Tuesday, October 22, 2013

Family alignment in financial elder abuse cases in Oregon

I have written before that the people who file financial elder abuse cases under Oregon's elder abuse statutes are seldom abused elders. The only cases I ever see in my office are cases filed by fiduciaries: conservators if the elder is alive or executors if the elder has died. In the real world, the cases are filed by one family member against another. Most of the cases involve siblings: Cain and Abel battling over Adam's money.

Financial elder abuse cases filed by conservators and executors tend be attempts by one sibling against another to undo gifts made by the elder. For example, Adam gives Abel the house, and when it comes to reading the will it turns out that the house was the only thing of value that Adam owned. Cain is out of luck. He goes to his Oregon elder law lawyer and sues Abel for financial elder abuse on the grounds that Abel used undue influence to get Adam to sign the deed.

If old Adam has dementia instead of being dead, Cain either gets himself appointed conservator or gets his Oregon elder law lawyer to hire a professional fiduciary who will do the deed for him. Cain then files the elder abuse case while Adam is still alive. The goal is still the same--to bring the house that Adam gave away back into the estate so Cain can inherit it according to the terms of the will.

I have a case in which it is a daughter against mother over grandma's property, but the bulk of the cases I see are brothers and sisters fighting with each other. Seeing siblings fighting like this can be discouraging, but I have to remind myself that humans have a rich history of such fights. We have Cain and Abel of course, and in the old days when the becoming king of a nation was at stake, siblings murdered each other to protect an inheritance. Compared to that, going to court is actually quite civilized.

You may think that you are safe from brotherly litigation because you get along well with your siblings or because your parents have no money to fight over. Beware--these disputes suck in everyone close to the battlers. I know of a case locally where the court entered a judgment against the wife of one of two battling brothers because her husband spent his ill gotten goods paying the mortgage on the home where he and his wife lived. Being anywhere close to these disputes is dangerous.

I think the Oregon legislature had the best of motives when it passed the Oregon financial elder abuse statutes. It wanted to protect elders and punish those who would take advantage of them. I doubt they had in mind a full-employment law for probate litigators, but it seems to me that is what has happened. For people, who want to challenge the estate plan of a parent, it adds an additional legal weapon that can be put to use before the elder is even dead. For people who have received large gifts from elders, it makes for sleepless nights. And for lawyers like me who make a good living off of family discord, it means a regular income.

Powers of Attorney and changes in beneficiary designations on life insurance and retirement plans.

Recently I have had a lot of cases in which someone has used a power of attorney to change the beneficiary designations on an elder's life insurance or retirement plan. After the change, the elder dies, the life insurance company or the administrator of the retirement plan pays off according to the beneficiary designation, and then shortly thereafter we are in court.

Let's review. When a person dies, property passes in one of three ways. Property owned jointly with a right of survivorship passes to the joint owner. Life insurance, retirement accounts and pay-on-death accounts go to to the person named on the beneficiary form. The remainder of the property passes according to the terms of the will.

One of the ways to make the will less important or even worthless is to make sure all the major assets pass by joint ownership or beneficiary designations. In the case of real estate, a person might do this by talking the elder into "putting him on" the deed to the house. In the case of life insurance or retirement accounts the person mght convince the elder to change his beneficiary. Sometimes, however, the elder cannot change beneficiary designations. If a person who wants the change to happen has a power of attorney that allows the agent to change the designation, the agent can change the designation himself. If the agent changes the designation to himself, or someone closely related to him, then when the elder dies, we will be going to court.

Going to court is good for me, but not so good for the family.

I have had so many cases about a change of beneficiary made by an agent under a power of attorney that I have changed my standard power of attorney to eliminate the power of the agent to change  beneficiary designations. A power of attorney is intended to allow the agent to handle financial matters for the benefit of the elder.  Beneficiary designations control what happens after the elder has died. I do not understand how changing who gets money after an elder dies is helping a living elder. An agent under a power of attorney cannot change a will: why should the agent be able to change beneficiary designations.

Other lawyers do not share my concerns.  A lot of powers of attorney explicitly or arguably allow the agent to change beneficiary designations, and the agents under those powers seem willing to do it. What happens when they do? The elder dies and the person who used to be the beneficiary sues the person who got the money.

These tend to be complicated cases. Will contests and trust contests all look about the same. Lawyers challenging a change in beneficiary designation need to find a legal theory to get the case to court, and the theories vary from the sublime to the ridiculous. A discussion of those theories is far beyond what I can do in a blog, but I can assure you that when creative legal theories are necessary, the legal bills are high.

As for advice: don't use a power of attorney to change the beneficiary designations for someone else. This goes double if you think it is a good idea to make yourself the beneficiary. And it goes triple if your reasoning is that you have to name yourself because that is what the elder really wants but the elder is too incapacitated to do the deed him or herself. If you ignore warnings one, two and three, and the life insurance company or retirement account administrator pays off, be sure to stash at least half of the proceeds to pay your lawyer in the litigation that is sure to follow.

Friday, July 19, 2013

The economics of financial elder abuse civil cases in Oregon, (or, if you are getting valuable property from a disabled elder, be sure to get it in cash.)

I sometimes sue people for the financial elder abuse of elders. Being a full service elder law lawyer, I also defend people accused of it.

(I have written a bunch of posts about what goes into financial elder abuse cases, who brings them, and the advantages that the treble damages provisions give to a plaintiff. In this post I will stick to the economics of the cases and how to pay the lawyers.)

A friend of mine who teaches classes for other lawyers on the ins and outs of Oregon's financial elder abuse advises lawyers new to the area to look first for the money. Ask whether if you win the case, can you collect on the judgment. If the person accused of elder abuse is a turnip—in that you can't get blood (or money) out of a turnip—what is the point in suing. So first, find a lump of money or a piece of valuable real estate from which any judgment can be collected.

The next question for the plaintiff (the person filing the lawsuit), is how will the lawyer get paid. These lawsuits are expensive. They take a lot of the lawyer time and involve a lot of expenses. There are court filing fees, fees to obtain records, deposition costs, expert witness fees, and a slew of miscellaneous costs. Somebody has to be there to pay these costs, and the lawyer is not going to pay them out pocket on the off chance he or she wins the case and collects. Even lawyers silly enough to take these cases on a contingency basis, will demand that someone be there to pony up for costs and expenses.

Once in a blue moon an elder discovers that he has been cheated and then uses his own money to hire a lawyer and sue the bad guys for elder financial abuse. Everybody loves these cases and hopes for the elder to win. I have never had one of these cases, but I keep hoping.

Most financial elder abuse cases are brought by conservators or executors. That means that when the case is filed, the elder is either demented or dead. The conservator or executor brings the case on behalf of the incapacitated or dead elder alleging that the bad guy—usually a relative—took money from the elder before the elder died or became demented. Most often the claim is that the bad guy used “undue influence” to get the money. (I discuss undue influence elsewhere). The conservator or executor wants to use the case to bring the money or property taken from the elder back into the probate or conservatorship estate so that it can be used for the elder's care or distributed according to the elder's will or both.

A conservator has control of an incapacitated person's money. A personal representative—the same thing as an executor—has control of the money the elder had when she died. The plaintiffs in these cases use the elder's money to pay their lawyers and the costs of litigation.

The key move for a sister who wants to use an elder abuse case to undo that gift of the house from dad to the neer-do-well son, Bob, is to get appointed executor or conservator. Whether sis can get appointed executor depends on dad being dead and what the will says. If dad is loopy but not dead, sis can ask that she be appointed conservator. It could look bad if she gets appointed conservator and then immediately sues Bob, so she might instead ask that a professional conservator be appointed. Because of all the money that can be made by a professional conservators in cases like this, it will not be hard for her to find a local professional willing to carry the water for her in a lawsuit against Bob. The professional will take possession of dad's assets and use them to hire a lawyer to sue against Bob.

Now let's turn to the other side. Bob finds himself served with a lawsuit for financial elder abuse because dad gave him a house.

I was at a conference on elder law once and I joked that one of the reasons I liked doing defense in financial elder abuse cases was that the accused client obviously had the money to pay me. One of my colleagues—a very serious person who assumes that the plaintiffs in elder abuse cases are always the good guys—took umbrage. My joke, however, may have lacked both humor and truth. If dad gave Bob $100,000 in cash that a conservator now wants to recover, Bob has money to pay me, and my fee for all practical purposes comes from the same source of funds that finances the conservator—dad's money.

If, however, dad gave Bob a house to live in and he is living there on his Social Security disability income, he may not have the money to pay for his defense. In that case he will be under enormous pressure to settle. Sis may not be satisfied with just giving the house back because the damages for elder abuse—in this case taking property through undue influence—is three times the damage to the elder. That means three times the value of the house. Sis may demand that Bob give back the house and whatever inheritance he was destined to receive when dad died. With no money to defend the case, Bob may cave. The will might well have said that upon dad's death, his property goes to Bob and sis equally. Getting a free house from dad while he was alive—which probably seemed to Bob a great idea at the time—sinks him in the end. Sis uses her leverage to get the house back plus some or all of Bob's inheritance. It is hardly the result that dad had in mind, but that is life in the big city.

If Bob got $100,000 in cash instead of a house, but spent all the money on booze and women before a conservator gets appointed to sue him, he still has no money to pay a lawyer for his defense. In this case, he will have to settle with sis by giving up the remainder of his inheritance. She will take that because Bob is now a turnip.

The lesson for Bob is that when negotiating a big gift from dear old dad, get cash and don't spend it all. Bob will need a good chunk of it to pay me to defend him when sis sues. Dad's money always pays to bring the lawsuit. Defending dad's wishes and the gifts he gave while alive will require some of dad's money as well.

(If this post makes you angry because dad really did want to give Bob that house or money, see my post on financial elder abuse and the obligation to say no.)

Thursday, June 27, 2013

2013 Changes to the Elder Abuse Reporting Requirements in Oregon

The 2013 legislature has tweaked the Oregon elder abuse reporting requirements in a manner that makes Oregon's system for discovering, preventing and punishing elder abuse even weirder and more unwieldy than it was before. Prior to the changes you were required to report elder abuse if you learned about it while practicing one of the following professions:

    (a) Physician, naturopathic physician, osteopathic physician, chiropractor, physician assistant or podiatric physician and surgeon, 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, county 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) Any public official who comes in contact with elderly persons in the performance of the official’s official duties.
     (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.

The new law adds dentists, optometrists, chiropractors and attorneys. It also requires reporting even if the professional is not practicing his profession, Thus, if a dentist is at a barbecue at a park and witnesses elder abuse a couple of picnic tables down, he must report it.

The new requirement doesn't change much, but because it now includes attorneys it has sparked a fair amount of discussion among lawyers.

Attorney-client confidentiality remains inviolate. Thus, lawyers are exempt from reporting if information about elder abuse comes from a client or is learned in the course of representation and would be detrimental to a client. This means that if you hire me and then admit to committing elder abuse, I cannot report you. Similarly, if you come to me and say you are a victim of elder abuse but you want to keep it secret, I will have to keep it secret. Beyond that I am be required to report.

The problem with including lawyers is that we elder law lawyers spend a lot of time speculating about what might or might not be considered elder abuse. Take a look at what the reporting statute defines as elder abuse:
(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 [a bunch of other Oregon laws].
         (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 licensed physician and any treatment activities that are consistent with an approved treatment plan or in connection with a court order.

Let's take verbal abuse to start. I know a couple of dive bars where old retired men hang out. Insults, profanity and threats coming from and directed at people over sixty-five are simply part of the ambiance of the place. It goes on every day from opening to closing. If I have to report verbal abuse of elders, should I simply make a list of those places and report it to the Department of Human Services every morning.

Neglect is elder abuse. Try defining “neglect” in the real world and then reporting it to APS every time you hear of something that fits the bill.

Another statute says that it is financial elder abuse to wrongfully take property from an elder. So what is "wrongful?" We know that it is wrongful to take property using undue influence, but the law of “undue influence” is incomprehensible even to lawyers like me who practice in the field.

I have commented among my colleagues that I will soon be sixty-five years old and will then be a vulnerable person. The elder abuse statutes will apply to me. I intend to continue practicing law. If somebody doesn't pay my bill, it will no longer be a collection matter. It will be elder financial abuse because the client has wrongfully taken the services of an elder without paying for it. If someone in the heat of litigation curses at me it is elder abuse. After the new statute goes into effect, maybe I will be required to report the curses and the unpaid bill to Adult Protective Services so its agents can investigate. I know quite a few APS agents. I can just imagine their laughter when I make that call.

Where all of this gets dangerous is in an area of elder abuse we in the field refer to as bystander liability. Under Oregon law someone who commits elder abuse can be found liable in a civil case for three times the amount of damage plus attorney fees. Thus, if you are joint on grandma's bank account (and you never put any money in the account) and you take out a hundred dollars to treat yourself to a night at the casino, you can probably be required to pay grandma back $300 plus the attorney fees it cost grandma to go after you.

The kicker in the above scenario is that if your next door neighbor knows you are taking grandma's money to gamble with and the neighbor doesn't take reasonable steps to stop you, the neighbor can be required to pay grandma three times the amount of her loss plus attorney fees. The bystander who knew about the abuse and didn't do anything about it is as liable as the person who did it. And bystander liability applies to everybody, not just people in the professions listed in the reporting statute. The nice thing about bystander liability is that we lawyers can pick a bystander with money. In the case of grandma's hundred dollars, you are not a good defendant because you have a gambling problem. Your neighbor, however, may have stayed out of the casino and put what he had in savings. He is the one we lawyers will want to sue.

The law in this area has never been clear. It would seem that if the neighbor reported your gambling trip to Adult Protective Services, the report would be considered a reasonable action to prevent the abuse. The statute doesn't say that, but lawyers tend to think so. The theory is that the statute sets out a standard of reasonableness for people in the listed professions. I have never seen a judge say this, but many lawyers have suggested that in the right case, a judge might say it.

If my interpretation of the law is correct, the reporting statute is one that protects professionals from liability where the average person gets no protection at all. Bystander liability applies to everyone. A professional who complies with the reporting requirement might have some protection against bystander liability. A non-professional who reports, even though having no obligation to do so, would also get the protection. But a non-professional who read the statute and thought that he or she did not have a duty to report could be in big trouble.

And when you do report, what happens? Adult Protective Services has the ability to investigate and punish wrongdoers in criminal court. Most cases involving elders, however, are not so dire that evil doers need to be arrested and sent to jail. The elders most often need help with daily living, money management, maybe a restraining order, a conservatorship, or even a guardianship. APS does not provide these things. (I do, but you have to hire me. That costs money.) The job of APS is to prosecute the perpetrators, not necessarily help the elder. I am all for punishing bad guys, but the first rule in my practice is to protect our old folks. Putting someone in jail seldom does that.

The legislature wants to stop elder abuse. The current system works for those severe cases where the behavior is criminal and the perpetrator is clearly a bad guy. The system, however, is less useful on the edges where we find nothing but a dysfunctional family and clever lawyers willing to use any boorish behavior as an excuse to sue somebody in civil court for elder abuse. Often it is hard to tell whether abuse has occurred or not, and even when it has, putting people in jail or having family members sue each other for civil damages may not be the best way to put the family back on track.

Monday, May 20, 2013

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.

Tuesday, April 16, 2013

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.

Thursday, February 28, 2013

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."

Tuesday, February 5, 2013

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.