Oregon Legislature Corrects Procedural Hurdle in ORS 124.100(6) for Financial Elder Abuse Claims
The National Adult Protective Services Association reports that 90% of financial abusers are family members or trusted others. And financial abuse is vastly under-reported: it is estimated that only one in 44 cases are reported to state protective services. Estimates of financial elder abuse and fraud costs range from $2.9 billion to $36.5 billion annually.
The attorneys at Samuels Yoelin Kantor watch for legal changes that may affect our current and future clients. A new Oregon law, effective January 1, 2020, should help vulnerable Oregonians that have been victims of abuse by making it harder to dismiss civil actions for abuse under ORS Chapter 124. This chapter of the Oregon Revised Statutes is also known as the Elderly Persons and Persons with Disabilities Abuse Prevention Act (“Act”).
Oregon lawmakers recently addressed an issue that enabled abusers to avoid elder abuse claims based on a technical procedural requirement.
In June 2019, the legislature passed and Governor Kate Brown signed Senate Bill 783. The new law amends the reporting provision at ORS 124.100(6). Currently, a party filing a civil claim for abuse (financial or physical) under the Act must notify the Attorney General of Oregon within 30 days after commencing the action. Failure to notify the AG has big consequences. A 2016 Oregon Court of Appeals case mandates that an action be dismissed if the commencing party fails to notify the AG within the required time. See Bishop v. Waters, 280 Or. App. 537, 546–48 (2016).
Amended ORS 124.100(6) applies to cases commenced on or after January 1, 2020, and provides that claims will no longer be subject to dismissal due to this strictly construed AG notification requirement. Senate Bill 783 eliminates the 30-day time period, and expressly allows a commencing party to cure a failure to notify the AG by “mailing” a copy of the complaint, or other initial pleading, any time prior to entry of judgment. Further, a court may not enter judgment for the plaintiff until proof of mailing is filed with the court.
The Oregon legislature has made it harder for a defendant to dismiss otherwise valid abuse claims, due to a procedural technicality. The change helps protect the victims of elder abuse while maintaining the notification requirement. This change then helps the AG track and prosecute elder abuse in Oregon.
Samuels Yoelin Kantor LLP is one of the few law firms in Oregon with equally strong estate planning attorneys and fiduciary litigation attorneys. Our attorneys have the experience to recognize the signs of potential elder financial abuse. We know how to bring claims for victims of abuse. Many of our attorneys are licensed in both Oregon and Washington, and litigate claims in both states.
Who can bring a claim under Oregon’s financial elder abuse statute?
The victim, a guardian, conservator, or attorney-in-fact for the victim, a personal representative for a decedent who was a vulnerable person at the time of the abuse, or a trustee for a trust on behalf of the trustor or spouse of the trustor who is a vulnerable person. ORS 124.100(3). In addition to persons with certain mental or physical conditions, any person age 65 or older (regardless of health), qualifies as a “vulnerable person.” ORS 124.100(1).
What are some common forms of financial abuse?
Misuse of a Power of Attorney or joint bank account, overcharging for services, or improperly transfer title to property. Outright threats to abandon unless the victim complies with the abuser’s demands can by itself be financial elder abuse.
What are some warning signs of abuse?
- An unexplained withdrawal, transfer, credit card charge, or payments that are unusual, or don’t otherwise fit with the explanation.
- The elder is not given an opportunity to speak for themselves without the presence of a particular care giver, family member, or anyone else suspected of abuse.
- The elder is extremely withdrawn, defensive, not communicative, or unresponsive. Victims frequently feel shame and embarrassment.
- Unpaid bills, overdue rent, utility shut-off notices.
If you suspect someone is being abused, neglected, or financially exploited in Oregon or Washington, please reach out to the Oregon Department of Human Services or Washington State Department of Social and Health Services.
Also, you may consider hiring a private attorney to employ legal tools to prevent harm, or recover financial losses. Contact Samuels Yoelin Kantor LLP to speak with an experienced fiduciary litigator who understands financial elder abuse claims in Oregon and Washington.
Darlene Pasieczny is a fiduciary and securities litigator at SYK. She represents clients both in Oregon and Washington, with matters regarding trust and estate disputes, financial elder abuse cases, securities litigation, and represents investors nationwide in FINRA arbitration. Her article, New Tools Help Financial Professionals Prevent Elder Abuse, was featured in the January 2019, Oregon State Bar Elder Law Newsletter.