Oregon Statutes 125.055 – Petitions in protective proceedings; filing fee
(1)(a) A petition in a protective proceeding that seeks the appointment of a fiduciary must designate the type of fiduciary that the petitioner seeks to have appointed. If the petition does not request the appointment of a fiduciary, or if the petition requests both the appointment of a fiduciary and some other protective order, the petition must contain a statement of the nature of the protective order requested. The caption of the petition must reflect the type of fiduciary whose appointment is requested or, if the appointment of a fiduciary is not requested, the nature of the protective order requested. An original and duplicate copy of the petition must be filed with the court.
Terms Used In Oregon Statutes 125.055
- Attorney-in-fact: A person who, acting as an agent, is given written authorization by another person to transact business for him (her) out of court.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Conservator: means a person appointed as a conservator under the provisions of this chapter. See Oregon Statutes 125.005
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means a guardian or conservator appointed under the provisions of this chapter or any other person appointed by a court to assume duties with respect to a protected person under the provisions of this chapter. See Oregon Statutes 125.005
- Financially incapable: means a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. See Oregon Statutes 125.005
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: means a person appointed as a guardian under the provisions of this chapter. See Oregon Statutes 125.005
- Incapacitated: means a condition in which a person's ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person's physical health or safety. See Oregon Statutes 125.005
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Minor: means any person who has not attained 18 years of age. See Oregon Statutes 125.005
- Person: includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. See Oregon Statutes 174.100
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Protected person: means a person for whom a protective order has been entered. See Oregon Statutes 125.005
- Protective order: means an order of a court appointing a fiduciary or any other order of the court entered for the purpose of protecting the person or estate of a respondent or protected person. See Oregon Statutes 125.005
- Protective proceeding: means a proceeding under this chapter. See Oregon Statutes 125.005
- Respondent: means a person for whom entry of a protective order is sought in a petition filed under ORS § 125. See Oregon Statutes 125.005
- Statute: A law passed by a legislature.
- Trustee: A person or institution holding and administering property in trust.
- Visitor: means a person appointed by the court under ORS § 125. See Oregon Statutes 125.005
- Vulnerable youth: means a person who:
(a) Is at least 18 years of age but has not attained 21 years of age;
(b) Is eligible for classification under 8 U. See Oregon Statutes 125.005
(b) A single filing fee shall be collected for a petition described in this section regardless of whether the petition requests multiple fiduciaries or protective orders. Notwithstanding ORS § 21.135, 21.145, 21.175, 21.180 and 125.650, the fee shall consist of the highest applicable fee set forth in ORS § 21.135, 21.145 (3), 21.175 or 21.180.
(2) A petition in a protective proceeding must contain the following information to the extent that the petitioner is aware of the information or to the extent that the petitioner is able to acquire the information with reasonable effort:
(a) The name, age, residence address and current location of the respondent.
(b) The interest of the petitioner.
(c) The name, age and address of the petitioner and any person nominated as fiduciary in the petition and the relationship of the person nominated to the respondent.
(d) A statement as to whether the person nominated as fiduciary:
(A) Has been convicted of a crime;
(B) Has filed for or received protection under the bankruptcy laws;
(C) Has caused any loss resulting in a surcharge under ORS § 125.025 (3)(e) or a similar statute of another jurisdiction;
(D) Has been removed as a fiduciary under ORS § 125.225; or
(E) Has had a license revoked or canceled that was required by the laws of any state for the practice of a profession or occupation.
(e) If an event listed in paragraph (d) of this subsection has occurred, a statement of the circumstances surrounding the event.
(f) If the person nominated as fiduciary is not the petitioner, a statement indicating that the person nominated is willing and able to serve.
(g) The name and address of any fiduciary that has been appointed for the respondent by a court of any state, any trustee for a trust established by or for the respondent, any person appointed as a health care representative under the provisions of ORS § 127.505 to 127.660 and any person acting as attorney-in-fact for the respondent under a power of attorney.
(h) The name and address of the respondent’s treating physician and any other person who is providing care to the respondent.
(i) The factual information that:
(A) Except as provided in subparagraph (B) of this paragraph, supports the request for the appointment of a fiduciary or entry of other protective order, less restrictive alternatives to the appointment of a fiduciary that have been considered and why the alternatives are inadequate and the names and addresses of all persons who have information that would support a finding that an adult respondent is incapacitated or financially incapable.
(B) If the petition seeks appointment of a guardian for a vulnerable youth, supports a finding that the proposed protected person is a vulnerable youth.
(j) A statement that indicates whether the person nominated as fiduciary intends to place the respondent in a mental health treatment facility, a nursing home or other residential facility.
(k) A general description of the estate of the respondent and the respondent’s sources of income and the amount of that income.
(L) A statement indicating whether the person nominated as fiduciary is a public or private agency or organization that provides services to the respondent or an employee of a public or private agency or organization that provides services to the respondent.
(m) A statement that indicates whether the petitioner is petitioning for plenary authority or specified limited authority for the person nominated as fiduciary.
(3) In addition to the requirements of subsection (2) of this section:
(a) If a petition seeks appointment of a guardian, the petition must contain a statement on whether the guardian will exercise any control over the estate of the respondent. If the guardian will exercise any control over the estate of the respondent, the petition must contain a statement of the monthly income of the respondent, the sources of the respondent’s income, and the amount of any moneys that the guardian will be holding for the respondent at the time of the appointment.
(b) Except as provided in paragraph (c) of this subsection, if the petition seeks the appointment of a guardian for an adult respondent, of a guardian for a minor respondent who is more than 16 years of age, in cases where the court determines there is the likelihood that a petition seeking appointment of a guardian for the respondent as an adult will be filed before the date that the respondent attains majority, in accordance with subsection (6)(a) of this section, or as an adult, or of a temporary fiduciary who will exercise the powers of a guardian for an adult respondent, the petition must contain a statement notifying the court that a visitor must be appointed.
(c) If the petition seeks appointment of a guardian for a vulnerable youth, the petition must include:
(A) A statement that the court in its discretion may appoint a visitor; and
(B) Except as provided in subsection (6)(b) of this section, a declaration signed by the vulnerable youth consenting to the appointment of the proposed guardian.
(4) In addition to the requirements of subsection (2) of this section, if a petition seeks appointment of a conservator or a temporary fiduciary who will exercise the powers of a conservator or if a petition seeks a protective order relating to the estate of the respondent, the petition must contain the petitioner’s estimate of the value of the estate.
(5) A petitioner may join parties in a petition in the manner provided by ORCP 28 for the joining of defendants.
(6)(a) A parent or guardian of a minor may file a petition that seeks the appointment of a guardian for the minor as an adult, to become effective on the date that the minor attains majority, at any time within 90 days before the date that the minor attains majority or at any other time determined by the court to be necessary and appropriate to ensure the ongoing protection, safety and welfare of the minor upon attaining majority.
(b) If a petition for the appointment of a guardian for a vulnerable youth is filed when the respondent is a minor, the declaration of consent to appointment required under subsection (3)(c) of this section must be filed no later than 10 days after the respondent attains the age of majority.
(7) The court shall review a petition seeking appointment of a guardian and shall dismiss the proceeding without prejudice, or require that the petition be amended, if the court determines that the petition does not meet the requirements of this section. [1995 c.664 § 7; 1997 c.717 § 4; 2003 c.227 § 3; 2013 c.71 § 1; 2015 c.176 § 2; 2017 c.391 § 1; 2018 c.59 § 2; 2021 c.399 § 3; 2022 c.68 § 4]