Title 125 · ORS Chapter 125

125.425, a conservator may make gifts on behalf of the protected person for such purposes as the protected person might have been expected to make. The conservator may make gifts without prior court a

Citation: ORS 125.425

Section: 125.425

125.425, a conservator may make gifts on behalf of the protected person for such purposes as the protected person might have been expected to make. The conservator may make gifts without prior court approval of up to $250 to a person in a calendar year, not to exceed an aggregate amount of $1,000 for all gifts in a calendar year. The conservator must have prior court approval for any other gifts. [1995 c.664 �41]

�� 125.440 Acts conservator may perform only with court approval. A conservator may perform the following acts only with prior court approval:

�� (1) Convey or release contingent or expectant interests of the protected person in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.

�� (2) Create revocable or irrevocable trusts of property of the estate. A trust created by the conservator may extend beyond the period of disability of the protected person or beyond the life of the protected person. A trust created by the conservator must be consistent with the will of the protected person or any other written or oral expression of testamentary intent made by the protected person before the person became incapacitated. The court may not approve a trust that has the effect of terminating the conservatorship unless:

�� (a) The trust is created for the purpose of qualifying the protected person for needs-based government benefits or maintaining the eligibility of the protected person for needs-based government benefits;

�� (b) The value of the conservatorship estate, including the amount to be transferred to the trust, does not exceed $50,000;

�� (c) The purpose of establishing the conservatorship was to create the trust; or

�� (d) The conservator shows other good cause to the court.

�� (3) Exercise rights of the protected person to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value.

�� (4) Disclaim any interest the protected person may have by testate or intestate succession, by inter vivos transfer or by transfer on death deed.

�� (5) Authorize, direct or ratify any annuity contract or contract for life care.

�� (6) Revoke a transfer on death deed. [1995 c.664 �42; 2007 c.62 �1; 2011 c.212 �28]

�� 125.445 Acts authorized to be performed without prior court approval. A conservator may perform the following acts without prior court authorization or confirmation if the conservator is acting reasonably to accomplish the purposes for which the conservator was appointed:

�� (1) Collect, hold and retain assets of the estate including land wherever situated, until, in the judgment of the conservator, disposition of the assets should be made. Assets of the estate may be retained even though those assets include property in which the conservator is personally interested.

�� (2) Receive additions to the estate.

�� (3) Continue or participate in the operation of any business or other enterprise.

�� (4) Acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest.

�� (5) Invest and reinvest estate assets and funds in the same manner as a trustee may invest and reinvest.

�� (6) Deposit estate funds in a bank including a bank operated by the conservator.

�� (7) Except as limited in ORS 125.430, acquire or dispose of an estate asset including real property wherever situated for cash or on credit, at public or private sale.

�� (8) Manage, develop, improve, exchange, partition, change the character of or abandon an estate asset in connection with the exercise of any power vested in the conservator.

�� (9) Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, or raze existing or erect new party walls or buildings.

�� (10) Subdivide, develop or dedicate land to public use, make or obtain the vacation of plats and adjust boundaries, adjust differences in valuation on exchange or partition by giving or receiving considerations, and dedicate easements to public use without consideration.

�� (11) Enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship.

�� (12) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.

�� (13) Grant an option involving disposition of an estate asset or take an option for acquisition of any asset.

�� (14) Vote a security, in person or by general or limited proxy.

�� (15) Pay calls, assessments and any other sums chargeable or accruing against or on account of securities.

�� (16) Sell or exercise stock subscription or conversion rights, or consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise.

�� (17) Hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery. The conservator is liable for any act of the nominee in connection with the stock so held.

�� (18) Insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons.

�� (19) Borrow money to be repaid from estate assets or otherwise and mortgage or pledge property of the protected person as security therefor.

�� (20) Advance money for the protection of the estate or the protected person, and for all expenses, losses and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets. The conservator has a lien on the estate as against the protected person for advances so made.

�� (21) Pay or contest any claim, settle a claim by or against the estate or the protected person by compromise, arbitration or otherwise, and release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible.

�� (22) Pay taxes, assessments, compensation of the conservator and other expenses incurred in the collection, care, administration and protection of the estate.

�� (23) Allocate items of income or expense to either income or principal, including creation of reserves out of income for depreciation, obsolescence or amortization, or for depletion in mineral or timber properties.

�� (24) Pay any sum distributable to a protected person or a dependent of a protected person by paying the sum to the protected person or the dependent, or by paying the sum either to a guardian, custodian under ORS 126.700, or conservator of the protected person or, if none, to a relative or other person with custody of the protected person.

�� (25) Employ persons, including attorneys, auditors, investment advisers or agents, even though they are associated with the conservator, to advise or assist the conservator in the performance of administrative duties, acting upon their recommendation without independent investigation, and instead of acting personally, employing one or more agents to perform any act of administration, whether or not discretionary, except that payment to the conservator�s attorney of record is subject to the provisions of ORS 125.095.

�� (26) Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of duties.

�� (27) Prosecute claims of the protected person including those for the personal injury of the protected person.

�� (28) Execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the conservator. [1995 c.664 �43]

�� 125.450 Voidable transactions. Any sale or encumbrance to a conservator, the spouse, agent or attorney of the conservator, or any corporation or trust in which the conservator has a substantial beneficial interest, or any transaction that is otherwise affected by a substantial conflict of interest is voidable unless the transaction is approved by the court after the filing of a motion with the court seeking approval of the transaction. [1995 c.664 �44]

(Desires of Protected Person)

�� 125.455 Power of competent protected person over estate. (1) A protected person, if mentally competent, may make wills, change beneficiaries of life insurance and annuity policies and exercise any power of appointment or any elective right to share in the estate of a deceased spouse.

�� (2) Except as provided in this section and ORS 125.420, a protected person for whom a conservator has been appointed cannot convey or encumber the estate of the protected person or make any contract or election affecting the estate of the protected person. [1995 c.664 �45]

�� 125.460 Consideration of estate plan of protected person. In investing the estate, selecting assets of the estate for distribution and utilizing powers of revocation or withdrawal available for the support of the protected person and exercisable by the conservator or the court, the conservator and the court shall take into account any known estate plan of the protected person, including the will of the protected person, any revocable trust of which the protected person is settlor, and any contract, transfer or joint ownership arrangement with provisions for payment or transfer of benefits or interests at the death of the protected person to another or others that the protected person may have originated. The conservator may examine the will of the protected person. [1995 c.664 �46]

(Inventory of Property)

�� 125.465 Discovery of property; examination by conservator. (1) The court may order any person to appear and give testimony by deposition if it appears probable that the person:

�� (a) Has concealed, secreted or disposed of any property of the protected person;

�� (b) Has been entrusted with property of the protected person and fails to account for that property to the conservator;

�� (c) Has concealed, secreted or disposed of any writing, instrument or document relating to the affairs of the protected person;

�� (d) Has knowledge or information that is necessary to the administration of the affairs of the protected person; or

�� (e) As an officer or agent of a corporation, has refused to allow examination of the books and records of the corporation that the protected person has a right to examine.

�� (2) If a person is cited to appear under this section and fails to appear or to answer questions asked as authorized by the order of the court, the person may be held in contempt of court. [1995 c.664 �47]

�� 125.470 Filing of inventory required; supplemental inventory. (1) Within 90 days after the date of appointment, unless a longer time is granted by the court, a conservator must file in the protective proceeding an inventory of all the property of the estate of the protected person that has come into the possession or knowledge of the conservator. The inventory must show the estimates by the conservator of the respective true cash values as of the date of the protective order. If the protected person has attained 14 years of age, a copy of the inventory must be served on the protected person personally or by mail.

�� (2) Whenever any property of the estate of the protected person not included in the inventory or any subsequent accounting and not derived from any asset included in a prior inventory or any subsequent accounting comes into the possession or knowledge of the conservator, the conservator must file a supplemental inventory in the protective proceeding. The supplemental inventory must be filed within 30 days after the date of receiving possession or knowledge of the property.

�� (3) If the estate of the protected person includes real property, the conservator must record in the deed records of the clerk of the county in which the real property is situated a certified copy of the inventory required by this section or an abstract in substantially the following form:

______________________________________________________________________________

The protected person�s name is ______

___________________________

Conservatorship Case # ____________

County where proceedings are pending ______________________

Conservator is ____________

Conservator�s address is ____________

Attorney�s name is ____________

Attorney�s address is ____________

The following real property is subject to proceedings: ________

Signature ______________________

Dated ______________________

STATE OF OREGON�� )

�� )�� ss.

County of ________�� )

�� The foregoing instrument was acknowledged before me this ___ day of ______, 2___, by ____________.

______________________

Notary Public for Oregon

My commission expires: ____________

______________________________________________________________________________ [1995 c.664 �48]

(Accountings)

�� 125.475 Conservator�s accounting to court; contents. (1) Unless the court by order provides otherwise, a conservator shall account to the court for the administration of the protected estate within 60 days after each anniversary of appointment. In addition, a conservator shall account to the court for the administration of the protected estate:

�� (a) Within 60 days after the death of the protected person, a minor protected person attains majority or an adult protected person becomes able to manage the protected person�s financial resources; and

�� (b) Within 30 days after the removal of the conservator, the resignation of the conservator or the termination of the conservator�s authority under ORS 125.410 (7).

�� (2) Each accounting must include the following information:

�� (a) The period of time covered by the accounting.

�� (b) The total value of the property with which the conservator is chargeable according to the inventory, or, if there was a prior accounting, the amount of the balance of the prior accounting.

�� (c) All money and property received during the period covered by the accounting.

�� (d) All disbursements made during the period covered by the accounting.

�� (e) The amount of bond posted by the conservator during the period covered by the accounting.

�� (f) With respect to conservators who are professional fiduciaries, the total amount of compensation that investment advisers or brokers other than the professional fiduciary charged or received in charges for investments managed or transacted by the investment advisers or brokers.

�� (g) Such other information as the conservator considers necessary, or that the court might require, for the purpose of disclosing the condition of the estate.

�� (3) Vouchers for disbursements must accompany the accounting unless otherwise provided by order or rule of the court or unless the conservator is a trust company that has complied with ORS 709.030 or is the Department of Veterans� Affairs. If vouchers are not required, the conservator shall:

�� (a) Maintain the vouchers for a period of not less than one year following the date on which the order approving the final accounting is entered;

�� (b) Permit interested persons to inspect the vouchers and receive copies of the vouchers at their own expense at the place of business of the conservator during the conservator�s normal business hours at any time before the end of one year following the date on which the order approving the final accounting is entered; and

�� (c) Include in each annual accounting and the final accounting a statement that the vouchers are not filed with the accounting but are maintained by the conservator and may be inspected and copied as provided in this subsection.

�� (4) The court may waive a final accounting if:

�� (a) The conservator was appointed because the protected person was a minor, and the protected person has attained the age of majority, or the conservator was appointed because the protected person was financially incapable, and the protected person is no longer financially incapable;

�� (b) The protected person gives a receipt to the conservator for the property delivered to the protected person; and

�� (c) The conservator files with the court a copy of the receipt issued by the protected person to the conservator.

�� (5) Copies of accountings must be served on all persons listed in ORS 125.060 (3). The court may waive service on the protected person if service of the copy would not assist the protected person in understanding the proceedings.

�� (6) The court may require a conservator to submit to a physical check of the estate in the control of the conservator at any time and in any manner the court may specify.

�� (7) The Chief Justice of the Supreme Court may by rule specify the form and contents of accounts that must be filed by a conservator. [1995 c.664 �49; 1997 c.631 �411; 1999 c.592 �4; 2005 c.123 �2; 2015 c.364 �2; 2019 c.539 �1]

�� 125.480 Approval of accounting. Subject to appeal or vacation within the time allowed by law, an order, made upon notice and hearing, allowing an intermediate accounting of a conservator, is final as to the liabilities of the conservator concerning the matters considered in connection with the intermediate accounting. An order, made upon notice and hearing, allowing a final accounting is final as to all previously unsettled liabilities of the conservator to the protected person or successors relating to the conservatorship. [1995 c.664 �50]

(Liabilities)

�� 125.485 Liability of conservator. (1) A conservator is not personally liable on a contract entered into in the fiduciary capacity of the conservator in the course of administering the estate unless:

�� (a) The contract specifically makes the conservator liable in a personal capacity; or

�� (b) The conservator fails to reveal the representative capacity of the conservator and identity of the estate in the contract.

�� (2) The conservator is personally liable for obligations arising from ownership, obligations arising out of control of property of the estate and torts committed in the course of administration of the estate only if the conservator is personally at fault.

�� (3) Claims based on contracts entered into by a conservator in the fiduciary capacity of the conservator, on obligations arising from ownership or control of the estate or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in the fiduciary capacity of the conservator, whether or not the conservator is personally liable.

�� (4) Any question of liability between the estate and the conservator personally may be determined in a proceeding for accounting or for indemnification, or in any other appropriate proceeding or action. [1995 c.664 �51]

�� 125.490 Status of persons dealing with conservator. (1) A person who in good faith either assists a conservator or deals with the conservator for value in any transaction other than those requiring a court order under the provisions of this chapter is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not require the person to inquire into existence of a power or the propriety of its exercise, except that restrictions on powers of conservators that are indorsed on letters are effective as to third persons. A person is not required to see to the proper application of estate assets paid or delivered to a conservator.

�� (2) The protection provided under subsection (1) of this section:

�� (a) Is not affected by any procedural irregularity or jurisdictional defect in the proceedings that resulted in the issuance of letters; and

�� (b) Is in addition to the protection provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

�� (3) A person who holds property in which the protected person has an interest, or who is indebted either to the protected person or to the protected person and others, may enter into transactions with the conservator with respect to the property or debt to the same extent that the person could deal with the protected person if the protected person were not under protection. [1995 c.664 �52]

(Claims and Expenses)

�� 125.495 Payment of claims against estate or protected person. (1) A conservator shall pay from the estate claims against the estate and against the protected person arising before or after the conservatorship upon their presentation, allowance and maturity. Claims that become absolute at an uncertain event may not be allowed. The conservator may allow claims against the estate of a protected person in part and disallow them in part.

�� (2) A claim may be presented by either of the following methods:

�� (a) The claimant may deliver or mail to the conservator or the attorney for the conservator a written statement of the claim stating the basis of the claim, the name and address of the claimant and of the claimant�s attorney if the claimant is represented by an attorney in respect to the claim, and the amount claimed.

�� (b) The claimant may file the claim with the clerk of the court in which the proceeding is pending, captioned in a manner that will identify the protected person and the clerk�s number of the proceeding, and deliver or mail a copy of the statement to the conservator or the attorney of the conservator.

�� (3) If the conservator disallows the claim in whole or in part, or if the conservator finds that the claim is valid but not due, the conservator shall notify the claimant or the attorney of the claimant in writing of the disallowance or finding of the conservator.

�� (4) The presentation of a claim and any defect in form or substance may be waived by the conservator or by the court if the claim, properly stated, is a valid and absolute obligation of the estate.

�� (5) The conservator may reconsider any claim previously rejected or allowed, or may compromise any claim against the estate of a protected person, including contingent, unliquidated and unmatured claims. [1995 c.664 �53]

�� 125.500 Enforcement of claim against estate or protected person. (1) An action upon a claim may not be brought until the claim is disallowed or until 60 days have elapsed from the date of its presentment without allowance of payment.

�� (2) A creditor of the protected person or the estate of the protected person whose claim is secured may not exercise remedies against the security until at least 30 days after the claim is presented and after notice to the conservator or the attorney of the conservator that the creditor intends to exercise remedies against the security. The court may shorten the period for cause.

�� (3) The conservator may convey the security to the secured creditor in full or partial satisfaction of the claim if the secured creditor agrees to accept the conveyance as full satisfaction or partial satisfaction of the debt. [1995 c.664 �54]

�� 125.505 Notice of claim to conservator. If a proceeding is pending against a protected person at the time of appointment of a conservator or is commenced against the protected person after appointment of a conservator, the plaintiff must give notice of the proceeding to the conservator or the attorney of the conservator if any judgment or order arising out of the proceeding will constitute a claim against the estate. [1995 c.664 �55]

�� 125.510 Procedure where claim disallowed. (1) If the conservator disallows a claim in whole or in part, or if the conservator does not allow or disallow a claim within 60 days after it is presented, the claimant may:

�� (a) File in the conservatorship proceeding a request for a summary determination of the claim by the court, with proof of service of a copy upon the conservator or the attorney of the conservator; or

�� (b) Commence a separate action against the conservator on the claim in a court of competent jurisdiction. The action shall proceed and be tried as any other action.

�� (2) If the claimant requests a summary hearing, the conservator may, within 30 days after service of the request, notify the claimant in writing that if the claimant desires to prove the claim the claimant must commence a separate action against the conservator within 60 days after service of the notice. If the claimant fails to commence an action against the conservator within that time, the claim is barred.

�� (3) An order allowing or disallowing in whole or in part a claim that has been considered upon a summary hearing may not be appealed. [1995 c.664 �56]

�� 125.515 Effect of presentation of claim on statute of limitations. (1) The following periods of time shall not be part of the time limited for the commencement of an action under any statute of limitation:

�� (a) The period of time beginning at the presentation of a claim and ending 30 days after the claim is disallowed.

�� (b) If the claim is not allowed or disallowed within 60 days after it is presented, the period of time beginning with the presentation of the claim and ending 90 days after the claim is presented.

�� (2) For the purpose of any statute of limitation, an action is considered commenced upon the filing of a request for a summary determination of a claim that has been disallowed in whole or in part. [1995 c.664 �57]

�� 125.520 Order of payment of expenses and claims. If it is likely that the estate of the protected person will be exhausted before all claims against the estate are paid, the conservator shall give preference in the payment of claims in the following order of priority:

�� (1) Funds needed for the current care, maintenance and support of the protected person and the dependents of the protected person and claims for the expenses of administration.

�� (2) Expenses and claims for the care, maintenance and support of the protected person and the dependents of the protected person that are not paid under subsection (1) of this section.

�� (3) Debts and taxes with preference under federal law.

�� (4) Taxes with preference under the laws of this state that are due and payable while possession of the estate of the protected person is retained by the conservator.

�� (5) All other claims against the conservatorship estate. [1995 c.664 �58; 1997 c.717 �7]

(Termination of Proceedings)

�� 125.525 Termination of conservatorship. An order terminating the conservatorship of a living person shall direct the conservator to deliver the assets in the possession of the conservator to the protected person:

�� (1) Immediately, to the extent that the assets are not required for payment of expenses of administration and debts incurred by the conservator for the account of the estate of the protected person; and

�� (2) Upon entry of an order approving the final accounting or surcharging the conservator, to the extent of any balance remaining. [1995 c.664 �59; 2017 c.169 �59]

�� 125.530 Powers and duties of conservator on death of protected person. If a protected person dies and the conservator has possession of a will of the protected person, the conservator shall either deliver the will to the personal representative named in the will or deliver the will to the court for safekeeping. If the conservator delivers the will to the court for safekeeping, the conservator must inform any personal representative named in the will that the conservator has made that delivery. If it is not possible to inform the named personal representative, the conservator shall inform the beneficiaries named in the will of the delivery. The conservator shall retain and administer the estate for delivery to the personal representative of the decedent or other persons entitled to the estate. [1995 c.664 �60; 1997 c.717 �8]

�� 125.535 Disposition of small estate. If at any time the estate of a protected person consists of personal property having a value not exceeding by more than $10,000 the aggregate amount of unpaid expenses of administration of the protected estate and claims against the estate, the conservator, with prior accounting and approval of the court by order, may pay the expenses and claims from the estate and deliver all the remaining personal property to the person designated by the court in the order, to be held, invested or used as ordered by the court. The recipient of the property shall give a receipt to the conservator. The receipt is a release of and acquittance to the conservator as to the property delivered. The conservator shall file in the protective proceeding proper receipts or other evidence satisfactory to the court showing the delivery. Upon the court receiving the evidence, the court shall enter an order terminating the protective proceeding. [1995 c.664 �61]

(Payment to Foreign Conservator)

�� 125.540 Payment of debt and delivery of property to foreign conservator. (1) A person indebted to a protected person, or having possession of property or of an instrument evidencing a debt, stock or chose in action belonging to a protected person, may make payment or delivery to a conservator, guardian or other fiduciary appointed by a court of the state where the protected person resides, upon being presented with proof of appointment and an affidavit made by the fiduciary stating that:

�� (a) A protective proceeding relating to the protected person is not pending in this state; and

�� (b) The fiduciary is entitled to payment or to receive delivery.

�� (2) If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this state, payment or delivery in response to the demand and affidavit discharges the debtor or possessor. [1995 c.664 �62]

TEMPORARY FIDUCIARIES

�� 125.600 In general. (1) A temporary fiduciary who will exercise the powers of a guardian may be appointed by the court if the court makes a specific finding by clear and convincing evidence that the respondent is incapacitated or a minor, that there is an immediate and serious danger to the life or health of the respondent, and that the welfare of the respondent requires immediate action.

�� (2) A temporary fiduciary who will exercise the powers of a conservator may be appointed by the court if the court makes a specific finding by clear and convincing evidence that the respondent is financially incapable or a minor, that there is an immediate and serious danger to the estate of the respondent, and that the welfare of the respondent requires immediate action.

�� (3) A temporary fiduciary may be appointed only for a specific purpose and only for a specific period of time. The period of time may not exceed 30 days. The court may extend the period of the temporary fiduciary�s authority for an additional period not to exceed 30 days upon motion and good cause shown. The court may terminate the authority of a temporary fiduciary at any time.

�� (4) Except as otherwise provided in this section and ORS 125.605 and 125.610, a temporary fiduciary is subject to all provisions of this chapter. [1995 c.664 �63]

�� 125.605 Procedure for appointment of temporary fiduciary. (1) In addition to the requirements of ORS 125.055, a petition for the appointment of a temporary fiduciary must contain allegations of the conditions required under ORS