for proceedings seeking only the relief provided under ORS 124.005 to 124.040.

      (8) If the county sheriff:

      (a) Determines that the order and petition are incomplete, the order and petition shall be returned to the clerk of the court. The clerk of the court shall notify the petitioner or guardian petitioner, at the address provided by the petitioner or guardian petitioner, of the error or omission.

      (b) After accepting the order and petition, cannot complete service within 10 days, the sheriff shall notify the petitioner or guardian petitioner, at the address provided by the petitioner or guardian petitioner, that the documents have not been served. If the petitioner or guardian petitioner does not respond within 10 days, the county sheriff shall hold the order and petition for future service and file a return to the clerk of the court showing that service was not completed.

      (9)(a) Within 30 days after a restraining order is served on the respondent under this section or within 30 days after notice is served on the elderly person or person with a disability under ORS 124.024, the respondent, elderly person or person with a disability may request a court hearing upon any relief granted. The hearing request form shall be available from the clerk of the court in the form prescribed by the State Court Administrator.

      (b) If the respondent, elderly person or person with a disability requests a hearing under paragraph (a) of this subsection, the clerk of the court shall notify the petitioner or guardian petitioner of the date and time of such hearing, and shall supply the petitioner or guardian petitioner with a copy of the request for a hearing. The petitioner or guardian petitioner shall give to the clerk of the court information sufficient to allow such notification.

      (c) The hearing is not limited to the issues raised in the request for hearing form and may include testimony from witnesses to the abuse and adult protective services workers. The hearing may be held in person or by telephone. If the respondent, elderly person or person with a disability seeks to raise an issue at the hearing not previously raised in the request for hearing form, the petitioner or guardian petitioner is entitled to a reasonable continuance for the purpose of preparing a response to the issue.

      (d) The court shall exercise its discretion in a manner that protects the elderly person or person with a disability from traumatic confrontation with the respondent. [1995 c.666 §§6,6a; 1997 c.249 §40; 1997 c.863 §5; 1999 c.738 §3; 1999 c.875 §7; 2003 c.257 §4a; 2003 c.264 §3; 2005 c.22 §97; 2005 c.671 §3; 2007 c.70 §27; 2015 c.119 §5; 2015 c.121 §19]

 

      124.022 Service of restraining order by sheriff; transmission by electronic communication device. (1) A sheriff may serve a restraining order issued under ORS 124.020 in the county in which the sheriff was elected and in any county that is adjacent to the county in which the sheriff was elected.

      (2) A sheriff may serve and enter into the Law Enforcement Data System a copy of a restraining order under ORS 124.020 that was transmitted to the sheriff by a court or law enforcement agency using an electronic communication device. Before transmitting a restraining order to a sheriff under this subsection by telephonic facsimile or electronic mail, the person sending the copy must receive confirmation from the sheriff’s office that an electronic communication device is available and operating. For purposes of this subsection, “electronic communication device” means a device by which any kind of electronic communication can be made, including but not limited to communication by telephonic facsimile and electronic mail. [2003 c.304 §12; 2007 c.255 §9; 2011 c.269 §4]

 

      124.024 Notice to be given by guardian petitioner. (1) A guardian petitioner must give notice of the petition, order and related forms prescribed under ORS 124.020 (6) to the elderly person or person with a disability named in the petition.

      (2) The guardian petitioner must also serve on the elderly person or person with a disability a notice that contains a statement of the rights of the person as follows:

      (a) The right to contact and retain counsel;

      (b) The right to have access to personal records;

      (c) The right to file objections to the restraining order;

      (d) The right to request a hearing to contest all or part of the restraining order; and

      (e) The right to present evidence and cross-examine witnesses at any hearing.

      (3) Notice provided under subsection (1) of this section must be similar to the notice provided to the respondent and must contain an objection form that the elderly person or person with a disability may complete and mail to the court.

      (4) Notice under this section must be personally served on the elderly person or person with a disability. The date of personal service must be not later than 72 hours after the court issues a restraining order under ORS 124.020.

      (5) Proof of service under this section must be filed in the proceeding before the court holds a hearing under ORS 124.015. [2003 c.257 §7; 2003 c.257 §7a; 2005 c.671 §10; 2007 c.70 §28; 2015 c.119 §6]

 

      124.025 Removal of personal effects; accompanying peace officer; limitation on liability. (1) A peace officer who accompanies a party removing essential personal effects pursuant to an order issued under ORS 124.020 shall remain for up to 20 minutes and may temporarily interrupt the removal of property at any time. Nothing in this subsection shall affect a peace officer’s duty to arrest under ORS 133.055 and 133.310.

      (2) The party removing essential personal effects from the residence pursuant to an order issued under ORS 124.020 is entitled to be accompanied by a peace officer on one occasion only.

      (3) A peace officer who accompanies a party removing essential personal effects pursuant to an order issued under ORS 124.020 shall have immunity from any liability, civil or criminal, for any actions of the party committed during the removal of essential personal effects. [1995 c.666 §7]

 

      124.030 Proof of service of restraining order to be delivered to sheriff; entry in LEDS; expiration of restraining order; release of respondent pending hearing. (1) Whenever a restraining order, as authorized by ORS 124.015 or 124.020, that includes a security amount and an expiration date pursuant to ORS 124.015 and 124.020 and this section, is issued and the person to be restrained has actual notice of the order, the clerk of the court or any other person serving the petition and order shall immediately deliver to a county sheriff a true copy of proof of service, on which it is stated that personal service of the petition and order was served on the respondent, and copies of the petition and order. Proof of service may be made by affidavit or by declaration under penalty of perjury. If an order entered by the court recites that the respondent appeared in person before the court, the necessity for service of the order and proof of service is waived. Upon receipt of a copy of the order and notice of completion of any required service by a member of a law enforcement agency, the county sheriff shall immediately enter the order into the Law Enforcement Data System maintained by the Department of State Police. If the petition and order were served on the respondent by a person other than a member of a law enforcement agency, the county sheriff shall enter the order into the Law Enforcement Data System upon receipt of a true copy of proof of service. Entry into the Law Enforcement Data System constitutes notice to all law enforcement agencies of the existence of the order. Law enforcement agencies shall establish procedures adequate to ensure that an officer at the scene of an alleged violation of the order may be informed of the existence and terms of the order. The order is fully enforceable in any county in this state.

      (2)(a) A restraining order shall remain in effect until the order expires or is terminated by court order.

      (b) When a restraining order has been entered under ORS 124.020, the restraining order shall not be terminated upon a motion for dismissal by the petitioner or guardian petitioner unless the motion is notarized.

      (3) In any situation where a restraining order described in subsection (1) of this section is terminated before the expiration date, the clerk of the court shall immediately deliver a copy of the termination order to the county sheriff with whom the original order was filed. Upon receipt of the termination order, the county sheriff shall promptly remove the original order from the Law Enforcement Data System.

      (4) Pending a contempt hearing for an alleged violation of a restraining order issued under ORS 124.015 or 124.020, a person arrested and taken into custody pursuant to ORS 133.310 may be released as provided in ORS 135.230 to 135.290. Whenever a restraining order is issued under ORS 124.015 or 124.020, the issuing court shall set a security amount for the violation of the order. [1995 c.666 §8; 2003 c.257 §5; 2007 c.255 §10; 2011 c.269 §5; 2015 c.121 §20]

 

      124.035 Renewal of restraining order. For good cause shown, the court may renew an order entered under ORS 124.015 or 124.020, and the court may do so regardless of whether there has been a further act of abuse. [1995 c.666 §9]

 

      124.040 Short title. ORS 124.005 to 124.040 shall be known and may be cited as the “Elderly Persons and Persons With Disabilities Abuse Prevention Act.” [1995 c.666 §2; 1999 c.738 §4; 2003 c.264 §4]

 

REPORTING OF ABUSE

 

      124.050 Definitions for ORS 124.050 to 124.095. As used in ORS 124.050 to 124.095:

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

      (a) Any physical injury to an elderly person caused by other than accidental means, or which appears to be at variance with the explanation given of the injury.

      (b) Neglect.

      (c) Abandonment, including desertion or willful forsaking of an elderly person or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.

      (d) Willful infliction of physical pain or injury upon an elderly person.

      (e) An act that constitutes a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465, 163.467 or 163.525.

      (f) Verbal abuse.

      (g) Financial exploitation.

      (h) Sexual abuse.

      (i) Involuntary seclusion of an elderly person for the convenience of a caregiver or to discipline the person.

      (j) A wrongful use of a physical or chemical restraint of an elderly person, excluding an act of restraint prescribed by a physician licensed under ORS chapter 677 and any treatment activities that are consistent with an approved treatment plan or in connection with a court order.

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

      (3) “Facility” means:

      (a) A long term care facility as that term is defined in ORS 442.015.

      (b) A residential facility as that term is defined in ORS 443.400, including but not limited to an assisted living facility.

      (c) An adult foster home as that term is defined in ORS 443.705.

      (4) “Financial exploitation” means:

      (a) Wrongfully taking the assets, funds or property belonging to or intended for the use of an elderly person or a person with a disability.

      (b) Alarming an elderly person or a person with a disability by conveying a threat to wrongfully take or appropriate money or property of the person if the person would reasonably believe that the threat conveyed would be carried out.

      (c) Misappropriating, misusing or transferring without authorization any money from any account held jointly or singly by an elderly person or a person with a disability.

      (d) Failing to use the income or assets of an elderly person or a person with a disability effectively for the support and maintenance of the person.

      (5) “Intimidation” means compelling or deterring conduct by threat.

      (6) “Law enforcement agency” means:

      (a) Any city or municipal police department.

      (b) Any county sheriff’s office.

      (c) The Oregon State Police.

      (d) Any district attorney.

      (e) A police department established by a university under ORS 352.121 or 353.125.

      (7) “Neglect” means failure to provide basic care or services that are necessary to maintain the health or safety of an elderly person.

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

      (a) ORS 410.040 (7); or

      (b) ORS 410.715.

      (9) “Public or private official” means:

      (a) Physician or physician assistant licensed under ORS chapter 677, naturopathic physician or chiropractor, including any intern or resident.

      (b) Licensed practical nurse, registered nurse, nurse practitioner, nurse’s aide, home health aide or employee of an in-home health service.

      (c) Employee of the Department of Human Services or community developmental disabilities program.

      (d) Employee of the Oregon Health Authority, local health department or community mental health program.

      (e) Peace officer.

      (f) Member of the clergy.

      (g) Regulated social worker.

      (h) Physical, speech or occupational therapist.

      (i) Senior center employee.

      (j) Information and referral or outreach worker.

      (k) Licensed professional counselor or licensed marriage and family therapist.

      (L) Member of the Legislative Assembly.

      (m) Firefighter or emergency medical services provider.

      (n) Psychologist.

      (o) Provider of adult foster care or an employee of the provider.

      (p) Audiologist.

      (q) Speech-language pathologist.

      (r) Attorney.

      (s) Dentist.

      (t) Optometrist.

      (u) Chiropractor.

      (v) Personal support worker, as defined by rule adopted by the Home Care Commission.

      (w) Home care worker, as defined in ORS 410.600.

      (10) “Services” includes but is not limited to the provision of food, clothing, medicine, housing, medical services, assistance with bathing or personal hygiene or any other service essential to the well-being of an elderly person.

      (11)(a) “Sexual abuse” means:

      (A) Sexual contact with an elderly person who does not consent or is considered incapable of consenting to a sexual act under ORS 163.315;

      (B) Verbal or physical harassment of a sexual nature, including but not limited to severe or pervasive exposure to sexually explicit material or language;

      (C) Sexual exploitation;

      (D) Any sexual contact between an employee of a facility or paid caregiver and an elderly person served by the facility or caregiver; or

      (E) Any sexual contact that is achieved through force, trickery, threat or coercion.

      (b) “Sexual abuse” does not mean consensual sexual contact between an elderly person and:

      (A) An employee of a facility who is also the spouse of the elderly person; or

      (B) A paid caregiver.

      (12) “Sexual contact” has the meaning given that term in ORS 163.305.

      (13) “Verbal abuse” means to threaten significant physical or emotional harm to an elderly person or a person with a disability through the use of:

      (a) Derogatory or inappropriate names, insults, verbal assaults, profanity or ridicule; or

      (b) Harassment, coercion, threats, intimidation, humiliation, mental cruelty or inappropriate sexual comments. [Formerly 410.610; 1999 c.463 §6; 2001 c.104 §36; 2005 c.671 §4; 2007 c.70 §29; 2009 c.442 §33; 2009 c.595 §84; 2009 c.708 §1; 2009 c.837 §9; 2011 c.36 §3; 2011 c.506 §5; 2011 c.703 §23; 2013 c.129 §23; 2013 c.180 §7; 2013 c.352 §5; 2014 c.104 §9; 2015 c.179 §2; 2015 c.416 §1; 2015 c.736 §49]

 

      124.055 Policy. The Legislative Assembly finds that for the purpose of preventing abuse, safeguarding and enhancing the welfare of elderly persons, it is necessary and in the public interest to require mandatory reports and investigations of allegedly abused elderly persons. [Formerly 410.620]

 

      124.060 Duty of officials to report; exception. Any public or private official having reasonable cause to believe that any person 65 years of age or older with whom the official comes in contact has suffered abuse, or that any person with whom the official comes in contact has abused a person 65 years of age or older, shall report or cause a report to be made in the manner required in ORS 124.065. Nothing contained in ORS 40.225 to 40.295 affects the duty to report imposed by this section, except that a psychiatrist, psychologist, member of the clergy or attorney is not required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295. An attorney is not required to make a report under this section by reason of information communicated to the attorney in the course of representing a client if disclosure of the information would be detrimental to the client. [Formerly 410.630; 2009 c.708 §2; 2013 c.352 §6]

 

      124.065 Method of reporting; content; notice to law enforcement agency and to department. (1) When a report is required under ORS 124.060, an oral report shall be made immediately by telephone or otherwise to the local office of the Department of Human Services or to a law enforcement agency within the county where the person making the report is at the time of contact. If known, such reports shall contain the names and addresses of the elderly person and any persons responsible for the care of the elderly person, the nature and the extent of the abuse (including any evidence of previous abuse), the explanation given for the abuse and any other information which the person making the report believes might be helpful in establishing the cause of the abuse and the identity of the perpetrator.

      (2) When a report of a possible crime is received by the department under ORS 124.060, the department or the designee of the department shall notify the law enforcement agency having jurisdiction within the county where the report was made. If the department or the designee of the department is unable to gain access to the allegedly abused elderly person, the department or the designee of the department may contact the law enforcement agency for assistance and the agency shall provide assistance.

      (3) If the department or the designee of the department determines that there is reason to believe a crime has been committed, the department or the designee of the department shall immediately notify the law enforcement agency having jurisdiction within the county where the report was made. The law enforcement agency shall confirm to the department or the designee of the department its receipt of the notification.

      (4) When a report is received by a law enforcement agency, the agency shall immediately notify the law enforcement agency having jurisdiction if the receiving agency does not. The receiving agency shall also immediately notify the local office of the department in the county where the report was made. [Formerly 410.640; 2009 c.837 §§10,11]

 

      124.070 Duty to investigate; notice to law enforcement agency and department; written findings; review by district attorney. (1) Upon receipt of the report required under ORS 124.060, the Department of Human Services or the law enforcement agency shall cause an investigation to be commenced promptly to determine the nature and cause of the abuse. The investigation shall include a visit to the named elderly person and communication with those individuals having knowledge of the facts of the particular case. If the alleged abuse occurs in a residential facility, the department shall conduct an investigation regardless of whether the suspected abuser continues to be employed by the facility.

      (2) If the department finds reasonable cause to believe that a crime has occurred, the department shall notify in writing the appropriate law enforcement agency. If the law enforcement agency conducting the investigation finds reasonable cause to believe that abuse has occurred, the agency shall notify the department in writing. Upon completion of the evaluation of each case, the department shall prepare written findings that include recommended action and a determination of whether protective services are needed.

      (3) After receiving notification from the department that there is reasonable cause to believe that a crime has occurred, a law enforcement agency shall notify the department:

      (a) That there will be no criminal investigation, including an explanation of why there will be no criminal investigation;

      (b) That the investigative findings have been given to the district attorney for review; or

      (c) That a criminal investigation will take place.

      (4) If a law enforcement agency gives the findings of the department to the district attorney for review, the district attorney shall notify the department that the district attorney has received the findings and shall inform the department whether the findings have been received for review or for filing charges. A district attorney shall make the determination of whether to file charges within six months of receiving the findings of the department.

      (5) If a district attorney files charges stemming from the findings of the department and the district attorney makes a determination not to proceed to trial, the district attorney shall notify the department of the determination and shall include information explaining the basis for the determination. [Formerly 410.650; 2009 c.837 §§12,13]

 

      124.071 Deadline to complete abuse investigation; exception; written report required. (1) Investigations commenced by the Department of Human Services pursuant to ORS 124.070 must be completed by the department on or before 120 days after receipt of the report of abuse made under ORS 124.060, unless there is an ongoing concurrent criminal investigation, in which case the department may take a reasonable amount of additional time in which to complete the investigation.

      (2) Upon completion of an investigation in accordance with subsection (1) of this section, a written report shall be prepared that includes information as required by rule adopted by the department, including but not limited to the following:

      (a) The date and location of the report of abuse and of the incident of abuse that was reported;

      (b) The dates that the investigation was commenced and completed and by what entity;

      (c) A description of documents and records reviewed during the investigation;

      (d) An identification of any witness statements that were obtained during the investigation; and

      (e) A statement of the factual basis for any findings and a summary of the findings made as a result of the investigation. [2014 c.104 §2]

 

      124.072 Required disclosure of protected health information to law enforcement agency; liability for disclosure. (1) Upon notice by a law enforcement agency that an investigation into abuse is being conducted under ORS 124.070, and without the consent of the named elderly person or of the named elderly person’s caretaker, fiduciary or other legal representative, a health care provider must:

      (a) Permit the law enforcement agency to inspect and copy, or otherwise obtain, protected health information of the named elderly person; and

      (b) Upon request of the law enforcement agency, consult with the agency about the protected health information.

      (2) A health care provider who in good faith discloses protected health information under this section is not civilly or criminally liable under state law for the disclosure.

      (3) For purposes of this section:

      (a) “Health care provider” has the meaning given that term in ORS 192.556.

      (b) “Protected health information” has the meaning given that term in ORS 192.556. [2012 c.70 §6]

 

      124.073 Training for abuse investigators. (1) The Department of Human Services shall:

      (a) Using new or existing materials, develop and implement a training and continuing education curriculum for persons other than law enforcement officers required by law to investigate allegations of abuse under ORS 124.070 or 441.650. The curriculum shall address the areas of training and education necessary to facilitate the skills required to investigate reports of abuse, including, but not limited to, risk assessment, investigatory technique, evidence gathering and report writing.

      (b) Using new or existing materials, develop and implement training for persons that provide care to vulnerable persons to facilitate awareness of the dynamics of abuse, abuse prevention strategies and early detection of abuse.

      (2) For purposes of this section, “vulnerable person” means a person 65 years of age or older. [2012 c.70 §21]

 

      Note: 124.073 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 124 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      124.075 Immunity of person making report in good faith; identity confidential. (1) Anyone participating in good faith in the making of a report of elder abuse and who has reasonable grounds for making the report shall have immunity from any criminal or civil liability that might otherwise be incurred or imposed with respect to the making or content of such report. Any such participant shall have the same immunity with respect to participating in any judicial proceeding resulting from such report.

      (2) The identity of the person making the report shall be treated as confidential information and shall be disclosed only with the consent of that person or by judicial process, or as required to perform the functions under ORS 124.070. [Formerly 410.660; 2005 c.671 §5; 2015 c.179 §5]

 

      124.077 Immunity for disclosure to prospective employer. A person who has personal knowledge that an employee or former employee of the person was found by the Department of Human Services, a law enforcement agency or a court to have committed abuse under ORS 124.005 to 124.040, 124.050 to 124.095 or 124.100 to 124.140, is immune from civil liability for the disclosure to a prospective employer of the employee or former employee of known facts concerning the abuse. [2009 c.837 §14]

 

      Note: 124.077 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 124 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      124.080 Photographing of victim; photograph as record. (1) In carrying out its duties under ORS 124.070 a law enforcement agency or the Department of Human Services may photograph or cause to have photographed any victim who is the subject of the investigation for purposes of preserving evidence of the condition of the victim at the time of the investigation.

      (2) For purposes of ORS 124.090, photographs taken under authority of subsection (1) of this section shall be considered records. [Formerly 410.670]

 

      124.085 Catalog of abuse records; confidentiality. A proper record of complaints made under ORS 124.060 and 124.065 shall be maintained by the Department of Human Services. The department shall prepare reports in writing when investigation has shown that the condition of the elderly person was the result of abuse even if the cause remains unknown. The complaints and investigative reports shall be cataloged under the name of the victim but shall be treated as confidential information subject to ORS 124.090, and shall be disclosed only with the consent of that person or by judicial process. [Formerly 410.680; 2012 c.70 §11]

 

      124.087 Policies and guidelines to plan for development and standardization of certain resources and technologies. The Department of Human Services shall adopt policies and guidelines to plan for the development and standardization of resources and technologies to:

      (1) Create a database, registry or other electronic record of reports of abuse made under ORS 124.060 and 441.640 and investigations of abuse conducted pursuant to ORS 124.070 and 441.650 with information including, but not limited to:

      (a) The date and location of the report of abuse and the incident of abuse that was reported;

      (b) If applicable, the date that the initial status report required under ORS 441.650 was completed and a summary of the information required to be contained in the initial status report as set forth in ORS 441.650;

      (c) The date that the investigation was commenced and by what entity;

      (d) Any actions taken during the course of the investigation, including but not limited to the actions required under ORS 441.650 (6);

      (e) The date that a written report, including but not limited to the written report required under ORS 124.071 and 441.650 (6), was completed and a summary of the information contained in the written report; and

      (f) The disposition of the report of abuse or the investigation of the report, including but not limited to the date and time that the investigation, if applicable, was completed and the date that a letter of determination under ORS 441.677 was prepared;

      (2) Standardize procedures and protocols for making and responding to reports of abuse made under ORS 124.060 and 441.640;

      (3) Standardize procedures and protocols for investigations of reports of abuse conducted pursuant to ORS 124.070 and 441.650; and

      (4) Promote and coordinate communication and information sharing with law enforcement agencies regarding reports and investigations of abuse under ORS 124.060, 124.070, 441.640 and 441.650. [2014 c.104 §4]

 

      Note: 124.087 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 124 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      124.090 Confidentiality of records; exceptions. (1) Notwithstanding the provisions of ORS 192.410 to 192.505, the names of the public or private official or any other person who made the complaint, the witnesses and the elderly persons, and the reports and records compiled under the provisions of ORS 124.050 to 124.095, are confidential and are not accessible for public inspection.

      (2) Notwithstanding subsection (1) of this section, the Department of Human Services or the department’s designee may, if appropriate, make the names of the witnesses and the elderly persons, and the reports and records compiled under ORS 124.050 to 124.095, available to:

      (a) A law enforcement agency;

      (b) A public agency that licenses or certifies residential facilities or licenses or certifies the persons practicing in the facilities;

      (c) A public agency or private nonprofit agency or organization providing protective services for the elderly person;

      (d) The Long Term Care Ombudsman;

      (e) A public agency that licenses or certifies a person that has abused or is alleged to have abused an elderly person;

      (f) A court pursuant to a court order or as provided in ORS 125.012; and

      (g) An administrative law judge in an administrative proceeding when necessary to provide protective services as defined in ORS 410.040 to an elderly person, when in the best interests of the elderly person or when necessary to investigate, prevent or treat abuse of an elderly person.

      (3) Information made available under subsection (2) of this section, and the recipient of the information, are otherwise subject to the confidentiality provisions of ORS 124.050 to 124.095. [Formerly 410.690; 2001 c.900 §21; 2012 c.70 §12]

 

      124.095 Spiritual treatment not abuse. An elderly person who in good faith is voluntarily under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for this reason alone, not be considered subjected to abuse by reason of neglect under ORS 124.050 to 124.095. [Formerly 410.700]

 

CIVIL ACTION FOR ABUSE OF VULNERABLE PERSON

 

      124.100 Definitions for ORS 124.100 to 124.140; action authorized; relief; qualifications for bringing action; service on Attorney General. (1) As used in ORS 124.100 to 124.140:

      (a) “Designee” means a person designated by the Department of Human Services to conduct investigations under ORS 430.731 in a county with a population of 650,000 or more persons.

      (b) “Elderly person” means a person 65 years of age or older.

      (c) “Financially incapable” has the meaning given that term in ORS 125.005.

      (d) “Incapacitated” has the meaning given that term in ORS 125.005.

      (e) “Person with a disability” means a person with a physical or mental impairment that:

      (A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and

      (B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.

      (f) “Type B area agency” means a type B area agency, as defined in ORS 410.040, that is designated to operate in a geographic area with a population of 650,000 or more persons.

      (g) “Vulnerable person” means:

      (A) An elderly person;

      (B) A financially incapable person;

      (C) An incapacitated person; or

      (D) A person with a disability who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the person’s physical or mental impairment.

      (2) A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse. The court shall award the following to a plaintiff who prevails in an action under this section:

      (a) An amount equal to three times all economic damages, as defined in ORS 31.710, resulting from the physical or financial abuse, or $500, whichever amount is greater.

      (b) An amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical or financial abuse.

      (c) Reasonable attorney fees incurred by the plaintiff.

      (d) Reasonable fees for the services of a conservator or guardian ad litem incurred by reason of the litigation of a claim brought under this section.

      (3) An action may be brought under this section only by:

      (a) A vulnerable person;

      (b) A guardian, conservator or attorney-in-fact for a vulnerable person;

      (c) A personal representative for the estate of a decedent who was a vulnerable person at the time the cause of action arose; or

      (d) A trustee for a trust on behalf of the trustor or the spouse of the trustor who is a vulnerable person.

      (4) An action may be brought under this section only for physical abuse described in ORS 124.105 or for financial abuse described in ORS 124.110.

      (5) An action may be brought under this section against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.

      (6) A person commencing an action under this section must serve a copy of the complaint on the Attorney General within 30 days after the action is commenced. [1995 c.671 §1; 1997 c.249 §41; 1999 c.305 §1; 2001 c.843 §3; 2003 c.211 §1; 2005 c.87 §1; 2005 c.386 §1a; 2007 c.70 §30; 2015 c.568 §2]

 

      Note: The amendments to 124.100 by section 5, chapter 568, Oregon Laws 2015, become operative July 1, 2018. See section 6, chapter 568, Oregon Laws 2015. The text that is operative on and after July 1, 2018, is set forth for the user’s convenience.

      124.100. (1) As used in ORS 124.100 to 124.140:

      (a) “Elderly person” means a person 65 years of age or older.

      (b) “Financially incapable” has the meaning given that term in ORS 125.005.

      (c) “Incapacitated” has the meaning given that term in ORS 125.005.

      (d) “Person with a disability” means a person with a physical or mental impairment that:

      (A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and

      (B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.

      (e) “Vulnerable person” means:

      (A) An elderly person;

      (B) A financially incapable person;

      (C) An incapacitated person; or

      (D) A person with a disability who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the person’s physical or mental impairment.

      (2) A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse. The court shall award the following to a plaintiff who prevails in an action under this section:

      (a) An amount equal to three times all economic damages, as defined in ORS 31.710, resulting from the physical or financial abuse, or $500, whichever amount is greater.

      (b) An amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical or financial abuse.

      (c) Reasonable attorney fees incurred by the plaintiff.

      (d) Reasonable fees for the services of a conservator or guardian ad litem incurred by reason of the litigation of a claim brought under this section.

      (3) An action may be brought under this section only by:

      (a) A vulnerable person;

      (b) A guardian, conservator or attorney-in-fact for a vulnerable person;

      (c) A personal representative for the estate of a decedent who was a vulnerable person at the time the cause of action arose; or

      (d) A trustee for a trust on behalf of the trustor or the spouse of the trustor who is a vulnerable person.

      (4) An action may be brought under this section only for physical abuse described in ORS 124.105 or for financial abuse described in ORS 124.110.

      (5) An action may be brought under this section against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.

      (6) A person commencing an action under this section must serve a copy of the complaint on the Attorney General within 30 days after the action is commenced.

 

      124.105 Physical abuse subject to action. (1) An action may be brought under ORS 124.100 for physical abuse if the defendant engaged in conduct against a vulnerable person that would constitute any of the following:

      (a) Assault, under the provisions of ORS 163.160, 163.165, 163.175 and 163.185.

      (b) Menacing, under the provisions of ORS 163.190.

      (c) Recklessly endangering another person, under the provisions of ORS 163.195.

      (d) Criminal mistreatment, under the provisions of ORS 163.200 and 163.205.

      (e) Rape, under the provisions of ORS 163.355, 163.365 and 163.375.

      (f) Sodomy, under the provisions of ORS 163.385, 163.395 and 163.405.

      (g) Unlawful sexual penetration, under the provisions of ORS 163.408 and 163.411.

      (h) Sexual abuse, under the provisions of ORS 163.415, 163.425 and 163.427.

      (i) Strangulation, under ORS 163.187.

      (2) An action may be brought under ORS 124.100 for physical abuse if the defendant used any unreasonable physical constraint on the vulnerable person or subjected the vulnerable person to prolonged or continued deprivation of food or water.

      (3) An action may be brought under ORS 124.100 for physical abuse if the defendant used a physical or chemical restraint, or psychotropic medication on the vulnerable person without an order from a physician licensed in the State of Oregon or under any of the following conditions:

      (a) For the purpose of punishing the vulnerable person.

      (b) For any purpose not consistent with the purposes authorized by a physician.

      (c) For a period significantly beyond that for which the restraint or medication was authorized by a physician. [1995 c.671 §2; 2003 c.577 §4; 2005 c.386 §2]

 

      124.110 Financial abuse subject to action. (1) An action may be brought under ORS 124.100 for financial abuse in the following circumstances:

      (a) When a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person.

      (b) When a vulnerable person requests that another person transfer to the vulnerable person any money or property that the other person holds or controls and that belongs to or is held in express trust, constructive trust or resulting trust for the vulnerable person, and the other person, without good cause, either continues to hold the money or property or fails to take reasonable steps to make the money or property readily available to the vulnerable person when:

      (A) The ownership or control of the money or property was acquired in whole or in part by the other person or someone acting in concert with the other person from the vulnerable person; and

      (B) The other person acts in bad faith, or knew or should have known of the right of the vulnerable person to have the money or property transferred as requested or otherwise made available to the vulnerable person.

      (c) When a person has at any time engaged in conduct constituting a violation of a restraining order regarding sweepstakes that was issued under ORS 124.020.

      (2) A transfer of money or property that is made for the purpose of qualifying a vulnerable person for Medicaid benefits or for any other state or federal assistance program, or the holding and exercise of control over money or property after such a transfer, does not constitute a wrongful taking or appropriation under subsection (1)(a) of this section or the holding of money or property without good cause for the purposes of subsection (1)(b) of this section. [1995 c.671 §3; 1999 c.305 §2; 1999 c.875 §8; 2005 c.386 §3]

 

      124.115 Persons not subject to action. (1) Except as provided by subsection (2) of this section, an action under ORS 124.100 may not be brought against:

      (a) Financial institutions, as defined by ORS 706.008;

      (b) A health care facility, as defined in ORS 442.015;

      (c) Any facility licensed or registered under ORS chapter 443; or

      (d) Broker-dealers licensed under ORS 59.005 to 59.451.

      (2) An action may be brought under ORS 124.100 against a person listed in subsection (1) of this section if:

      (a) The person is convicted of one of the crimes specified in ORS 124.105 (1); or

      (b) The person engages in conduct constituting financial abuse as described in ORS 124.110, and the person is convicted of a crime by reason of the conduct. [1995 c.671 §3a; 1997 c.631 §408; 1999 c.305 §3]

 

      124.120 Relief available. The court may restrain and remedy the conduct described in ORS 124.105 and 124.110 by issuing appropriate orders including but not limited to:

      (1) A judgment for the remedies provided by ORS 124.100.

      (2) Restraining orders, temporary injunctions or other actions as the court deems proper, including the acceptance of satisfactory performance bonds, the creation of receiverships, the appointment of qualified receivers and the enforcement of constructive trusts.

      (3) Ordering any person to divest direct or indirect interest or contact with any person or enterprise.

      (4) Imposing reasonable restrictions, including permanent injunctions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor or conduct to the extent permitted by the Constitution of the United States and this state. [1995 c.671 §4]

 

      124.125 Action by Attorney General, Department of Human Services, other agency or district attorney; investigative demands. (1) The Attorney General, the Department of Human Services, a type B area agency, a designee or a district attorney may bring an action against a person who engages in conduct described in ORS 124.105 and 124.110. In addition to remedies otherwise provided in ORS 124.100 to 124.140, upon prevailing in the action, the court shall award to the Attorney General, Department of Human Services, type B area agency, designee or district attorney costs of investigation and penalties. Penalties awarded under this section may not exceed $25,000 per occurrence.

      (2) The Attorney General may intervene in a civil action brought under ORS 124.100 if the Attorney General certifies that, in the opinion of the Attorney General, the action is of general public importance. In the action, the state is entitled to the same relief as if the Attorney General instituted the action under the provisions of this section.

      (3) When it appears that a person is engaging in conduct described in ORS 124.105 or 124.110, the Attorney General, a district attorney, an attorney representing a type B area agency or a designee may execute in writing and cause to be served an investigative demand upon a person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation. The investigative demand shall require the person, under oath or otherwise, to appear and testify, to answer written interrogatories or to produce relevant documentary material or physical evidence for examination, at a reasonable time and place as stated in the investigative demand.

      (4) At any time before the return date specified in an investigative demand, or within 20 days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause, including a request for privileged material, may be filed in the appropriate court.

      (5) Service of an investigative demand under subsection (3) of this section shall be made personally within this state. If personal service within this state cannot be made, substituted service of the investigative demand may be made by any of the following methods:

      (a) By personal service outside this state;

      (b) By registered or certified mail to the last-known place of business, residence or abode within or outside this state of the person for whom the investigative demand is intended;

      (c) In the manner provided for service of summons in an action or suit; or

      (d) In accordance with the direction of a court.

      (6) If a person, after being served with an investigative demand under subsection (3) of this section, fails or refuses to obey an investigative demand issued by the Attorney General, a district attorney, an attorney representing a type B area agency or a designee, the Attorney General, district attorney, attorney representing a type B area agency or designee may, after notice to an appropriate court and after a hearing, request an order:

      (a) Granting injunctive relief to restrain the person from engaging in conduct that is involved in the alleged or suspected violation; or

      (b) Granting other relief as may be required, until the person obeys the investigative demand.

      (7) Disobedience of a final order of a court under subsection (6) of this section shall be punished as a contempt of court.

      (8) ORS 192.583 to 192.607 apply to the disclosure of financial records by a financial institution pursuant to the service of an investigative demand under subsection (3) of this section. [1995 c.671 §5; 2003 c.265 §1; 2015 c.83 §1; 2015 c.568 §1]

 

      Note: Section 3, chapter 568, Oregon Laws 2015, provides:

      Sec. 3. No later than December 31, 2017, type B area agencies and designees, as defined in ORS 124.100, shall report to the Legislative Assembly, in the manner provided in ORS 192.245, on the actions brought under the authority granted to type B area agencies and designees by the amendments to ORS 124.125 by section 1 of this 2015 Act. The report must include the number of actions filed, including the number of actions filed on behalf of elderly individuals and the number of actions filed on behalf of individuals with intellectual or developmental disabilities, and the outcomes of the actions. [2015 c.568 §3]

 

      Note: The amendments to 124.125 by section 4, chapter 568, Oregon Laws 2015, become operative July 1, 2018. See section 6, chapter 568, Oregon Laws 2015. The text that is operative on and after July 1, 2018, is set forth for the user’s convenience.

      124.125. (1) The Attorney General, the Department of Human Services or a district attorney may bring an action against a person who engages in conduct described in ORS 124.105 and 124.110. In addition to remedies otherwise provided in ORS 124.100 to 124.140, upon prevailing in the action, the court shall award to the Attorney General, Department of Human Services or district attorney costs of investigation and penalties. Penalties awarded under this section may not exceed $25,000 per occurrence.

      (2) The Attorney General may intervene in a civil action brought under ORS 124.100 if the Attorney General certifies that, in the opinion of the Attorney General, the action is of general public importance. In the action, the state is entitled to the same relief as if the Attorney General instituted the action under the provisions of this section.

      (3) When it appears that a person is engaging in conduct described in ORS 124.105 or 124.110, the Attorney General or a district attorney may execute in writing and cause to be served an investigative demand upon a person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation. The investigative demand shall require the person, under oath or otherwise, to appear and testify, to answer written interrogatories or to produce relevant documentary material or physical evidence for examination, at a reasonable time and place as stated in the investigative demand.

      (4) At any time before the return date specified in an investigative demand, or within 20 days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause, including a request for privileged material, may be filed in the appropriate court.

      (5) Service of an investigative demand under subsection (3) of this section shall be made personally within this state. If personal service within this state cannot be made, substituted service of the investigative demand may be made by any of the following methods:

      (a) By personal service outside this state;

      (b) By registered or certified mail to the last-known place of business, residence or abode within or outside this state of the person for whom the investigative demand is intended;

      (c) In the manner provided for service of summons in an action or suit; or

      (d) In accordance with the direction of a court.

      (6) If a person, after being served with an investigative demand under subsection (3) of this section, fails or refuses to obey an investigative demand issued by the Attorney General or a district attorney, the Attorney General or district attorney may, after notice to an appropriate court and after a hearing, request an order:

      (a) Granting injunctive relief to restrain the person from engaging in conduct that is involved in the alleged or suspected violation; or

      (b) Granting other relief as may be required, until the person obeys the investigative demand.

      (7) Disobedience of a final order of a court under subsection (6) of this section shall be punished as a contempt of court.

      (8) ORS 192.583 to 192.607 apply to the disclosure of financial records by a financial institution pursuant to the service of an investigative demand under subsection (3) of this section.

 

      124.130 Statute of limitation. An action under ORS 124.100 to 124.140 must be commenced within seven years after discovery of the conduct described in ORS 124.105 and 124.110 that gives rise to a cause of action under ORS 124.100 to 124.140. [1995 c.671 §6]

 

      124.135 Remedies not exclusive. The remedies provided by ORS 124.100 to 124.140 are in addition to any other remedy, civil or criminal, that may be available under any other provision of law. [1995 c.671 §7]

 

      124.140 Estoppel based on criminal conviction. A defendant convicted in any criminal proceeding of conduct that gives rise to a cause of action under ORS 124.100, whether the conviction results from a plea or verdict, is estopped from denying the conduct for purposes of an action under ORS 124.100 to 124.140. [1995 c.671 §8]

 

PENALTIES

 

      124.990 Criminal penalty. A person who violates ORS 124.060 commits a Class A violation. [Formerly 410.990]

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