Important New Case Law Confirms Protection for Vulnerable Oregonians

SYK is proud to announce financial elder abusers under ORS 124.110 cannot wipe away debts to their victims just by filing for bankruptcy.

While one would hope that would not be controversial, the previously reported cases provided too much gray area for abusers.  However, with SYK’s recent work, the Bankruptcy Appellate Panel of the Ninth Circuit held that the elements of Oregon’s financial abuse statute squarely meet the elements of the “larceny” or “embezzlement” grounds for exception to discharge of a debt under 11 U.S.C. 523(a)(4).

The case is Bryce Peltier and Kristine Diane Peltier v. Van Loo Fiduciary Services LLC, 2022 WL 4181728 (BAP No. OR-22-1000-FBGBk) (Date Filed August 16, 2022; Ordered Published September 12, 2022).

Congratulations to SYK fiduciary litigator and appellate attorney Darlene Pasieczny, who secured the original state court judgment and handled all aspects of the appeal before the BAP.   SYK bankruptcy and debtor/creditor rights attorney Jessica McConnell assisted with the adversary case filing in the bankruptcy proceedings, and was integral in helping navigate the specialized rules of that court and bankruptcy law, while fiduciary litigator Victoria Blachly assisted throughout.

Our SYK litigation team successfully preserved over $1 million of the state court financial abuse judgment in favor of our client, who is the court-appointed conservator and personal representative for the victims.

Ms. Van Loo responded to the ruling, “SYK’s help was vital.  Thank you so much for helping turn the tide in case law to protect those who have been financially victimized.’”

SYK Partner Victoria Blachly’s Work on the Uniform Law Commission

Happy 130th Birthday to the Uniform Law Commission (“ULC”)! Samuels Yoelin Kantor Fiduciary Litigation Partner Victoria Blachly is an Oregon Commissioner for the ULC.  Read our interview with Victoria about her work on the ULC.

What does the ULC do?  

The ULC “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” They do not have authority to enact legislation, rather they propose legislation to states to address legal issues that cross state lines and would benefit from uniformity.  You may know them from some of their greatest hits, like the Uniform Commercial Code or the Uniform Trust Code.

How did you become involved with the ULC?  

It’s a very long story, but let me see if I can fight my litigator’s tendency to go on forever and give you the highlights.  After seeking to make the laws in Oregon better by chairing a committee with proposed legislation for access to digital assets by personal representatives, trustees and other fiduciaries, I learned the ULC  was interested in the same project, on a national level.  I became an “Observer” to the study committee and then the drafting committee, which resulted in the Fiduciary Access to Digital Assets Act. I was impressed with the diligence of the volunteers, in striving to propose new laws to help so many.  Then, when an opening became available in 2014, I submitted my name for consideration to the Governor of Oregon.  Since then, it’s been nothing but sunshine and lollipops.

What are some highlights from your work as a Commissioner?  

The first thing that comes to mind is that I am so very grateful for meeting and working with such a dedicated group of volunteers, including the rest of the Oregon delegation:  Justice Martha Lee Walters, Lane Shetterly, Joe Willis and Carl Bjerre.  Also, the annual ULC meetings are filled with other volunteer attorneys, professors and judges that take the work seriously, are very detail-oriented and raise and address complicated legal issues with the utmost of professionalism and respect for a variety of ideas and insights.  The ULC, as a non-political group, is a refreshing contrast to how some currently opt to debate legal issues.

Tell us about some issues that the ULC is currently working on.

The number of active committees and projects is too voluminous to address here, but their website has a wealth of information available. Currently I am on a Committee for updates to the Uniform Determination of Death Act. There are a large number of medical professionals, patient advocates and lay people Observers with amazing and often heartbreaking stories, who all share their perspectives.  As science has progressed and knowledge has changed, the convergence between law and science makes the topic a challenge to decipher in a way that provides good answers to often bad choices.

Oregon Legislature Corrects Procedural Hurdle in ORS 124.100(6) for Financial Elder Abuse Claims

Oregon Legislature Corrects Procedural Hurdle in ORS 124.100(6) for Financial Elder Abuse Claims

The National Adult Protective Services Association reports that 90{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} 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.

Report abuse

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, Attorney

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.

SYK Attorney Darlene Pasieczny to Moderate “Hybrid Advisers” Panel

Hybrid Advisers: Regulation and Claims Regarding Dual‐Registered Brokers and RIAs

Moderator, Darlene Pasieczny, Samuels Yoelin Kantor LLP; Speakers Jeffery Schaff, Ardor Fiduciary Services, Ltd., and James Wrona, VP and Associate General Counsel, FINRA.  This panel will explore issues in regulation and customer dispute resolution when a culpable financial adviser “wears two hats” as both a FINRA‐licensed broker and SEC‐licensed registered investment adviser. When is the brokerage firm responsible for conduct by its dual‐registered associated person? How do FINRA and the SEC parse enforcement issues for these hybrid advisers? The panel will discuss trends in customer arbitration cases, recent case law decisions, compliance and enforcement.

Tuesday, October 9, 2018

Securities Law Seminar at the 27th PIABA Annual Meeting

Bonita Springs, Florida

Find registration information here.

Darlene Pasieczny’s practice at Samuels Yoelin Kantor LLP focuses on all stages of corporate and securities law issues, securities litigation and FINRA arbitration, as well as fiduciary litigation in trust and estate disputes, and elder financial abuse.

June 15 – World Elder Abuse Awareness Day

One in ten Americans aged 60 or above have experienced some form of elder abuse.

June 15th is World Elder Abuse Awareness Day, a day designated to bring visibility to the prevalence of global elder abuse. According to the National Council on Aging, one in ten Americans aged 60 or above have experienced some form of elder abuse. It is expected that with the number of older persons growing, abuse of the elderly will also grow. Though elder abuse is a serious and common problem that could lead to poverty, hunger, homelessness, compromised health and well-being, and even premature mortality, it often is one of the least investigated or reported types of abuse.

Recent research findings have highlighted financial exploitation as a frequent form of elder abuse. It has been estimated on a global scale that 5 to 10 per cent of older people may experience some kind of financial exploitation. Financial exploitation often goes unreported either due to the victim’s embarrassment or because of an impairment resulting in an inability to report the abuse.

An older person may be vulnerable to financial exploitation due to social isolation and cognitive impairments. Other factors that place the elderly at risk include: emotional or physical dependence on the perpetrator, financial dependence of the abuser on the older person, certain living arrangements, poverty, widowhood and lack of support networks. Societal prejudices such as ageism and discriminatory systems may also contribute toward the elderly being at risk of financial exploitation.

One way to prevent elder abuse is to plan for the future. A power of attorney or a living will can address health care and financial decisions and better avoid confusion and problems later on. Having a will and reviewing the will periodically may also help prevent abuse. An estate planning attorney can provide assistance in planning for the future.

Family members and others concerned about preventing or stopping ongoing elder abuse also have options. Education on abuse and being able to identify the common forms it takes can be critical to prevention. For education resources go to

Reporting abuse or suspected abuse is also vital. For immediate, life-threatening danger, the police should be contacted. If an older person is being mistreated the local Adult Protective Services office should be contacted. If the older person is in a facility, such as a nursing home, the Long-Term Care Ombudsman should be contacted. In Oregon the Elder Abuse Hotline number is 1-855-503-7233.

While physical abuse and some financial abuse issues can be appropriately responded to by the police, other financial abuse issues may require an experienced elder abuse attorney.

An experienced elder abuse attorney may be able to determine whether financial elder abuse has occurred through undue influence, lack of capacity, or a breach of fiduciary duty. If financial abuse has occurred an experienced elder abuse attorney may be able to litigate abuse claims on behalf of the victim or the victim’s family.

Special thanks to Daniela Holgate for her work on this article. Daniela is a law clerk at SYK, and a J.D. candidate at Lewis & Clark School of law.

Victoria Blachly - Parter

Not only is Victoria Blachly a partner at SYK, and an experienced fiduciary litigator that works with many elderly clients, cases or causes, she is also a proud Board Member for the Oregon Alzheimer’s Association Chapter.

Competency Can be Tricky: Don’t Rule Out the Nonagenarian

The brain is a challenging maze and competency blends medicine and law in a complicated fashion.

Sumner Redstone, at 92 years-old and the controlling shareholder of his $40 billion media empire, Viacom Inc. and CBS Corp. has accomplished a lot. And a court recently ruled he can continue to make his own decisions, including deciding who should be his health-care agent.

This ruling disappointed (to say the least) his former girlfriend and longtime companion, whom he had evicted last fall and removed as his health-care agent, before also removing her from his Will, in which she was to inherit $70 million in cash and real estate.

Although a speech therapist had to interpret Mr. Redstone’s impaired speech, the judge was swayed by the video deposition in which Mr. Redstone made it clear that he wanted his ex-girlfriend out of his life and preferred his daughter to be his health-care agent. The judge remained unconvinced by an expert witness who failed to overcome the presumption of capacity.

The brain is a challenging maze and competency blends medicine and law in a complicated fashion. Our country’s ageism tends to count out anyone over 65, but the judge in this hearing found otherwise.

Oregon First to Pass RUFADAA – Allowing Legal Access to Your Digital Assets

Oregon becomes the first state to pass RUFADAA: The Revised Uniform Fiduciary Access to Digital Accounts Act.

SYK has been advising our clients, friends and colleagues about managing Digital Assets (your online accounts) for many years, lamenting the fact that the Internet was outrunning the law. We’ve been writing about it, testifying before legislators, speaking at seminars and encouraging everyone to prepare a VAIL – or Virtual Asset Instruction Letter. 

We are happy to report that there is new light on the issue. Oregon has just become the first state in the nation to pass RUFADAA: The Revised Uniform Fiduciary Access to Digital Accounts Act. Oregon Senate Bill 1554 was signed by the Governor yesterday and will become effective January 1, 2017.

This law is important in that while it allows for personal representatives, powers of attorney and trustees to have access to online accounts to perform their fiduciary duties, it also requires everyone to be proactive in affirmatively stating in your trust or estate plan that you grant such authority; otherwise, the online providers’ terms of service agreements will control. And those agreements often give the online provider all of the power, including the power to hit “delete” when they know someone has passed, which could destroy vital financial information or precious memories you had intended to share with those you leave behind.

So dust off that will or trust you prepared so long ago and call your estate planner; it’s time that your estate plan caught up with the Internet.

Attorney Victoria Blachly is a fiduciary litigator who has been working on digital asset legislation for six years, testifying before legislators and presenting at seminars throughout the U.S. The issue became very personal to her when she lost a young niece and saw how invaluable her social media was to the grieving family and friends she left behind. Victoria worked closely with one of SYK’s estate planners, Jeff Cheyne, and one of SYK’s business attorneys, Michael Walker, to pursue legislation that was initially hard fought by very large and well-funded online providers.

Blachly’s Article Featured in The American Bar Association Publication

Congratulations to SYK attorney Victoria Blachly.  Her article “Uniform Fiduciary Access to Digital Assets Act: What UFADAA Know” was recently published in Probate & Property, a Publication of the Real Property, Trust and Estate Law Section.

Her article explores the issues that arise when a family member passes away, or becomes incapacitated, in an increasingly paperless society such as our own. Financial accounts, social media, person photographs, what happens to all of these things left behind online?

Arbitration Clauses Binding Upon Account Beneficiaries

From time to time we publish interesting trust and estate cases: 

Citigroup Smith Barney v. Henderson, Oregon Court of Appeals

Decedent opened up an IRA with Citigroup Smith Barney, and under the terms of the IRA agreement, the decedent agreed that all claims “arising from the business of [Citigroup] or otherwise” would be subject to arbitration and that New York law would govern and construe the IRA agreement.


The decedent then completed two forms to designate the beneficiaries of the IRA: the first form designated his personal trust – of which his second wife was the successor trustee – as the beneficiary, and the second form designated the children of the decedent’s first marriage as the beneficiaries. The second form, however, was not dated.


Upon the decedent’s death, Citigroup discovered the conflicting forms and recommended that the beneficiaries resolve the matter among themselves. When the beneficiaries were unable to resolve their competing claims to the IRA, Citigroup moved to deposit the proceeds of the IRA with the court, and moved to obtain an order relieving it of any further liability for the IRA. The trial court granted Citigroup’s motion to interplead the IRA funds, denied its motion to be dismissed, and ordered that the conflicting beneficiaries interplead and litigate any claims in the action.


The decedent’s wife filed an answer and counterclaim, alleging that Citigroup had breached its fiduciary duties to her when it accepted contradictory beneficiary designation. Likewise, the decedent’s children filed an answer and counterclaim alleging that Citigroup had breached its contract to the decedent by failing to properly manage his file and that the children were the intended beneficiaries.


In response, Citigroup filed a motion to compel arbitration of the counterclaims brought by the conflicting beneficiaries, contending that the counterclaims were subject to the arbitration clause in the IRA agreement. The decedent’s wife, in turn, argued that the arbitration clause required arbitration of all claims, including Citigroup’s interpleader action, and thus Citigroup had waived its right to arbitrate when it filed the interpleader action.  The children agreed with the wife’s argument, and in addition claimed that they could not be compelled to arbitrate because they had never agreed to do so. The trial court denied Citigroup’s motion to compel arbitration.


On appeal, Citigroup assigned error to the trial court’s denial of its motion to compel arbitration, arguing that all of the beneficiaries were subject to the arbitration clause and that it did not waive its right to arbitrate upon filing the interpleader action.


Upon recognizing that New York law applied to the IRA agreement pursuant to the Federal Arbitration Act ("FAA"), the court next addressed the issue of whether the children, as third-party beneficiaries, were bound by the arbitration clause in the IRA agreement. Under New York law, a party who has not signed an agreement containing an arbitration clause can be compelled to arbitrate if such party has derived a benefit from the contract or relied upon the contract in asserting a claim. As a result, the children’s claims were subject to the arbitration clause.


Next, the court considered whether the trial court had correctly determined that Citigroup had waived its right to arbitrate. The issue in this case, the court stated, was not how the issue should be resolved, but instead who should decide whether Citigroup had waived its right to arbitrate: an arbitrator or a court. Under the FAA, the issue of which forum should decide a question is a matter of contract interpretation under state law. Where the arbitration agreement is silent as to who should decide issues of waiver, and where the parties’ intent cannot be discerned, the default rule under the FAA is to presume that waiver issues are to be decided by the arbitrator. Moreover, the Supreme Court has recognized that it is presumed that an arbitrator will decide “procedural questions which grow out of the dispute and bear on its final disposition.” 


Here, the IRA agreement provided that it “shall be governed and construed in accordance with the laws of the State of New York.” Under New York law, choice of law provisions that select New York law to govern the enforcement of a contract are distinguished from those that select New York law to govern the contract. That is, a contract that is to be governed by New York law does not express an agreement to have New York law govern the enforcement of the agreement. Here, the IRA agreement did not include the language “shall be enforced,” and thus the parties had not intended that a court decide the issue of waiver. Likewise, because the IRA agreement was silent as to which forum should decide issues of waiver of the arbitration agreement, the court applied the presumption that waiver is an issue of procedural arbitrability that is for the arbitrator, and not the court, to decide. 


In conclusion, the court held that the children’s rights under the agreement were subject to the same limitations as were included in the wife’s IRA agreement, and thus the children were bound by the arbitration clause. Additionally, because waiver is an issue of procedural arbitrability, the issue of whether Citigroup had waived its right to arbitrate was to be left to an arbitrator. 

When Joint Bank Accounts Fail

Taufen v. Estate of Kirpes, 155 Wash App 598, 230 P2d 199 (2010)

Decedent’s estate included a joint checking account which named Decedent and Mr. Yochum as joint owners. Although Decedent made no mention of survivorship when she opened the account, the banker unilaterally elected to add a right of survivorship without discussing the matter with Decedent. Upon Decedent’s death, Mr. Yochum transferred the balance of the account to the estate after he was informed that the money in the joint account belonged solely to Decedent’s estate. Thereafter, he sued the estate for the account proceeds.

In recognizing that the essential issue before the court was whether Decedent intended to create the account with a right of survivorship, the court first acknowledged that there is a rebuttable statutory presumption that funds belonging to a deceased depositor which remain in a joint account with a right of survivorship belong to the surviving depositor unless there is clear and convincing evidence of a contrary intent. When the presumption is overcome, however, it ceases to exist and cannot be further considered.

The court determined that, although the signed account card created a rebuttable presumption of intent to create a right of survivorship, the estate met its burden of production by providing evidence that: 1) Decedent only instructed the banker that she wanted to open up a joint account, 2) Decedent never instructed the banker that there was to be a right of survivorship, 3) It was the banker who elected to create a joint account with a right of survivorship, and 4) the designation of a right to survivorship was never discussed with Decedent. Thus, the statutory presumption of intent disappeared, and judgment was entered in favor of the estate.

LESSON: The presumption of a joint bank account may be overcome with the right evidence.