Litigation

The Fitzwater Law litigation team couples decades of experience with a drive to provide our clients with exemplary service in all litigation matters related to contested guardianships and conservatorships, trust disputes, will contests, elder financial abuse, and undue influence. We achieve results and represent our clients with professionalism and a commitment to success. We look forward to representing clients who seek just results.


What cases are litigated in Probate Court?
 

WHAT IS PROBATE COURT?
 

Each county in Oregon has a probate court department. In most counties, the probate department is part of the circuit court. In five Oregon counties, probate matters are heard by the county court. The probate court has the same full powers as any court of general jurisdiction.
 

WHAT TYPES OF CASES GO TO PROBATE COURT?
 

The probate court makes decisions for all of the following types of cases:

1. Appointment of personal representatives (sometimes called 'executors')
2. Probate and contest of Wills
3. Questions of heirship
4. Guardianships
5. Conservatorships
6. Supervision and disciplining of personal representatives, guardians, and conservators.
 

Some of Oregon´s probate courts, such as Multnomah County, also hear and decide cases involving trusts, trustees, and trust administration. Otherwise, cases involving trust administration are heard and decided in the general trial department of the circuit courts.
 

WHAT TYPES OF CASES REQUIRE AN ACTUAL APPEARANCE IN PROBATE COURT?
 

Typically, probate court operates by notice of a proposed action to interested parties in a probate matter and then allows the parties an opportunity to object to the proposed action. In the vast majority of cases, there are no objections filed to proposed actions of the parties. In these cases, everything is accomplished by filing paperwork with the court, and no actual appearances by the parties in court are required.
 

Court appearances may be required in the following situations:

• objections filed to proposed actions;
• an emergency exists; or
• the probate court has questions or concerns about the status of a matter.
 

WHAT TYPES OF CASES REQUIRE AN ACTUAL APPEARANCE IN PROBATE COURT?
 

Every case has its own unique set of circumstances that may or may not lead to a full trial. Most cases settle before ever going to trial. Contested guardianships and conservatorships are the most common cases to go to trial in probate court, for a number of reasons.

First, the people and the issues at stake are often highly emotional. Family members may not agree on who should serve as guardian or conservator. Communication barriers and/or conflicting goals may prevent reaching a workable agreement, resulting in the need for trial.
 

Second, the outcome of these cases affects fundamental rights of the proposed protected person. Our society places a high value on every person´s right to make decisions about how and where to live and how to manage and spend money. When a person becomes incapable of making these decisions, there may be a danger to health or personal safety, or the person´s assets may be at risk. But sometimes only slight evidence exists to show the incapacity, and a trial is needed to make this decision. Other cases may have a clear showing of incapacity, but the person objects to it very strongly and needs to have his or her day in court.

Other types of cases that often go to trial in probate court include Will contests and creditor claims in probate cases. Litigation can also occur when a party refuses to cooperate or perform his or her required duties, such as filing tax returns or accounting for the disposition of assets.
 

WHAT ABOUT MEDIATION?
 

Cases with conflicts between family members over the appointment of a fiduciary are often appropriate for mediation. Some counties require mediation in contested cases. Many experienced elder law attorneys are available for mediation services, and each local court maintains an active list of such attorneys. Parties who desire mediation assistance should contact their local court to obtain a referral to an experienced mediator.
 

HOW LONG DOES IT TAKE TO GO TO TRIAL?
 

If someone files an objection to a petition, some courts assign a trial date that is only a few weeks in the future. This often means that a trial will occur within six to eight weeks of the original filing date of the petition. Other courts may set a date that is six or more months in the future.  Often parties will agree to postpone the actual trial to try to work out a solution on their own.


WHAT HAPPENS IF MY CASE GOES TO TRIAL?
 

A judge decides the outcome of almost all trials held in probate court. A jury trial will  only occur where the issue could be described as 'intentional interference with a prospective inheritance.'
 

Once a court date is set, the petitioner must give 14 days´ notice to everyone required by Oregon law to receive notice. If the case is a contested guardianship, the court visitor must attend the trial. For contested guardianships or conservatorships, many courts require the respondent (the proposed protected person) to attend, particularly if capacity is at issue. Sometimes, in these cases, the respondent´s attorney can appear on his or her behalf. This is especially true if all parties agree to the court´s finding of incapacity and the only question is who shall be appointed.
 

WHAT EXPENSES ARE INVOLVED IF WE GO TO TRIAL?
 

Beyond the initial expenses associated with any case filed in probate court, going to trial requires a substantial amount of time for attorney preparation and attendance at the trial.
 

Contested guardianship and conservatorship cases often have increased supporting costs as well, including psychological testing, medical evaluations, and/or functional assessments. All parties to these cases typically anticipate their attorney fees and costs to be paid from the assets of the protected person, because the process occurred for that person´s benefit. However, a losing party should expect objections if he or she requests payment of fees from the protected person´s assets. If objections are filed, the court will hold an additional hearing to decide the outcome.



 

How Is Elder Financial Abuse Litigated?
 

ORS 124.100 allows for a civil action to be brought against a person who has caused physical or financial abuse to an elderly or incapacitated person for damages including economic and non-economic loses, attorney fees, and fees for a conservator or guardian ad litem incurred in bringing the action.
 

ACTIONS AGAINST THE ABUSER
 

1. For Physical Abuse. An action may be brought under ORS 124.100 for physical abuse if the defendant engaged in conduct against an elderly or incapacitated person that would constitute any of the following:

a. Assault, under the provisions of ORS 163.160, 163.165, 163.175, and 163.185.
b. Menacing, under the provisions of ORS 163.190.
c. Recklessly endangering another person, under the provisions of ORS 163.195.
d. Criminal mistreatment, under the provisions of ORS 163.200 and 163.205.
e. Rape, under the provisions of ORS 163.355, 163.365, and 163.375.
f. Sodomy, under the provisions of ORS 163.385, 163.395, and 163.405.
g. Unlawful sexual penetration, under the provisions of ORS 163.408 and 163.411.
h. Sexual abuse, under the provisions of ORS 163.415, 163.425, and 163.427.
 

In addition, an action may be brought for physical abuse if the defendant used any unreasonable physical constraint on the plaintiff or subjected the plaintiff to prolonged or continued deprivation of food or water.
 

An action may also be brought for physical abuse if the defendant used a physical or chemical restraint, or psychotropic medication on the plaintiff without an order from a physician licensed in the State of Oregon.
 

2. For Financial Abuse. An action may be brought under ORS 124.100(1) for financial abuse in the following circumstances:

a. When a person wrongfully takes or appropriates money or property of an elderly or incapacitated person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the elderly or incapacitated person.
b. When an elderly or incapacitated person requests that another person transfer to the elderly or incapacitated person any money or property that the other person holds or controls and that belongs to or is held in express trust, constructive trust or resulting trust for the elderly or incapacitated person, and the other person, without good cause, either continues to hold the money or property or fails to take reasonable steps to make the money or property readily available to the elderly or incapacitated person.
c. When a person has at any time engaged in conduct constituting a violation of a restraining order regarding sweepstakes that was issued under ORS 124.020.
 

ACTIONS AGAINST PERSON 'PERMITTING' ABUSE
 

1. Person 'Permitting Abuse'. ORS 124.100(4) states that a civil action may be brought against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.

Important Note: This is a very broad section of the statute with little statutory guidelines. This author is aware of at least one title and escrow company currently being sued under this section.

2. Exempt Persons Under the Statute. The following persons or institutions are exempt from action under ORS 124.100(4):

a. A financial institution, as defined by ORS 706.008, which includes banks and trust companies.
b. A health care facility, as defined in ORS 442.015, which includes hospitals and long-term care facilities; however, this does not include establishments furnishing primarily residential care or treatment not meeting federal intermediate care standards - see ORS 442.015(14)(d).
c. Any facility licensed or registered under ORS Chapter 443, which includes home health facilities, such as residential care facilities, adult foster homes, in-home care agencies, developmental disability child foster homes, and hospice.
d. Broker-dealers licensed under ORS 59.005 to 59.541 referring primarily to brokers dealing in securities (stock brokers).



Restraining Orders to Protect Elderly Persons and Persons with Disabilities (EPPDAPA)
 

EPPDAPA stands for Elderly Persons and Persons with Disabilities Abuse Prevention Act. This Oregon Act provides a process where an Elderly Person or a Person with Disabilities can request from the court a restraining order against a person who is threatening or abusing the elderly/disabled person. 
 

A Restraining Order is an order from the court that stops a person from threatening or abusing an elderly/disabled person, and requires the abuser to stay away from the elderly/disabled person. The police are required to enforce a Restraining Order if it is violated. A person who violates the Restraining Order can be arrested, and tried for contempt of court or any crimes committed. If the person is found guilty, the person can be fined or sent to jail.
 

Common Terms used in an EPPDAPA proceeding:

Petitioner: the elderly/disabled person requesting the Restraining Order.
 

Guardian Petitioner: a guardian or guardian ad litem for an elderly/disabled person on whose behalf they are requesting the Restraining Order.
 

Elderly Person: a person 65 years of age or older.
 

Disabled Person: a person with a physical or mental impairment that substantially limits one or more major life activities, or a person experiencing an injury to the brain resulting in the loss of cognitive, psychological, social, behavioral or physiological function for a sufficient time.

Respondent: the person named in the Restraining Order to be restrained from threatening or abusing the Petitioner. 

Abuse: one or more of the following:

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

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

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

(d) Willful infliction of physical pain or injury.
 

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

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

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

(h) Sexual contact with a nonconsenting elderly person or person with a disability or with an elderly person or person with a disability considered incapable of consenting to a sexual act.
 

Eligibility Requirements:

You may be eligible to use the EPPDAPA Restraining Order procedure if:
 

1.     You are an Elderly Person OR a Person with Disabilities OR you are the guardian or guardian ad litem for an elderly/disabled person;
 

AND
 

2.    You have been the victim of abuse by the Respondent within 180 days* preceding the filing of the request for a Restraining Order. * Any time the Respondent is in jail or lives more than 100 miles from the elderly/ disabled person is not counted as part of the 180-day period;
 

AND
 

3.    You are in immediate and present danger of further abuse from the Respondent.

How Do I request an EPPDAPA Restraining Order?

The Office of the State Court Administrator has prepared instructions and forms for persons seeking a restraining order under EPPDAPA. The forms can be accessed here: EPPDAPA Form.

The filing of a Petition begins the process for requesting a Restraining Order. The Petition must be filed in either the county where you live (or for Guardian Petitioners, the county where the elderly/disabled person lives) or the county where the Respondent lives. Typically, a Petition is filed by presenting the Petition to the court clerk in person.

After the Petition is filed a hearing will be scheduled. Typically, the hearing is scheduled the same day the Petition is filed. If the judge decides that you are eligible for a Restraining Order the judge will issue a Restraining Order. The Restraining Order is in effect for one year.

What Happens after the Restraining Order is Granted?

A copy of the Restraining Order must be delivered to the Respondent in person. The sheriff or another qualified person may deliver the papers to the Respondent. The Respondent may contest the Restraining Order within 30 days of receiving a copy of the Restraining Order. The Respondent must ask the court for a hearing to contest the Restraining Order and a hearing will be held within 21 days of the request.

At the hearing, the judge will decide whether to change, cancel or uphold the Restraining Order.

At Fitzwater Law, our clients' safety is our highest priority. We understand that this process is difficult and we want you to know you are not alone.  Fitzwater Law is here to assist you with the EPPDAPA restraining order process from start to finish. For any questions, please contact Attorney Daniela Holgate or call us at 503.786.8191.



 


DISCLAIMER: The information contained in this document is based on Oregon law and is subject to change. It should be used for general purposes only and should not be construed as specific legal advice by Fitzwater Meyer Hollis & Marmion, LLP or its attorneys. Neither this website nor use of its information creates an attorney-client relationship. If you have specific legal questions, consult with your own attorney or call us for an appointment.