(This article originally appeared in the Oregon State Bar Elder Law Newsletter, July 2016 edition.)
By Leslie Kay, Attorney at Law, and Bob Joondeph, Attorney at Law
Leslie Kay is the former Regional Director of the Multnomah County Office of Legal Aid Services of Oregon from 2002-2014. She is currently in private practice.
Bob Joondeph is the Executive Director of Disability Rights Oregon.
Appointments of guardians for incapacitated persons raise constitutional due-process rights. When a person is placed in a long term care facility, a mental health treatment facility, or a facility for people with developmental disabilities, at stake are liberty interests that heighten constitutional protections. Absent exigent circumstances, when a guardian places an incapacitated person in a facility without providing statutorily mandated prior notification these due-process rights are violated.
Statements of future intent to place or move
ORS 125.055(2)(h) requires that a statement be included in a petition in a protective proceeding “that indicates whether the nominated person intends to place the respondent in a mental health treatment facility, a nursing home or other residential facility.”
In addition, ORS 125.320 sets out limitations on the powers of an appointed guardian, which include requiring a guardian to file a “statement of intent” with the court when the guardian intends to place or move either an adult protected person or proposed protected person in a mental health treatment facility, a nursing home, or other residential facility. Notice of the statement of intent must be given in the manner prescribed in ORS 125.065 to the persons specified in ORS 125.060(7). Generally these notice provisions for adult protected people call for a 15-day notice period. ORS 125.065(3).
There may be additional issues to be addressed if the placement is outside Oregon. For example, Marion County Circuit Court judgments that appoint guardians require a provision that the protected person cannot be moved out of state without an order of the court. Familiarize yourself with local court rules and practice.
If a guardianship petitioner intends to place a person in a facility, or an appointed guardian intends to move or place a protected person, notice of the filing must be given to among others, the organizations listed below.
Notice to the Long-Term Care Ombudsman and Disability Rights Oregon
If the protected person or respondent is a resident of a nursing home or residential facility, or if the notice states the intention to move a proposed protected person to a nursing home or residential facility, notice of a change of residence is provided to the Office of the Long-Term Care Ombudsman(LTCO). The mission of the ombudsman program is to protect individual rights and to enhance quality of residents living in Oregon’s licensed long term care facilities.
If the protected person or respondent is a resident of a mental-health treatment facility or a residential facility for individuals with developmental disability, or if the notice states the intention to place or move the protected person in such a facility, ORS 125.320 (3)(c) (C) requires notice to the state protection and advocacy system. The currently designated protection and advocacy system in Oregon is Disability Rights Oregon (DRO), a nonprofit organization. DRO promotes opportunity, access, and choice for Oregonians with disabilities. DRO helps its clients seek remedies to violations of civil and legal rights, remedies to prevent or address abuse or neglect, or help in obtaining needed services and supports. DRO monitors guardianship notices and pleadings to assure that the legal rights of a respondent/protected person are upheld in guardianship proceedings. If DRO’s monitoring finds concerns or problems, its staff follows up to investigate. Likewise, the LTCO monitors guardianship notices and pleadings.
After the requisite notice to move or place is provided, the guardian may place an adult protected person without further notice of the court. ORS 125.320(3)(e). The court is only obligated to hold a hearing on the placement if an objection is filed. If a guardian fails to provide pre-notification, counsel for an incapacitated person should write a letter to the guardian or his or her counsel stating that the guardian has not fulfilled the statutory requirement for pre-notifcation. The Long-Term Care Ombudsman or Disability Rights Oregon may also bring this issue to the attention of the court.
The temporary fiduciary provision,ORS 125.600 et. seq., by referencing ORS 125.055, requires a petitioner to notify the court whether the nominated person intends to place the respondent in a mental-health treatment facility, a nursing home, or other residential facility. ORS 125.055(2)(h). The temporary fiduciary statute, however, permits the court to appoint a temporary fiduciary prior to notice to the proposed protected person and other persons or organizations set out in ORS 125.060(3) if the requisite “immediate or serious danger to the life or health” of a respondent requires an immediate appointment.
ORS 125.605(2) is silent whether a placement into a facility can similarly occur prior to notice of the appointment of a temporary guardian. The temporary guardianship provision, however, is arguably not intended to work around the more robust due-process requirements of ORS 125.060. The court will need to make a finding of immediate danger to appoint a temporary guardian without pre-deprivation notice. An eventual objection to the temporary guardianship or placement in a facility prior to notice could trigger a hearing on this finding and the need to reverse a move or placement decision by the temporary guardian. The constitutional limits of a former version of the statute [ORS 126.133 (1973) (amended 1991)] that allowed placement in a mental-health facility without notice or hearing were outlined by an Oregon federal court in Grant v. Johnson, 757 F. Supp 1127(D.OR 1991). Best practice would dictate that, to the extent possible, the 15-day notice period of ORS 125.065(3) be provided to the proposed protected person and persons designated in ORS 125.060 before placement in such a facility is contemplated by a temporary as well as a full guardian.
Office of Long-Term Care Ombudsman
Long-Term Care Ombudsman
3855 Wolverine NE, Suite 6
Salem OR 97305
Disability Rights Oregon
Disability Rights Oregon
511 SW 10th Avenue Suite 200
Portland, OR 97205
503.243.2081 or 800.452.1694
TTY users: dial 711