Obtaining an emergency guardianship or conservatorship in Oregon

In a previous post I set out the time periods for getting a guardianship or conservatorship in Oregon. Sometimes, however, emergencies arise. The elder may be in physical danger or money may be lost. In these cases the family may want to get help from the courts on an emergency basis. In this post I discuss the time periods for getting an expedited guardianship or conservatorship in Oregon.

The first thing to determine is whether the emergency order is really necessary. One of my local judges recently observed that to get an emergency order the lawyer will have to put all his other work aside and commit himself solely to the emergency case for two or three days. That is expensive for the family. The work should be undertaken only when the result warrants the extra cost.

The law allows a temporary guardian to be appointed on an expedited basis when there is an " immediate and serious danger to the life or health" of the elder and that immediate action is required. Courts interpret this rule differently but no matter what court you are in, you need a strong case that the elder is incapacitated and immediate action is necessary. A temporary order denies the elder several rights as a citizen that we have all come to accept as central to being an American. The courts do not hand out these temporary protective orders lightly.

The law allows a temporary conservator to be appointed when "there is an immediate and serious danger to the estate" of the elder and a conservator could stop the bleeding. In these cases, I want to have strong evidence that the elder's money is currently flying or is about to fly out the door. The evidence comes in the form of the sworn petition signed by a family member and written statements from witnesses with knowledge of the situation.

An emergency temporary guardianship or conservatorship lasts thirty days and can be extended by an additional thirty days. In most cases the endangered elder needs temporary protection and permanent protection. Consequently the petition for the temporary guardian or conservator is prepared along with a petition for a permanent guardian or conservator. That way the waiting periods that apply to the permanent guardianship can be running while the temporary one is in effect.

When the temporary and permanent petition are written and signed, they are both filed with the court along with the required filing fee. If the request is for a guardian, the court may also require payment of a fee for the court visitor to investigate the family. Copies of both petitions, along with all the warnings and explanations that legally must accompany guardianship petitions, are then personally served by a process server on the elder. After being served, the elder has two days to object.

If the elder does not object within the two days, I go to court and attempt to convince the judge that all the underlying legal work is correct and that a temporary guardian or conservator should be appointed. In some counties, I appear in person before a judge along with my client and the court visitor. In other counties, I go alone to the probate clerk with my documents and the visitors report. If I am asking that a conservator be appointed, I bring to this meeting a bond for the estimated amount of money held by the elder. If all goes well the judge agrees that protection is necessary and a temporary guardian or conservator is appointed for thirty days.

I can seldom get a guardianship without giving the elder two days written notice of the petition, but sometimes in conservatorship cases two days notice would allow the bad guys to get away with the money. I explain this to the judge, and if the judge is convinced, I get a conservatorship appointed without notice. I then have two days in which to serve the elder with the papers. By that time, however, I may have been able to freeze the bank account or otherwise protect the money.

If the elder files an objection, a hearing is held within two days. This is not a full hearing, but simply a short hearing to determine whether the temporary protection should continue.

If an emergency temporary guardian or conservator is appointed, she will have the power to protect the elder for thirty days. During that time the objection period for the permanent guardianship or conservatorship will be running. If no objection is filed to that proceeding, I will submit a permanent order while the temporary one is still in effect. This will provide continuous and uninterrupted care for the elder. If I can't get a permanent order in place within thirty days, I can get the temporary order extended for another thirty days.

If at any time after the temporary order is in place, the elder or some other family member files an objection to either the permanent or the temporary, then the next steps will depend on the docketing procedures that apply at the courthouse where the petition was filed. Those procedures are different for every court. As a client you are best served by having a lawyer familiar with the rules in the courthouse where you have filed.

Getting a temporary guardianship or conservatorship is a lot of work. Sometimes, however, the danger is such that it is very much worth it. Families should not attempt to get temporary orders when they are not really needed, but neither should they hesitate when the welfare or the wealth of the elder is truly in danger.

Oregon Office of Adult Abuse Prevention and Investigation (OAAPI)

I attended a legal seminar the other day on representing the victims of elder abuse. The seminar was about the civil and criminal proceedings designed to stem the rising tide of elder abuse. It was attended by the usual suspects: Oregon elder law lawyers, professional fiduciaries, and government employees.

At the conference, Marie Cervantes, gave a presentation on the Office of Adult Abuse Prevention and Investigation (OAAPI). The office was created in 2012 and represents an attempt to coordinate the work of the various government agencies that deal with elder abuse. The OAAPI does not replace your local Adult Protective Services office, but instead attempts to standardize practices across geographic and bureaucratic lines. It also collects statistics that will permit local offices and district attorney's to better know what abuse looks like in the local community.

In addition I learned that Amanda Sue Nadell of the Multnomah County District Attorney's office is taking over the job for prosecuting elder abuse from Chuck Mickley. Chuck will be missed.

New Oregon case affirms treble damages in elder abuse cases.

Under Oregon's elder abuse laws, an abused elder who receives a damages award from a judge or a jury is entitled to have the amount of the award tripled. The law allowing treble damages has been around for a long time but Oregon's elder law lawyers haven't seen many appellate cases construing the statute. A recent case called Herring v. American Medical Response has added some clarity to this murky area of law.

    The facts off the case are lurid. An emergency medical technician who worked for an ambulance company molested a woman, who was conscious but unable to move or speak, while transporting her to the hospital. The technician was convicted of a crime and the woman sued the ambulance company for "permitting" the abuse of an incapacitated person by employing this particular technician. (He had a history of similar activities.)

    A jury awarded the woman $500,000 in general damages for pain, humiliation and suffering. This award was tripled under the Oregon elder abuse statute. The ambulance company appealed on a variety of grounds and the Oregon Court of Appeals took a look at the treble damages provision in Oregon's elder abuse statute.

    The ambulance company first maintained that the statute should not apply because the injured woman was neither over sixty-five nor permanently disabled. The court rejected that argument, pointing out that the definition of incapacity contained in the elder abuse statute covers not only the elder and permanently disabled, but also people who temporarily lack capacity.

    The company next argued that the damages should not be tripled because to do so violated another Oregon law that limits damages for pain and suffering to a maximum of $500,000. The court held that the jury had awarded exactly $500,000 in pain and suffering damages. The tripling of that amount was done by the judge as he was required to do by a separate statute. The extra million dollars was not damages but more in the nature of a fine.

    The company then argued that the extra million that resulted from tripling the jury award constituted punitive damages. Punitive damages are somewhat disfavored in civil courts because as a general rule punishing citizens is left up to the government, not other citizens. Consequently, there are special rules that apply to punitive damages and normally a portion of any punitive damage award goes to the state. The court rejected the idea that a treble damage award should be subject to any of the limitations applied to punitive damages, stating again that the tripling of damages is a civil penalty.

    The jury had decided not to assess punitive damages against the ambulance company. The jury found no evidence that the ambulance company deserved punishment for its negligence in hiring that technician. The legislature, however, had a different view. It passed a law that makes a any person who permits the abuse of a vulnerable person--even if not actually participating in the abuse--subject to a civil fine in the form of treble damages. Unlike punitive damages, the full amount of that tripled damage award is payable to the plaintiff.

    The case is another encouragement for lawyers like me to find a way, if possible, to transform ordinary negligence cases into elder abuse cases. As one elder law attorney wrote recently about this case: "The floodgates are now open."

How long does it take to get a guardianship or conservatorship in Oregon?

I often advise clients not to seek a guardianship or conservatorship until it becomes absolutely necessary. The court process is expensive and cumbersome, so I tell clients that going to court should be the last resort. The result of this advice is that when families finally decide to seek a guardianship they want it quickly. Their first question is how long will it take.

In the courthouse where I practice, guardianships and conservatorships are called protective proceedings. They are called this because they protect vulnerable elders. There are three different procedures for getting protection from the court: the standard, the speedy, and the super speedy. The faster I have to get the protection, the more difficult and expensive the legal procedure is. Most clients opt for the standard and that is what I discuss in this article

The Time Estimates for a Standard Guardianship or Conservatorship

    The first step in obtaining a guardianship or conservatorship is finding and selecting an Oregon elder law attorney.  If you work at it, this should take about four days. Once you have selected an attorney you will need to provide him or her with a lot of information about the elder and his family. It will take you three days to get this information together--usually by filling out a form provided by the lawyer. While you are getting this information, the lawyer has work to do. If you are asking to be appointed a conservator, your lawyer will check and see if the bonding companies will bond you. If you asking that a professional guardian or conservator be appointed, the lawyer will spend time convincing one of them to take your case. All of this should get done in the first week, at which time the lawyer will be ready to write the petition that will be submitted to the court.

    The lawyer might take three business days to write the petition. Then you come in to read it and make corrections. The next day the lawyer can file the case. You will have a case number and are approximately eleven days into the process.

Within a day or so of filing the case the lawyer will have a process server personally hand the disabled elder a copy of the petition and a thick sheaf of documents advising the elder of his right to object and his right to be represented by an attorney. At the same time the lawyer will mail a copy of the petition to the adult children of the elder, the State of Oregon and a few other people. Those people also have the right to object. If anyone objects, all bets are off, the case will be significantly delayed, and the case will have gone beyond what I can write about in this column.

Once the elder is personally served with the petition and the notices have been mailed, you and your lawyer wait for fifteen days for somebody to object. If it is a guardianship the fifteen days is used to obtain and review the report from the court visitor. If the court visitor agrees that the elder needs protection you are on your way. If the court visitor has a problem with what you want to do, there will be a delay while the court looks at the matter more closely. If it is a conservatorship, the attorney will secure the bond. If you are seeking both a guardianship and a conservatorship, you will have to deal with both a visitors report and a bond.  On the sixteenth day after service of the petition on the elder, the attorney may apply to the court for a judgment. We are now at day twenty-seven.

The speed at which a court processes a judgment and issues letters of guardianship or conservatorship varies by county. I will estimate a week as the normal time it takes for the court to do its part. We are now at day thirty-four. It has take slightly more than a month to go from deciding that a protective proceeding is necessary to having a court order in hand.

The schedule I describe is optimal and depends upon both the lawyer and the client attending to their duties promptly. If the elder or any other interested person files an objection the matter will be delayed as the matter is set for hearing or mediation.

Sometimes thirty-four days is too long. In that case the elder law lawyer uses an expedited process to obtain a temporary protective order. A temporary protective order lasts only thirty days but it offers protection for the elder while the lawyer takes the steps to obtain a permanent one the regular way. My next post will examine how long it takes to have a guardian or conservator appointed in an emergency.

More than Oregon Elder Law: An Elders' Pledge

When I was in gerontology school a long time ago, instead of paying attention in class one day, I wrote something I called "The Older Americans' Pledge." Recently a group called the Syracuse Cultural Workers adapted the pledge to apply to all elders, whether American or not, and paired it with the wonderful artwork of Diedre Sherer. The group then produced, posters, note paper, and bookmarks using the pledge. One version of the poster is below:

 

The poster and other products can be purchased here. (I do not receive anything on sales other than the pride of being associated with such a great artist.)

Oregon Elder Law - The role of family gifts in estate administration.

     In my last column I talked about gifts between family members during the time that an elder is depending on family for support and long term care. Today I want to talk about gifts and how they affect the wills, trusts and the administration of estates.

Gifts that undo an estate plan.

     Your estate is the money and property you have on the date of your death. The money goes first to pay your bills and then to the people named in your will or trust. If you are old and sick and rich you may find long-estranged children returning to the fold and new friends willing to share your last days with you. Sometimes they are there out of love. Sometimes they want your money.

     The most common method of defeating the distribution plan contained in a will or a trust is to convince an elder to give away all of her money before she dies. As I wrote in my last post, a gift is complete when the property is handed over, and thereafter the recipient can do whatever she wants with the property given. Most wills give a parent's estate to the children in equal shares. Sometimes there is a child interested in getting more than an equal share. The best way for that child to turn that obnoxious will or trust into scrap paper is to get dad to sign over all his property while he is still alive. If he has nothing left at his death, the will means nothing.

     The traffic in my office, suggests that the last years of a wealthy elder's life is a never-ending parade of relatives jamming papers in front of the elder for signature. Most of these papers transfer money or property from the elder to the person who came up with the paper. They have all sorts of reasons why the elder should sign and why it needs to be done right now. “I need to be on your account so I can pay your medical expenses.” “If you don't put me on the house, you will go to probate and the government will get all your money.” “If you don't give me this money now you will have to pay taxes on it.” The creativity of these folks is quite astounding, but none of the schemes benefit anybody but the person who receives the property. No matter how sick you are, there is no good reason for giving away your money because a relative or your hairdresser thinks it's a good idea. If these people really cared about you they would be offering to pay the cost of a visit to a competent estate planning lawyer.

     Deathbed gifts often lead to litigation in which the people named in the will or trust attempt to recover what was given away. These cases employ a lot of probate lawyers. The cases are nasty and expensive, and no matter who wins, the lawyers get a big chunk of the estate.

Gifts and Sibling Tension.

Gifts that Complicate Estate Administration

     Let's assume you died without giving away everything you own. Gifts are still going to play a role what happens.

     Whether you like it or not, your children are going to treat the administration of your estate—the distribution of your money and belongings—as some sort of final reckoning of everything you did for them and everything they did for you. Death is time to balance the books and settle accounts for everything that happened while you were alive.

     A lot of families who end up in my office have one member who needed more help through life than did the others. Sometimes the help was necessary because of an obvious physical or mental illness. The healthy siblings in these cases are usually understanding. Other times the disability is addiction, irresponsibility or congenital laziness, and the children who did not get the extra help are not inclined to be as forgiving. They see the recipient of lifetime gifts as having a balance on the books that, upon death, needs to be taken into account when it comes to passing out the inheritance. The recipient of the parental largess, who is often still broke and in need, doesn't see it that way.

     Similarly, the child who has selflessly given up time and career opportunities to provide care for a parent, sees the administration of the estate as a time to be financially recognized for the sacrifice he made while the other children pursued their personal aims. Generous and giving people often want their self-sacrifice to be rewarded and there is no better way to do that than when dividing father's estate.

     Wills and trusts, however, seldom take these lifetime gifts into account. The estate is divided equally between the children. The child who has lived off his parents for decades gets no deduction for the gifts he received, and the one who toiled to provide care gets no credit for his sacrifice.

Thwarted in their desire for a final account that acknowledges the gifts given by the elder and the gifts given by the children, the children focus their frustration on what seems to outsiders as something arbitrary. Sometimes it is a bank account. Sometimes it is a lamp. Whatever it is, it is a symbol for their complaints against each other and their resentments against the dead elder. 

 

     As I wrote in my first post on gifts, mutual gifting is the way we take care of the those family members who need help. Sometimes it is the older members helping out the younger. Sometimes it is the younger members helping the elders. But don't be fooled. Gifts have long and lasting effects. No matter what your age, give with care and receive with caution. A gift is without expectation of repayment. It is not, however, without consequences.

      There is an adage that the question is not whether to give, but when and how. Put as much thought into your gifts as you do your estate plan. Your will or trust, your beneficiary designations, and the gifts you give should form a coherent whole. Each piece should compliment the others and advance the goal of leaving everyone in the family better off. You cannot eliminate the possibility of your funeral being the scene of rancor and litigation, but by thinking carefully about the gifts you give and receive you can significantly reduce the chances.

The role of family gifts in providing elder care.

Most elder care is provided by families. Families use the same methods for providing care for elders that they use to provide care for any other family member in need. Whether it is a child with a disability, a brother with an addiction, or an elder with declining cognitive skills, families employ an informal system based upon gifts. Gifts, however, are not as simple as they might seem.

Family members whose earning ability is robust give to those who have less. The recipients may be young adults who are just getting started in life, middle age siblings who have failed to thrive economically, or elders who need help managing their later years. These exchanges can continue for a lifetime. I am sixty-one and, although I do not lack for much of anything, my parents still send me money.

The gift from children to elderly parents usually comes in the form of care. Our children take over the driving, the money management, and sometimes provide hands-on help with the activities of daily living. Within the family system the gift of care repays the gifts the elders have made to the children. This system of reciprocal gifts becomes an integral part of the way family members interact with and support each other. 

Care of family members by the informal exchange of gifts drives lawyers crazy. Only recently have I finally surrendered and accepted the fact that no matter what the law says this system of reciprocal giving will always be the primary way in which families manage care for each other.

In law school lawyers study gifts only briefly. We know that for a gift to be complete there must be intent to give and delivery of the property being given. The transaction is then complete. The recipient has full ownership of the property given, and the giver has no more claim on it. Gifts cannot have strings. If they do, they are not gifts. They may be contracts, or trusts or God knows what, but they are not gifts.

Gifts are not taxable to the recipient. If you receive money as a gift, it is not income. Thus, you pay no income tax on it. If you are very wealthy there may be a tax on the giver, but for anyone likely to die with less than five million dollars that is not an issue.

(If you are rich enough to pay taxes on the gifts you give, you can easily afford a good tax lawyer for individual advice. You should skip this article and hire one.)

The problem with the informal exchange of gifts for elder care is that the government hates it. Most people understand that you cannot give away all your money and then expect the government to pay for your long term care. People intuitively understand and agree with that concept even if they don't know the details of the rule.

(The rule in a nutshell is that large gifts made within five years of a Medicaid application will result in a penalty period in which the giver is disqualified from receiving long term care coverage.)

The Medicaid rule, designed to ward off the perceived threat of millionaires on Medicaid, fails to acknowledge the real life role of gifts in family dynamics. The hard work of elder care is a gift of services from the child to the parent, services that the elder would otherwise have to pay for. The gift of money to the child is reciprocal, an act of gratitude for the care given. Neither gift has formal strings attached, but one leads naturally to the other.

The other legal presumption that comes into play in elder care is the rule that care provided for a family member is a gift unless you can prove otherwise. You overcome that presumption by having a care contract—a written agreement in which the elder pays a family member for care. To be valid, the contract has to be signed before the care is given. I am forever encouraging elders and their family care givers to turn the informal exchange of gifts into a contract. With a contract money flows from the elder to the family care giver without the Medicaid penalty. Most families, however want nothing to do with my care contracts. No financial or legal advantage is significant enough to put a child through the humiliation of asking a parent to pay for family-provided care.

The system of informal giving is so important that few families will sign on to the lawyer-invented alternatives. This means at the time of a Medicaid application some elders will be punished for giving money to their children, and some children who might have received money for providing care will see that money go to care centers or the government.

I will continue to advise against joint bank accounts (a form of gift), joint ownership of real property (another form of gift) and outright gifts of money from elders to their children. I will offer care contracts to be signed by the elders and their children in the hope that the elder's money will flow in a structured way to family care providers rather than nursing homes or the government. A few families will take my advice, but most will not.

I don't blame the families who decline to accept my advice. They choose their family culture over legalism and who am I to blame them. The legal rules and presumptions were developed to stop the small percentage of people who used informal gifting to scam the system. The rules stop the cheaters and mildly annoy the vast majority. Families, I have learned, will put up with a significant amount of annoyance to keep the long established system of gifts in place, and when all is said and done few families are worse off because of it.

We lawyers see the exchange of gifts as a problem, and we offer solutions. Most families who come to me don't see the problem, and thus decline my solutions. I cannot say they are wrong, but I always want their decisions to be informed. 

I have more to say about gifts. In the system of reciprocal gifts I have described there is usually one or more family member keeping accounts of who did the giving and who did the receiving. Where accounts are kept there must come a day of reckoning. That day comes when the elder dies. In my next post, I talk about gifts and the administration of estates.