Elder Law 2013: Basics to Build On - Oregon State Bar … Law 2013: Basics to Build On. ... He was the Senior Law Project Volunteer of the Year in 2005, ... E. Notice to DHS ...

Friday, October 4, 2013 9 a.m.–4:30 p.m.

Oregon Convention Center Portland, Oregon

5.25 General CLE credits and 1 Ethics credit

Cosponsored by the Elder Law Section

Elder Law 2013: Basics to Build On

Elder Law 2013: Basics to Build On ii

ELdEr Law 2013: BasiCs tO BuiLd On

sECtiOn PLannErs

Chair: don B. dickman, Don B. Dickman PC, EugeneGeoff Bernhardt, Law Offices of Geoff Bernhardt, PortlandVictoria d. Blachly, Samuels Yoelin Kantor LLP, Portland

Penny L. davis, Davis Pagnano McNeil & Vigna LLP, PortlandEllen Klem, General Counsel’s Office, Oregon Department of Justice, Salem

steven a. Heinrich, Attorney at Law, CorvallisKay Hyde-Patton, Leahy Van Vactor Cox & Melendy LLP, Springfield

s. Jane Patterson, Attorney at Law, GreshamJ. thomas Pixton, The Pixton Law Group, Lake Oswego

sylvia sycamore, Sylvia Sycamore PC, EugeneMark M. williams, Gaydos Churnside & Balthrop, Eugene

whitney d. Yazzolino, Yazzolino Lohuis & Edgel LLP, Portland

OrEGOn statE Bar ELdEr Law sECtiOn EXECutiVE COMMittEE

Whitney D. Yazzolino, ChairMichael A. Schmidt, Chair-ElectJ. Geoffrey Bernhardt, Past Chair

Erin M. Evers, TreasurerTim McNeil, Secretary

Kathryn M. BelcherVictoria D. BlachlyJason C. Broesder

Don Blair DickmanJan Elana Friedman

Brian HaggertyKay Hyde-PattonStephen R. Owen

Monica D. PachecoJ. Thomas Pixton

Madelynne Diness Sheehan

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2013

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

Elder Law 2013: Basics to Build On iii

taBLE OF COntEnts

1. understanding Medicaid and Long-term Care in Oregon . . . . . . . . . . . . . . . . . . . 1–i— Michael J. Edgel, Yazzolino Lohuis & Edgel LLP, Portland, Oregon— Julie E. Lohuis, Yazzolino Lohuis & Edgel LLP, Portland, Oregon

2a. 1915(k) state Plan Option in Oregon—Presentation slides . . . . . . . . . . . . . . . . . . 2A–i— Jane-ellen weidanz, Manager, Medicaid Long-Term Care Systems Group, Oregon

Department of Human Services, Aging and People with Disabilities, Salem, Oregon

2B. affordable Care act summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B–i— dale Marande, Manager, Financial Eligibility and Waiver Group, Oregon Department of

Human Services, Aging and People with Disabilities, Salem, Oregon

3. dementia: indications, diagnosis, and stages—Presentation slides . . . . . . . . . . . . . 3–i— shelly svoboda, Md, The Corvallis Clinic, Corvallis, Oregon

4. diminished Capacity and Legal Ethics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–i— tim Mcneil, Davis Pagnano McNeil & Vigna LLP, Portland, Oregon

5a. appointing representatives and agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–i— Kathi d. Holmbeck, James & Holmbeck LLC, Grants Pass, Oregon

5B. POLst and advance Care Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–i— amy Vandenbroucke, National POLST Paradigm Program, Portland, Oregon

6. Legislative update . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–i— Michael a. schmidt, Schmidt & Yee PC, Aloha, Oregon

Elder Law 2013: Basics to Build On iv

Elder Law 2013: Basics to Build On v

sCHEduLE

9:00 Basic Medicaid

F Establishing eligibility—disability, income, and resourcesF Post-eligibility planning issues—the estate plan and the houseF Estate recovery

Michael J. Edgel, Yazzolino Lohuis & Edgel LLP, PortlandJulie E. Lohuis, Yazzolino Lohuis & Edgel LLP, Portland

10:15 Break

10:30 affordable Care act: the impact in Oregon on seniors and People with disabilities

F Affordable Care Act eligibility changesF State Plan K changes to Oregon’s long-term care systemF Upcoming changes to home and community-based care services

Jane-ellen weidanz, Manager, Medicaid Long-Term Care Systems Group, Oregon Department of Human Services, Aging and People with Disabilities, SalemDale Marande, Manager, Financial Eligibility and Waiver Group, Oregon Department of Human Services, Aging and People with Disabilities, Salem

11:15 dementia: it’s not Just alzheimer’s disease

F Types of dementia—how they present and progressF Talking to doctors about dementiaF How dementia is diagnosedF How neurologists treat dementia and its ancillary symptoms

Shelly svoboda, Md, The Corvallis Clinic, Corvallis

12:15 Lunch

1:15 Elder Law section annual Meeting

1:30 diminished Capacity and Legal Ethics

F Determining capacityF Responsibilities to new and existing clientsF Payment issues

Tim Mcneil, Davis Pagnano McNeil & Vigna LLP, Portland

2:30 Planning documents

F Appointing representatives and agents (POAs and more)F Access to accountsF How POLST fits into advance care planning

Kathi d. Holmbeck, James & Holmbeck LLC, Grants PassAmy Vandenbroucke, National POLST Paradigm Program, Portland

3:30 Break

Elder Law 2013: Basics to Build On vi

3:45 Legislative updateF ORS 125—attorney fee changesF Amendments to the Uniform Trust CodeF Professional fiduciary certificationF Elder abuse reporting by attorneysMichael a. schmidt, Schmidt & Yee PC, Aloha

4:30 adjourn

sCHEduLE (Continued)

Elder Law 2013: Basics to Build On vii

FaCuLtY

Michael J. Edgel, Yazzolino Lohuis & Edgel LLP, Portland. Mr. Edgel’s practice emphasizes elder law and long-term care planning, special needs trusts and settlement planning, general estate planning, and the related areas of probate/trust administration, guardianships, and conservatorships. Prior to attending law school, Mr. Edgel gained experience working with seniors and people with disabilities while earning a Master’s degree in social work. During law school, he added a financial perspective to his background working as a securities broker for Charles Schwab, Inc. He is the author of numerous articles and continuing legal education materials, and he frequently speaks to attorneys, financial professionals, and caregivers on topics of interest to seniors and people with disabilities. Mr. Edgel is fluent in Spanish and has served as an interpreter in various settings, including Colorado courts.

Kathi d. Holmbeck, James & Holmbeck LLC, Grants Pass. Ms. Holmbeck’s practice emphasizes elder law, including guardianships, conservatorships, estate planning, probate, and trust administration. She also handles business and commercial issues, landlord and tenant, general civil, nonprofit, and consumer matters. She is a member of the Oregon State Bar Elder Law, Estate Planning and Administration, and Nonprofit Organizations Law sections and is a past member of the Elder Law Section Executive Committee. Ms. Holmbeck is a pro tem judge for Josephine County and a past officer of the Josephine County Bar Association.

Julie E. Lohuis, Yazzolino Lohuis & Edgel LLP, Portland. Ms. Lohuis started her legal career working as a staff attorney at Legal Aid Services of Oregon, where she assisted her clients with maintaining eligibility for essential housing and medical benefits. Working with seniors on Medicaid issues inspired her to further specialize in elder law. Ms. Lohuis’s expertise includes estate planning and administration, protective proceedings, special needs planning, Medicaid, and planning for long-term care. She serves as the president of the Queen’s Bench, the Portland chapter of Oregon Women Lawyers. She is also a member of the Oregon State Bar Estate Planning and Administration and Elder Law sections and the National Academy of Elder Law Attorneys. Ms. Lohuis has presented at continuing legal education events on topics including Medicaid and Income Cap Trusts.

dale Marande, Manager, Financial Eligibility and Waiver Group, Oregon Department of Human Services, Aging and People with Disabilities, Salem. Mr. Marande has been employed for 27 years at the Department of Human Services as a line manager, trainer, program analyst, and manager. He holds a BS in Natural Resources from the Ohio State University.

tim Mcneil, Davis Pagnano McNeil & Vigna LLP, Portland. Mr. McNeil’s practice encompasses all of the basic elements of elder law, including long-term care and estate planning, guardianship and conservatorship, and probate. In addition, he represents minor children in contested custody cases at the request of the court. He was the Senior Law Project Volunteer of the Year in 2005, and he is a frequent speaker at elder law–related CLE seminars.

shelly svoboda, Md, The Corvallis Clinic, Corvallis. Dr. Svoboda is board-certified in neurology/psychiatry. She currently practices at the Corvallis Clinic in Corvallis and Albany. Dr. Svoboda is a graduate of the University of Kansas Medical School.

Michael a. schmidt, Schmidt & Yee PC, Aloha. Mr. Schmidt practices in the areas of wills, trusts, probate, conservatorships and guardianships, powers of attorney, and Medicaid planning. He is a past president of the Washington County Council on Aging, Inc., a member and past president of the Oregon Guardianship/Conservatorship Association, chair-elect of the Oregon State Bar Elder Law Section, and a member of the Oregon State Bar Estate Planning and Administration Section.

Elder Law 2013: Basics to Build On viii

amy Vandenbroucke, National POLST Paradigm Program, Portland. Ms. Vandenbroucke served as in-house counsel for Oregon Health & Science University for over five years before leaving to become the Executive Director for the National POLST Paradigm Program in 2013. She is chair of the Oregon POLST Task Force, a member of the Oregon POLST Registry Advisory Committee, and Associate Director for the Center for Ethics at OHSU.

Jane-ellen weidanz, Manager, Medicaid Long-Term Care Systems Group, Oregon Department of Human Services, Aging and People with Disabilities, Salem. As the Medicaid Long-Term Care System Manager, Ms. Weidanz is responsible for the Medicaid Long-Term Care System, including APD’s eligibility rules, service options, mental health services, and APD payment policy. She has worked on health and human service issues since 1991. She implemented the Medicare Prescription Drug program for DHS, served as a liaison to the legislature, staffed advisory councils, and stakeholder groups, and implemented major system change efforts for APD and the mental health system.

FaCuLtY (Continued)

Chapter 1

understanding Medicaid and Long-term Care in Oregon

Michael J. edgel

Yazzolino Lohuis & Edgel LLPPortland, Oregon

Julie e. lohuis

Yazzolino Lohuis & Edgel LLPPortland, Oregon

Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1

II. Establishing Eligibility: Disability, Income, and Resources . . . . . . . . . . . . . . . . . . . . 1–2A. Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2B. Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3C. Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–6

III. Post-Eligibility Planning Issues: The Estate Plan and the House . . . . . . . . . . . . . . . . 1–11A. The Estate Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–11B. The House . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–12

IV. Estate Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–12A. Not a Lien. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–13B. Scope of Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–13C. Limits of Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–14D. Hardship Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–14E. Notice to DHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–14F. Funeral Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–14

AppendixesA. Sample Irrevocable Living Trust Agreement Income Cap Trust . . . . . . . . . . . . 1–15B. ORS 114.600–114.725, Elective Share for Decedents Who Die On or After January

1, 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–23C. Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–31

Chapter 1—Understanding Medicaid and Long-Term Care in Oregon

Elder Law 2013: Basics to Build On 1–ii


Elder Law 2013: Basics to Build On 1–1

i. intrOduCtiOn

A basic understanding of Medicaid is important for attorneys advising elderly or disabled clients. Medicaid is a health insurance program that provides medical insurance to aged, blind, and disabled individuals, as well as families with dependent children whose income and resources are insufficient to meet the costs of necessary medical services. Since Medicaid was originally enacted, Congress has expanded coverage to other groups of people including children and pregnant women. Medicaid now covers the majority of the nation’s long-term care costs. More recently, Medicaid is experiencing a new expansion through the enactment of the Affordable Care Act.

Medicaid is joint program funded and administered through a partnership between the state and federal governments. The Centers for Medicare & Medicaid Services (CMS) is the federal agency charged with working with states to administer Medicaid services. Oregon is one of 48 states that operate their Medicaid program under a waiver allowed by section 1915(c) of the Social Security Act. This waiver allows the state of Oregon to offer community-based long-term care services with the goal of enabling eligible individuals to remain in the least restrictive and least costly setting consistent with their service needs. OAR 461-015-0000. Community-based care in Oregon includes adult foster care, assisted living facilities in-home services, residential care facilities, specialized living facilities, and independent choices. OAR 461-001-0000(17).

Recently, Oregon announced that CMS has approved Oregon’s request to expand home- and community-based services for seniors and people with physical and developmental disabilities. The approval of Oregon’s Community First Choice Option, or K plan, will give Oregon authority to expand community-based services. A copy of the amended K plan can be found at http://www.oregon.gov/dhs/k-plan/Pages/index.aspx. It appears that the K plan will allow for expanded in-home support services.

Medicaid covers a wide variety of services and has a variety of program names in Oregon. For example, the Oregon Health Plan (OHP) provides important health insurance for Supplemental Security Income (SSI) recipients, children, disabled adults, and pregnant women. Another Medicaid program, Oregon Supplemental Income Program Medical (OSIPM), assists individuals with long-term care costs. Although the different Medicaid programs share many basic eligibility requirements, there are important differences between them. These materials will focus on individuals who are in need of assistance with long-term care, otherwise referred to as OSIPM.

Congress established Medicaid as Title XIX of the 1965 Amendment to the Social Security Act. Title XIX of the Social Security Act is found in 42 USC Chapter 7. A good reference for exploring the Social Security Act is the Compilation of the Social Security Laws found at http://www.ssa.gov/OP_Home/ssact/ssact.htm. The website is easy to use and includes citations to the Social Security Act and to Section 42 of the United States Code.

ORS Chapter 411 is the enabling statute that gives the Oregon Department of Human Services the authority to administer and supervise all public assistance programs and to set eligibility rules for those programs. The administrative rules that primarily govern the eligibility standards for Medicaid are found throughout Oregon Administrative Rules (OAR) chapter 461. Within chapter 461, divisions 110, 115, 135, 140, 145, and 160 contain the majority of the Medicaid eligibility rules. Divisions 001 and 101 of chapter 461 also provide helpful definitions and acronyms used throughout all the eligibility rules. OAR chapter 411, division 015, also contains important eligibility requirements related to disability.

Practice tiP: The best way to stay informed regarding the frequent changes in the administrative rules is to sign up to receive notices of temporary and permanent rulemaking for chapters 461 and 411. This can be done through the Department of Human Services website or by contacting Annette Tesch at [email protected]. The notices

http://www.oregon.gov/dhs/k-plan/Pages/index.aspx

http://www.oregon.gov/dhs/k-plan/Pages/index.aspx

http://www.ssa.gov/OP_Home/ssact/ssact.htm

http://www.ssa.gov/OP_Home/ssact/ssact.htm



arrive in email format, and there is a summary on page 1 of the notice listing the rules that are affected by the action.

ii. EstaBLisHinG ELiGiBiLitY: disaBiLitY, inCOME, and rEsOurCEs

Individuals who need assistance with long-term care costs (OSIPM) must qualify under three eligibility tests in order to receive assistance from Medicaid in Oregon. Those three eligibility tests include disability, income, and resources. In the following discussion of the eligibility tests, all references to “Medicaid” refer to OSIPM program requirements.

a. disability

The Medicaid application process should be completed within 45 days. During this time period, the caseworker assigned to assess eligibility will visit the applicant and evaluate the need for long-term care based on the applicant’s disabilities. This assessment is sometimes called the CAPS assessment. The assessment reviews activities of daily living, which include eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination, and cognition/behavior. OAR 461-015-0006(1). The assessment only evaluates how the applicant functioned during the thirty days prior to the assessment date and how the applicant is likely to function in the thirty days following the assessment date. OAR 461-015-0006(2)(b).

Practice tiP: Although the time frame is thirty days prior to the assessment date and thirty days looking forward, evidence of how the applicant functioned without support from caregivers can and should be considered. When assessing cognition, the caseworker should consider how the individual would function without supports. OAR 461-015-0006(5)(a). A common example of this is when an applicant moves into a foster home two months prior to the assessment and has improved due to assistance he or she is receiving from a care provider in the home. Information about how the applicant was functioning in the home prior to the move is important evidence regarding the applicant’s need for care related to cognition. For example, weight loss due to skipping meals is evidence of lack of judgment because the applicant no longer has insight into his or her health and safety needs. Leaving burners on after every meal is evidence of lack of memory because he or she needs prompting from a caregiver to turn off the burners.

Activities of daily living are defined at OAR 461-015-0006. Some of the activities of daily living are broken down into subcategories. For example, cognition includes eight different categories: adaptation, awareness, judgment/decision-making, memory, orientation, demands on others, dangers to self or others, and wandering. Within each of these categories an individual is assessed as being either an assist or a full assist. The use of assist and full assist is consistent throughout the activities of daily living except in the area of mobility. Within mobility, the subcategory of ambulation has three different possibilities: minimal assist, substantial assist, and full assist. During the assessment, the caseworker assigns a need for assistance to each activity of daily living. The different need levels are combined and the CAPS computer program gives the applicant a score, also called a service priority level.

The classification of an activity of daily living is important because a slight change can influence the service priority level assigned to the individual. There are 18 possible service priority levels that can be assigned and currently only levels 1–13 are eligible for long-term care services. OAR 411-015-0015(1). Levels 1–13 include the following:

(1) Requires Full Assistance in Mobility, Eating, Elimination, and Cognition.

(2) Requires Full Assistance in Mobility, Eating, and Cognition.

(3) Requires Full Assistance in Mobility, or Cognition, or Eating.

(4) Requires Full Assistance in Elimination.



(5) Requires Substantial Assistance with Mobility, Assistance with Elimination and Assistance with Eating.

(6) Requires Substantial Assistance with Mobility and Assistance with Eating.

(7) Requires Substantial Assistance with Mobility and Assistance with Elimination.

(8) Requires Minimal Assistance with Mobility and Assistance with Eating and Elimination.

(9) Requires Assistance with Eating and Elimination.

(10) Requires Substantial Assistance with Mobility.

(11) Requires Minimal Assistance with Mobility and Elimination.

(12) Requires Minimal Assistance with Mobility and Assistance with Eating.

(13) Requires Assistance with Elimination.

Individuals who require assistance with only bathing and dressing are no longer covered because they are ranked at levels 16 and 17. For this reason, it is very important to accurately report the need for care in mobility, eating, elimination, and cognition at the assessment.

Practice tiP: It is common that an individual, because of embarrassment or memory loss, underreports care needs. If you believe this may occur, consider having a family member or care provider who is familiar with the actual care needs present at the assessment. The family member or care provider can provide supplemental information to the caseworker if the applicant is unable to speak accurately. This can often prevent the needless denial of services.

The caseworker completes a disability assessment annually, even after the initial approval for Medicaid benefits. If the caseworker denies benefits based on a service priority level, it is a good idea to immediately request and review a copy of the CAPS assessment. If the client chooses to appeal a disqualification and is currently receiving benefits, they have only 10 days to request “aid paid pending.” Aid paid pending allows the individual to continue receiving benefits pending the outcome of the appeal and can be very important in maintaining continuity of coverage during the appeal. The risk of requesting aid paid pending is that the individual has to repay benefits received from the date of disqualification if the appeal is not successful. If aid paid pending is not requested there are only 45 days to request an appeal. Appeals are handled through the Office of Administrative Hearings.

B. income

The second test for Medicaid eligibility is income. In order to qualify for Medicaid services in Oregon, an individual must have income that is at or under 300% of the SSI standard. OAR 461-135-750. Three hundred percent of the SSI standard is referred to as the “income cap” and is currently set at $2,130. The income cap is adjusted each year. The current cap is published on the Elder Law Section page of the Oregon State Bar website at http://www.osbar.org/sections/elder/elderlaw.html. If an individual has income over the income cap, he or she can qualify for Medicaid by creating an income cap trust. OAR 461-145-0540.

1. income defined. For Medicaid purposes, all assets are divided into two general categories: income and resources. When deciding if an income cap trust is necessary, the first step is to correctly identify all assets that are income. There is no general definition of income in the Oregon Administrative Rules. Instead division 145 of chapter 461 lists specific types of assets and classifies the particular asset as either a resource or income.

The definitions often classify income as both earned and unearned. For purposes of the income cap, this distinction is not important because both sources of income are counted toward the income cap.

http://www.osbar.org/sections/elder/elderlaw.html



Practice tiP: Clients often do not accurately identify their income. A better practice is to have the client to break down his or her source of income by type and frequency of receipt. Clients often identify resources such as IRAs as income, since they receive regular monthly or yearly distributions. However, under the relevant rules, IRAs are correctly classified as a resource and the required minimum distributions do not count toward the client’s income.

2. income Cap trust. If the gross income exceeds $2,130 per month, an income cap trust is required in order for the client to qualify for Medicaid. Keep in mind that you must consider gross income, not net income. A client can be under the $2,130 income cap after taxes and deductions of health insurance premiums but still require an income cap trust because the gross income is over $2,130. A sample income cap trust published by the State of Oregon is attached as Appendix A.

a. Va aid and attendance Benefits Excluded. Generally, an income cap trust is necessary if the client’s gross income exceeds the income cap. The gross income should include all income sources. However, veterans’ benefit payments are excluded from gross income when determining eligibility for long-term care of Title XIX waivered services. OAR 461-145-0580(2)(a)(A). If the veterans’ benefit payment puts the client over the income cap, then an income cap trust is not necessary. The client does not get to keep the entire veterans’ benefit payment and still contributes to the cost for care each month.

b. the distribution Plan. The content of the income cap trust is fairly straightforward. The bulk of the work in drafting an income cap trust comes in calculating the distribution schedules, which lay out a specific budget for how the income cap trustee is to spend the Medicaid recipient’s income each month. The distribution schedules should include the following.

i. Personal needs allowance. Nursing home residents receive only $30 of their monthly income for personal needs allowance. The amount has not changed for many years. Clients in community based care currently receive $157.30 per month. The personal needs allowance for community-based care is indexed up yearly. A client who receives veterans’ benefits is allowed a $90 per month personal needs allowance. OAR 461-160-0620(3)(c)(B).

ii. room and Board. Nursing home residents do not pay room and board. Clients in community-based care currently pay $552.70 per month. This amount is indexed up yearly. It is important to identify if the client is receiving skilled nursing care or community-based care because clients may not understand the distinction.

iii. reasonable administrative Costs. Administrative costs allowed in an income cap trust include trustee fees, reserve for administrative fees including bank service charges, copy charges, postage, accounting and tax preparation fees, future legal expenses, income taxes attributable to trust income, and conservatorship and guardianship fees and costs. However, the reasonable administrative costs may not exceed a total of $50 per month. Practically speaking, this is usually included on the distribution schedule as a trustee fee of $50 per month. It is almost impossible to allow other administrative costs since the cap of $50 is so low.

iv. Community spouse and Family Monthly Maintenance needs allowance. The “community spouse” is the term used to refer to the spouse who is not receiving Medicaid benefits and is living independently. The community spouse is guaranteed a minimum monthly maintenance needs allowance (MMMNA) of $1,939. The department can increase this amount to $2,898 if the community spouse has high shelter costs. These minimum and maximum monthly maintenance needs allowances are indexed up annually. If the community spouse’s income is under the MMMNA, then the income from the Medicaid client is transferred to the community spouse each month.

exaMPle: Santiago has moved to a foster home and needs assistance with his care costs. Santiago has gross income of $3,400 per month. Santiago’s income includes Social Security



and two different pensions. Santiago’s wife, Michelle, is living in the home and has Social Security income of $900 per month. Michelle has monthly expenses exceeding $1,939 per month due to a mortgage on the home and high prescription costs for her medications. A review of her monthly expenses shows that she needs at least $2,898 per month to pay her bills. The income cap trust should include a deduction for community spouse monthly maintenance needs allowance of $1,998 per month. $1,998 + $900 = $2,898 (the maximum monthly maintenance needs allowance). Do not automatically assume that the community spouse only needs the minimum amount of $1,939 per month. Increasing the community spouse allowance to an appropriate amount can significantly improve the quality of life for the community spouse.

v. Medicare and Other Private Medical insurance Premiums. The Medicaid client can deduct health insurance premiums for Medicare and supplemental health insurance premiums. Most clients have a supplemental private policy in addition to the Medicare coverage. Medicaid allows the trust to pay the Medicare and supplemental health insurance premiums for the community spouse as well.

continued exaMPle: Santiago and Michelle both have a supplemental Medicare insurance policy that costs $140 per month each. Santiago has sufficient income to pay both premiums out of his income. Santiago’s income cap trust can also pay his Medicare part B premium of $110 per month and Michelle’s part B premium of $110 per month.

vi. Other incurred Medical Costs. The income cap trust can pay for medical costs allowed under OAR 461-160-0030 and 461-150-0055. The costs that can be deducted include medical and dental care, psychotherapy, rehabilitation services, hospitalization, outpatient treatment, prescription drugs and over-the-counter medications, medical supplies and equipment, dentures, hearing aids, prostheses, and prescribed eyeglasses. The income cap trust can also cover private pay costs of community-based care and nursing home care. Generally, most medical expenses are covered by this rule. If the medical expenses cannot be paid off in one month, the schedules should allow for installment payments over as many months necessary in order to pay off the medical bills in full.

vii. Contributions to reserves for Child support, alimony, and income taxes. If the client has child support or alimony obligations, this should also be deducted from the gross income. Income taxes can also be deducted, especially if automatically withheld from the income source.

viii. Monthly Contributions to reserves of Payments for the Purchase of an irrevocable Burial Plan. The department recently changed the administrative rules to limit the value of the irrevocable burial plan purchased with funds from an income cap trust to $5,000. OAR 461-145-0540(9)(c)(G).

Practice tiP: If the client is considering the purchase of an irrevocable funeral plan valued over $5,000, the client should purchase that plan as part of the spend-down prior to the creation of the income cap trust. If the irrevocable plan is under $5,000, it is better practice to include it as part of the income cap trust. This will free up funds for the client to use on other needs during the spend-down period.

ix. Contributions for Home Maintenance. The income cap trust can make contributions to a reserve or payments for home maintenance if the client plans to return to the home. In order to make deductions for this expense, the client must meet the criteria found in OAR 461-155-0660 or OAR 461-160-0630. OAR 461-160-0630 allows a home maintenance deduction for up to six months if a physician has documented that the client is likely to return home within six months, the amount of the deduction is reasonable in relation to the applicable shelter standard, and the department determines that maintaining the home is an essential part of the plan for the client’s relocation to a less restrictive living situation.



This test is more restrictive than the test used when determining whether or not the home can be excluded as a resource. In order to exclude the home as a resource, the client only needs to have a subjective intent to return to the home. Therefore, you can have a situation where the home is excluded as a resource because the client intends to return after a temporary absence but a maintenance deduction is denied because lack of documentation from a physician. It is not clear if this strict standard is lawful. Oregon can be no more restrictive than the SSI program with its rules regarding eligibility. 42 USC §1396a(r)(2)(A).

c. tax identification number. There is no clear rule as to whether or not a taxpayer identification number is required for an income cap trust. Some practitioners obtain a tax identification number because banks require the number for irrevocable trusts. Having a number for the income cap trust can assist the trustee when working with bank representatives to open the account. Other practitioners do not obtain a tax identification number because an income cap trust is a grantor trust and the income cap trust account should use the beneficiary’s Social Security number. Banks vary on requirements for income cap trust.

C. resources

The third and most complicated eligibility test for Medicaid eligibility in Oregon is the resource test. These materials will cover how to determine basic resource eligibility under the Oregon administrative rules. For more advanced planning techniques, please review the materials from the 2008 Oregon State Bar CLE seminar titled Elder Law 2008: Advancing the Plan.

The first step in determining eligibility under the resource rules is to calculate the amount of available resources. Medicaid rules separate “available” resources from “excluded” resources. Excluded assets are not considered when a client’s eligibility and benefits level are determined. OAR 461-140-0010. It is helpful to understand what resources to exclude first, since this list is shorter and fairly straightforward. Once you know what resources to exclude, all other resources are considered available and count toward eligibility.

1. Excluded resources. If an asset is excluded, the applicant, or the applicant’s spouse, may keep the asset and still qualify for Medicaid. The following resources are excluded.

a. the Home. The home is not counted for Medicaid eligibility purposes if the client or the spouse of the client occupies the home and the equity in the home is $536,000 or less. OAR 461-145-0220(2)(a)(B). Generally speaking, the tax assessed value of the home can be used to determine the equity of the home. In recent months, where equity values have fallen below the tax assessed value, a comparative market analysis or professional assessment could be used to show a value of under $536,000.

A home can now be counted as a resource if the client has equity in the home of more than $536,000, unless one of the following requirements is met:

i. The spouse of the client occupies the home;

ii. The child1 of the client occupies the home;

iii. The client is legally unable to convert the equity value in the home to cash;

iv. The home equity is excluded under OAR 461-145-0250 (rule for income-producing property).

Even if over $536,000 in value, the exceptions to the home equity rule are broad enough to allow exclusion of the entire equity value in most cases. However, this rule should be monitored for future changes, as the equity limit is relatively new.

1 OAR 461-145-0220 has a narrow definition of “child.” A child in this section of the rule means a biological or adoptive child who is under the age of 21 or a child who is disabled according to Social Security criteria.



Next, the home is also excluded if the client is absent to receive care in a medical institution and he or she provided evidence that he or she will return to the home. OAR 461-145-0220(3)(c)(A). The evidence must reflect “the subjective intent of the client, regardless of the client’s medical condition.” A letter from a doctor is not necessary, and a written statement from a competent client is sufficient to prove the requisite intent. This subjective standard directly contradicts the objective standard for the income cap trust deduction discussed above.

The home may also be excluded if the client is temporarily absent to receive care in a medical institution and the home is occupied by the client’s spouse, child, or relative dependent on the client for support. OAR 461-145-0220(3)(c)(B). The child must be less than 21 years of age or, if over the age of 21, blind or an individual with a disability as defined by SSA criteria.

Finally, the value of the home is excluded pending the sale of the home. The client needs to make a good faith effort to sell the home at fair market value.

Practice tiP: Although Oregon’s real estate market is improving, it is not uncommon for clients to go on Medicaid pending the sale of the residence. Upon the sale of the property, the department may request payment of its claim for benefits provided to the Medicaid recipient. This is a voluntary payment, and the department has no claim until the death of the client and the client’s spouse. Some title companies include the claim in the closing statements and identify it as a “lien.” The claim is not a lien and repayment is completely voluntary. Most clients choose to take control of the sale proceeds and defer payment of any claim until after their death.

b. the Car. The value of one car is excluded from the resource calculation. The total value of the vehicle is excluded if “used for employment or necessary and continuing medical treatment.” OAR 461-145-0360. This definition is interpreted broadly. Medicaid caseworkers generally automatically exclude the value of one car during the resource assessment. If a client has two cars, Medicaid allows the client to exclude the value of the more expensive car.

c. Burial Plans. The value of an irrevocable burial plan is excluded, regardless of the value. An exception to this is if the plan is purchased after Medicaid eligibility and is paid for through an income cap trust deduction. If this is the case, the plan is limited to $5,000. For this reason, if the client is considering a more expensive irrevocable plan, he or she should purchase the plan prior to Medicaid eligibility. Clients can convert a revocable burial plan to an irrevocable burial plan. This is often done during the Medicaid application process.

If a client does not wish to purchase a plan, he or she can set aside up to $1,500 as a burial fund in a separate account. OAR 461-145-0040(3)(a)(D). A burial fund for up to $1,500 can also be established for the client’s spouse.

Burial space and burial merchandise are also excluded resources. OAR 461-145-0050. The burial space can be designated for the client, the spouse, children, siblings, parents, and the spouse of any of these people.

d. Personal Property. Personal belongings are excluded resources. OAR 461-145-0390. Personal belongings include household furnishings, clothing, heirlooms, keepsakes, and hobby equipment. There is no limit on the value of personal property that is excluded. Older administrative rules limited the value of personal property to $2,000.

e. term Life insurance. All term life insurance that has no cash surrender value is excluded. OAR 461-145-0320. Clients are often unaware of the difference between the face value and the cash value of the life insurance policy. This should be clarified as quickly as possible to avoid creating a period of ineligibility due to excess resources from cash value on life insurance.



f. Other Circumstances. Resources are also considered unavailable in the following circumstances:

i. The client has a legal interest in the resource but the resource is not in the client’s possession and the client is unable to gain possession of it;

ii. The resource is jointly owned with others not in the financial group who are unwilling to sell their interest in the resource and the client’s interest is not reasonably saleable;

iii. The client verifiably lacks the competence to gain access to or use the resource and there is no legal representative available to act on the client’s behalf;

iv. The client is a victim of domestic violence and attempting to use the resource would subject the client to risk of domestic violence or the client is using the resource to avoid the abusive situation;

v. The resource is included in an irrevocable or restricted trust and cannot be used to meet the basic monthly needs of the financial group. OAR 461-140-0020(2).

These circumstances should always be reviewed in cases where the client does not have access to funds. For example, Medicaid eligibility can be established during the time a conservatorship is in process in order to gain access to assets the client is incapable of managing. This rule may also be applicable in cases of elder abuse when the money has been unlawfully transferred to an abuser.

Finally, resources are not considered available during the time the owner does not know he or she owns the resource. OAR 461-140-0020(3). This rule is important when clients, in good faith, forget about the existence of a resource. This is not uncommon if a client has declining capacity and does not accurately report all assets to a caseworker.

2. available resources. An asset that is not excluded is countable, and its value is used in determining the eligibility and benefit level of a client. OAR 461-140-0010(6). To determine the total amount of available resources, add up all available resources as of the date continuous care started. The total amount of available resources as of the date continuous care started is then used to determine the total amount of resources the client can keep. The resource test for unmarried individuals is different than the resource test for married couples.

a. unmarried Clients. An unmarried applicant is subject to a resource limit of $2,000. OAR 461-160-0015(4)(a). This amount has not changed for many years, and previous CLE materials are helpful in describing how an unmarried applicant can permissibly spend down his or her resources to reach the $2,000 limit.

b. Married Clients. Congress enacted the Medicare Catastrophic Coverage Act of 1988 in part to protect the community spouse from impoverishment. This law protects the healthy/community spouse from impoverishment by allowing the community spouse to retain his or her own income and also an increased amount of resources. The amount of resources the community spouse can maintain is referred to as the community spouse resource allowance (CSRA).

i. resources of Community spouse. Medicaid uses a formula found at OAR 461-160-0580 to determine the amount of resources a community spouse is allowed to maintain. The first step in determining the community spouse resource allowance is to determine the total amount of available/countable resources for both spouses as of the first date of continuous care. The second step is to divide this amount in half. The third step is to see if this amount is subject to the minimum or maximum resource allowance. The current maximum resource allowance is $115,920. The current minimum resource allowance is $23,184. These numbers are indexed up annually. This formula is best understood through examples.



exaMPle 1: Salvador and Isabel have $100,000 in available resources as of the date Salvador enters a nursing facility. Half of $100,000 is $50,000. $50,000 is more than $23,184 and less than the maximum of $115,920, so the community spouse resource allowance is $50,000. Isabel will need to spend down $48,000. Salvador will be eligible for Medicaid when Isabel has $50,000 in her name. Salvador can retain $2,000 in his name.

exaMPle 2: Diego and Frida have $300,000 in available resources as of the date Frida enters a foster care home. Half of $300,000 is $150,000. $150,000 is over the maximum allowed, so Diego is allowed a community spouse resource allowance of $115,920. Diego and Frida will need to spend down $182,080 (the difference between $300,000 and $115,920 minus $2,000). Frida will be eligible for Medicaid when Diego has $115,920 in his name. Frida can retain $2,000 in her name.

exaMPle 3: Nestor and Cristina have $30,000 in available resources as of the date Nestor enters an assisted living facility. Half of $30,000 is $15,000. This is under the minimum amount required, so Cristina is allowed a community spouse resource allowance of $23,184. Nestor and Cristina will need to spend down $4,616 (the difference between $30,000 and $23,184 minus $2,000). Nestor will be eligible for Medicaid when Cristina has $23,184 in her name. Nestor can retain $2,000 in his name.

Practice tiP: The above examples assume that we have neatly moved joint assets into separate ownership between the community spouse and the Medicaid spouse by the time Medicaid benefits start. In reality, this is not usually the case. The spend-down process can be messy and traumatic for couples, and often assets are still jointly owned at the time of the Medicaid application. The ill spouse can still go onto Medicaid at this point. Simply point out to the caseworker that the total resources in the bank accounts are the community spouse resource allowance plus the $2,000 for the Medicaid spouse. OAR 461-160-0580(3) states that the client and/or the client’s spouse have 90 days to finish transferring the community spouse resource allowance to the community spouse’s name. The 90 days can be extended for good cause. An example of good cause is a court-ordered transfer of resources through a conservatorship.

ii. income of Community spouse. The income of the community spouse is not counted when determining eligibility for an institutionalized spouse. However, the income of the community spouse is relevant to the total amount of resources the community spouse can retain.

It is possible to increase the amount of resources the community spouse can retain above the community spouse resource allowance. This is important in situations where the community spouse resource allowance is not sufficient to support the community spouse. To determine whether or not the community spouse can keep additional resources, we have to apply the “income-first rule.” Currently, federal law mandates that the states apply the income-first rule to agency calculations. Whether or not the income-first rule must be applied to court order is an open question that is unresolved in Oregon. The State of Oregon is currently requiring the use of the income-first rule in all court orders to increase the community spouse resource allowance. These authors are unaware of any successful challenges to this policy.

iii. the income-First rule and increasing the Csra. The community spouse’s income is not subject to any cap when determining eligibility for an ill spouse. However, it is subject a minimum amount in order to avoid spousal impoverishment. Currently, the minimum monthly maintenance needs allowance (MMMNA) is $1,939. OAR 461-160-0620. This amount can be increased up to $2,898 through agency approval, without the need for a court order. You can increase the monthly maintenance needs allowance above $2,898 with a court order. If you run out of income, then you can shift additional resources, effectively increasing the community spouse resource allowance.



incoMe-First rule exaMPle 1: Juan enters a nursing facility with an income of $1,900. Eva has income of $700 per month. Juan keeps $30 per month for his personal needs allowance and pays a health insurance premium of $60 per month, leaving $1,810 available to deem to Eva. Juan moves $1,239 of his income each month to Eva in order to bring her income up to the monthly maintenance needs allowance of $1,939 ($1,239 + $700 = $1,939). Juan pays his remaining $571 to the nursing facility each month as his “patient liability.”

incoMe-First rule exaMPle 2: Same facts as above except that Eva has a mortgage of $1,000 per month. She also has high prescription costs to manage her own health care needs. A review of her monthly expenses shows that she needs at least $2,510 per month to meet her basic needs. In this case, Juan moves all of his remaining income of $1,810 to Eva each month. This brings Eva’s income up to $2,510 each month, and Juan no longer has a patient liability. Juan and Eva do not need a court order to accomplish this transfer of income.

incoMe-First rule exaMPle 3: Same facts as above except that Eva now has monthly costs of $2,700 per month. If Juan moves all of his remaining available income of $1,810 per month, Eva’s income of $2,510 is still not enough to meet her monthly expenses. Eva has a previously set community spouse resource allowance of $90,000, based on $180,000 in available resources as of the date Juan entered continuous care. The department calculates that this amount of resources will generate $52.50 in additional income per month, brining Eva’s monthly income to $2,562.50 per month.2 There is still a deficit of $137.50 per month ($2,700 – $2,562.50 = $137.50). The additional $90,000 in resources is needed to generate income for Eva sufficient to bring her up to her monthly maintenance needs allowance. Juan and Eva do not need a court order for Medicaid to approve the increased community spouse resource allowance. No spend-down would be necessary in this case.

Practice tiP: The example above relies on a situation where a spouse is in a nursing home. For practical purposes, it is more common to increase the community spouse resource allowance in cases where the ill spouse is in community-based care. This is because less income is available to the community spouse because of room and board ($552.70 per month) and personal needs allowance ($157.30 per month). With more of the Medicaid spouse’s income accounted for, there is less to deem to the community spouse.

iv. Exception to the income-First rule. OAR 461-160-0620(4) now allows a waiver of the income-first rule “if the Department determines that the resulting community spouse resource allowance would create an undue hardship on the spouse of the client.” Although there are no standards set forth in the rule, things to consider when requesting a waiver include the following.

(a) the age of the Community spouse. A younger age argues in favor of a waiver because he or she is likely to outlive the ill spouse and therefore suffer a reduction in income upon the death of the ill spouse.

(B) a source of income that will disappear. If the ill spouse has a source of income that will end upon his or her death, then the community spouse is more likely to face impoverishment. It is helpful to know if pensions will continue upon the death of the recipient or if the pension will be reduced.

(C) High Monthly Expenses. If the community spouse has high monthly expenses that will continue upon the death of the ill spouse and the reduction in income upon the death of the ill spouse will not be enough to cover those expenses.

2 $90,000 invested in a one-year CD at a rate of .07% percent generates $630 in income per year or $52.50 per month. Investment rate for one-year CD from www.bankrate.com.

http://www.bankrate.com



(d) Other Factors. Is the community spouse likely to need long-term care in the future? Is the community spouse resource allowance on the lower end?

There is no formal procedure for requesting a waiver of the income-first rule. A written request should be sent directly to a policy analyst in Salem for a quicker result.

3. is it income or a resource? Assets are divided into two categories, income and resources. An asset may not be counted as a resource and as income in the same month. OAR 461-140-0010(7). Therefore, we classify the asset as discussed above and determine eligibility for services. Unfortunately, the two types of assets are now subject to a great deal of confusion because in some instances the assets are treated as income and in other cases they are treated as resources. Practitioners should carefully evaluate client assets and make sure that DHS is not treating any asset as both income and a resource.

iii. POst-ELiGiBiLitY PLanninG issuEs: tHE EstatE PLan and tHE HOusE

a. the Estate Plan

Once a client is found to meet the requirement listed above, he or she will be eligible to start receiving Medicaid OSIPM benefits. There are post-eligibility Medicaid estate planning considerations that should be reviewed with the client at this point. This is primarily true for married couples who have a community spouse living in the home and with the support of the CSRA.

Many long-time married couples have wills leaving everything to the surviving spouse. Even if they do not have wills, they may own assets jointly with right of survivorship, essentially achieving the same result. Once one spouse becomes Medicaid-eligible, the other spouse may want to reevaluate whether or not the Medicaid spouse should receive the entire estate upon his or her death. Receiving the estate as a (now) single person would trigger ineligibility, requiring a spend-down of all the resources to less than $2,000. If the Medicaid spouse lives in a care facility, this includes the sale and spending of the proceeds from the house.

Many couples want to avoid the scenario above and revise the estate plan to avoid such a result. There are several strategies to consider when updating the estate plan of the community spouse.

1. disinheritance. Some clients may wish to bypass the Medicaid spouse altogether in favor of the children. This is an aggressive planning option. Oregon recently revised its elective share statute found at ORS 114.600–114.725. The statutes are attached as Appendix B. For many long-time married couples, the Medicaid spouse is entitled to elect a third of the augmented estate. Even if the Medicaid spouse is unable or unwilling to elect his or her share, the State of Oregon will request the appointment of a conservator under ORS Chapter 125 to elect on his or her behalf. Such a request will likely be successful. At that point, the disinheritance was not successful and the estate administration has incurred the additional cost of a conservatorship.

2. Providing for the Elective share. In order to avoid litigation, some clients elect to provide for the elective share up to the percentage amount provided for in ORS 114.605. The remaining portion passes freely without concerns for rapid spend-down by the Medicaid spouse at private pay rates. Some clients elect to leave the remaining share directly to their children. Others provide for the remainder to pass to a testamentary special needs trust for the benefit of the Medicaid spouse. If the elective share portion is spent on private care costs, the remaining special needs trust is intended to provide for the spouse’s supplemental needs for the remainder of his or her lifetime.

In many cases, the Medicaid spouse is financially incapable and the revised estate plan is an excellent opportunity to provide for management of his or her share of the estate. Instead of leaving the share outright to a spouse who is unable to manage the share, the community spouse can name a trustee of the share and avoid a potential conservatorship.



Be aware of the augmented estate as defined in ORS 114.630. Many times, the community spouse’s CSRA is made up of assets that will pass by beneficiary designations and not by will or trust. If the will or trust provides for the elective share, only assets subject to that document will be part of the calculation of that share. Thus, the plan may not fully provide for the correct percentage when calculating the augmented estate. Consider drafting to provide for calculation of the share using the definition found in ORS 114.630.

B. the House

Another post-eligibility planning issue is how to title the house. The house is often the primary asset for a couple, and careful planning can impact quality of life for the community spouse and the ultimate success of the estate plan.

The majority of married couples own their home jointly with rights of survivorship. This creates several issues with Medicaid. First, the community spouse may have hurdles to sell the home during his or her lifetime if the Medicaid spouse is incapacitated. In many cases, there is no effective power of attorney, and a court order might be necessary to sell the home. Therefore, if the Medicaid spouse has capacity at the time of planning, it is recommended that he or she meet with independent counsel to discuss the transfer of his or her interest to the community spouse. Such a transfer is allowed pursuant to OAR 461-140-0242(2)(b).

Second, if the home remains in joint ownership, it passes automatically to the Medicaid spouse after the death of the community spouse. Even if there is an updated estate plan, it passes outside of that plan. For that reason, it is advisable to transfer the house to the community spouse’s to ensure that the estate plan moves forward as intended.

Recently, there have been indications from the department that it intends to assert an interest in the proceeds from the sale of the house, even if sold when in the name of the community spouse. The department has gone as far as issuing notices of disqualification to the Medicaid spouse if the community spouse does not give him or her half the sale proceeds for spend-down. Caseworkers are telling applicants that the sale proceeds will be split, even in cases where the Medicaid spouse is no longer on title. There has been no rule change to support these actions. There is no recent policy memorandum giving guidance on the department’s position. There is also no statutory authority for the department to claim the proceeds. Despite this worrisome trend, it is likely still prudent in many cases to transfer the Medicaid spouse’s interest to the community spouse. Lacking statutory authority, the department may not prevail on its attempt to claim the proceeds. Furthermore, the transfer of the house protects not just the lifetime proceeds but also the estate planning considerations.

iV. EstatE rECOVErY

Medicaid estate recovery is the process by which states recoup, from the estates of deceased Medicaid recipients, some of the costs of running their Medicaid programs. Ever since the inception of Medicaid in 1965, states have had the legal authority to implement estate recovery programs. Today, all states are required by federal law to have them. 42 USC 1396p(b)(1).

In Oregon, Medicaid is administered by the Oregon Department of Human Services (hereafter “DHS”) and is governed by both federal and state law. Oregon law also requires DHS to seek recovery from the estates of deceased recipients. ORS 414.105. The branch of DHS tasked with administering Oregon’s estate recovery program is the Estate Administration Unit.3

When Medicaid recipients die, their estates are required to pay back some or all of the medical assistance received during life. The concept of estate recovery is sometimes confusing because, when

3 The Estate Administration Unit is a subdivision of Oregon DHS’s Office of Payment Accuracy and Recovery but should not be confused with the Personal Injury Liens Unit (also a subdivision of OPAR), which deals with liens against personal injury settlements of Medicaid recipients.



people think of Medicaid, they (correctly) think of individuals with modest means, and the idea of an “estate” is at odds with that image. Medicaid does impose strict limits on the assets and income of recipients. In fact, individuals with financial resources in excess of $2,000 generally do not qualify for Medicaid assistance. However, as discussed above, some assets are considered to be “exempt” for purposes of Medicaid eligibility, and it is these exempt assets that are most commonly pursued in estate recovery. The largest and most important of these is the home. A Medicaid recipient can own a home and still qualify for Medicaid if the home is used as his or her primary residence (and/or the primary residence of his or her spouse). OAR 461-145-0220(2).

a. not a Lien

One of the most common misconceptions about the estate recovery program is that DHS places liens on the homes of Medicaid recipients. This is not the case. Although the home is, more often than not, the primary asset in most Medicaid recipients’ estates, Oregon DHS does not use a lien mechanism to recover its costs. Instead, DHS makes “claims” against the estates of deceased recipients, just as any other creditor (such as a hospital or credit card company) might do. The only difference is that DHS’s estate recovery claim is given priority over the claims of most other creditors, so that in insolvent estates DHS gets paid before them. ORS 115.125.

B. scope of recovery

Oregon estate recovery law defines “estate” very broadly, so as to facilitate recovery of Medicaid assistance paid regardless of how it passes upon a recipient’s death. OAR 461-135-0832. Federal Medicaid law allows (and Oregon has opted for) an “expanded” definition of “estate” that includes not only the assets in a person’s probate estate (as determined by state law) but also those assets that pass outside of probate, including through:

1. Joint tenancy/tenancy by the entirety;

2. Life estates;

3. Living trusts;

4. Certain annuities.

Any property in which an individual has an interest on the date of death may, to the extent of that interest, be reached by Oregon’s estate recovery program.

In addition, current Oregon Administrative Rules allow DHS to recover assets not owned by the Medicaid recipient at the time of death, if said assets were transferred from the Medicaid spouse to the community spouse within 60 months of the first “date of request” for Medicaid. OAR 461-135-0835(1)(e)(B)(iii). Thus, in a case where a Medicaid spouse transfers his or her interest to the community spouse within 60 months of applying for Medicaid, DHS considers the house part of the Medicaid spouse’s estate.

The current Oregon Administrative Rules are, in the opinion of most experienced elder law attorneys, not supported by federal law. Currently, a lawsuit is pending in the Oregon Court of Appeals challenging these rules. (The case is captioned Tim Nay v. Oregon Dept. of Human Services, Case No. A150722, and is a direct Court of Appeals action challenging an agency rule under ORS 183.400, so there is no administrative decision or lower court decision being appealed. A similar challenge in Minnesota resulted in that state’s supreme court striking down the agency’s expanded definition of estate. The case was appealed to the United States Supreme Court, which denied certiorari and let the Minnesota Supreme Court ruling stand. A copy of the Minnesota Supreme Court decision, In re the Estate of Francis E. Barg, is available online at http://mn.gov/lawlib/archive/supct/0805/OPA052346-0530.pdf.

http://mn.gov/lawlib/archive/supct/0805/OPA052346-0530.pdf



Until a decision is issued here in Oregon, practitioners should advise their clients that any interspousal transfer of assets made within five years of applying for Medicaid may bring the transferred assets back into the “estate” of the Medicaid recipient, thus enabling recovery against those assets.

C. Limits of recovery

Not all Medicaid assistance provided by DHS is recoverable under the estate recovery laws. For example, DHS cannot recover the costs of basic medical care (i.e., Oregon Health Plan) provided to recipients who were under the age of 55 when the care was provided. (However, if the recipient was permanently institutionalized, DHS can recover benefits paid at any age.). In addition, if a Medicaid recipient is survived by a spouse, DHS must defer enforcement of its recovery claim until the surviving spouse’s death. Finally, if a recipient is survived by a child under age 21, a permanently disabled child, or a blind child, the estate recovery claim cannot be enforced. ORS 416.350, OAR 461-135-0835.

d. Hardship waivers

DHS is empowered to waive enforcement of any estate recovery claim if it finds that enforcing the claim would result in undue hardship to the family members, heirs, or beneficiaries of the deceased Medicaid recipient. ORS 416.340. OAR 461-135-0841. For example, if enforcement of a recovery claim would cause the waiver applicant to become homeless or would result in the applicant becoming eligible for Medicaid him or herself, DHS may opt to waive recovery. In some cases, the claim is forgiven in its entirety. In other instances (such as where a deceased recipient’s family has compelling reasons to continue residing in the recipient’s home but lacks the liquid resources to pay the claim), the department will negotiate with the interested parties, sometimes accepting a note and trust deed on the property in lieu of a lump-sum payment.

E. notice to dHs

Although estate recovery in Oregon is not limited to assets that pass through probate estates, Oregon law does require that notice of all probates initiated in the state (including copies of small estate affidavits) be provided to the DHS Estate Administration Unit. ORS 113.145(6); ORS 114.525(11); OAR 461-135-0834. DHS takes the position that this requirement applies even to probates opened for the sole purpose of pursuing a wrongful death claim.

In general, proceeds of wrongful death claims are not available to creditors of the decedent, as the claim is not property of the decedent. However, DHS contends that it may nonetheless have valid claims for reimbursement of Medicaid costs from wrongful death proceeds and thus should be notified of wrongful death probates. Specifically, DHS points to the reporting requirement contained in ORS 416.530, which requires recipients and/or their attorneys to notify DHS whenever an action for personal injuries is initiated. In these cases, DHS takes the position that notice of the probate should be given to the Estate Administration Unit (as required by ORS 113.145(6)), and notice of the wrongful death action for which the probate is opened should be given to the Personal Injury Liens Unit (as required by ORS 416.530).

F. Funeral Expenses

As mentioned above, Oregon probate law prioritizes certain creditor claims over others in insolvent estates. One claim with a higher priority than DHS’s estate recovery claim is a “plain and decent funeral” for the decedent. ORS 115.125 (1)(c). In its administrative rules, DHS has determined that such a funeral can and must be arranged for no more than $3,500. OAR 461-135-0833.



aPPEndiX a—saMPLE irrEVOCaBLE LiVinG trust aGrEEMEnt inCOME CaP trust

irrEVOCaBLE LiVinG trust aGrEEMEntinCOME CaP trust

[Beneficiary Name], Beneficiary Living Trust Agreement, dated __________, 20___.

[Trustee Name], Trustee

Address:

For the Benefit of

[Beneficiary Name], Beneficiary

Tax Identification Number of Trust __________ (if applicable)

Prepared by:

Address:

[Beneficiary name] income Cap trustirrevocable Living trust agreement

dated __________, 20___

RECITALS:

This declaration of Trust is made this __________ day of 20___, by [Grantor Name], Grantor.

[Beneficiary Name], as Grantor, establishes a trust that is effective [date effective], for the benefit of [Beneficiary Name], the lifetime beneficiary (“Beneficiary”).

The initial Trustee is [Trustee Name].

article 1—name of trust

This irrevocable trust shall be known as “The [Beneficiary Name] Income Cap Trust.”

article 2—Purpose of the trust

The purpose of this Trust is to provide for the administration and disposition of the trust estate during and after the lifetime of the beneficiary, in accordance with the terms and conditions of the Trust. This Trust is created pursuant to Section 1917(d)(4)(B) of the Social Security Act (42 USC 1396p). This trust document is created in order to enable the beneficiary to qualify for Medicaid, and any provisions of this trust that are deemed to be inconsistent or contrary to the intent of the above-referenced federal law shall be deemed to be void and of no further force or effect. All interpretations and actions taken by the trustee pursuant to this Trust shall be done for and with the purpose of creating, establishing, and maintaining the beneficiary’s eligibility for Medicaid benefits.

article 3—trust Funding

3.1 initial Funding. Grantor will cause to be transferred to trustee the monthly income of the beneficiary beginning in the month of __________, 20___. Grantor intends that the income funding this trust, together with all accretions and additions thereto, shall be used, handled, and disposed of by the trustee and by any successor or substitute trustee as described in this instrument.



3.2 no Other assets in trust. No property other than the beneficiary’s shall be placed in this trust. The trustee shall place no other money in the trust bank account.

article 4—distribution during Beneficiary’s Life

4.1 General distribution Plan. During the lifetime of the beneficiary, the trustee shall use the beneficiary’s income placed in the trust to pay:

a. Personal needs allowance. The beneficiary’s personal needs allowance or applicable OSIP standard;

b. room and Board. The cost of room and board at facility if applicable in accordance with the OSIPM standard;

c. administrative Costs. Reasonable administrative costs associated with the maintenance of this trust of up to $50 per month to cover trustee fees, bank service charges, copy charges, postage, accounting and tax preparation fees, income taxes attributable to trust income, and guardianship or conservatorship fees and costs.

d. spouse and Family. Monthly maintenance needs allowance for spouse and family.

e. Health insurance Premium. The health insurance premiums of the beneficiary, the beneficiary’s spouse, and the beneficiary’s dependents.

f. Other reserves. Other incurred medical care costs that are not reimbursed by a third party. Contributions to reserves limited to child support, alimony, and income taxes. Contributions to reserves for the purchase of an irrevocable burial plan with a maximum value of $5,000. Contributions to reserves for a home maintenance allowance may be made on a monthly basis if the client meets the criteria of OAR 461-155-0660 or OAR 461-160-0630.

g. Patient Liability. Patient liability not to exceed the cost of waivered services or nursing home care.

h. Excess. Any excess income may be distributed to or on behalf of the beneficiary only to the extent allowed under the Oregon Administrative Rules governing Medicaid assistance. Excess income may be distributed to the state to repay it for any Medicaid assistance that it provided to the beneficiary, even if recovery for the past assistance is not required by federal or state law.

4.2 Changes are anticipated. The cost of care will vary with changes in the beneficiary’s income, the income cap amount, tax withholding, and allowable expenses. The representative of the state Medicaid program may from time to time notify the trustee of changes in the rules that affect the contribution to the cost of care. If the trustee determines that a change in the distribution plan is warranted, the trustee shall notify the worker assigned to the beneficiary’s case.

article 5—distribution at termination

5.1 remainder Beneficiaries named. This trust shall cease and terminate at the death of the beneficiary, or earlier if the trustee determines that the existence of the trust is no longer necessary to establish or maintain Medicaid eligibility for the beneficiary. Upon the termination of this trust, the remaining trust property shall be distributed as follows:

a. To any state that may have provided the life beneficiary with medical assistance up to an amount equal to the total medical assistance paid on behalf of the life beneficiary by a state plan for Medicaid assistance or through an approved waiver program; this provision is intended to meet the requirements of 42 USC 1396p as amended by OBRA ’93; and

b. Any remainder after the state’s claim has been paid shall pass outside of probate to those residuary beneficiaries named in the beneficiary’s will or trust; however, if the beneficiary leaves no



will or trust, then the remainder shall be distributed outside of probate to those heirs as determined by the Oregon law of intestate succession.

5.2 winding up affairs of trust. At the termination of this trust, trustee shall wind up the affairs of the trust before distribution, paying for all administrative costs and for preparation of the final tax return. The trustee shall have the sole discretion to claim any tax deductions useful to reduce the taxation of the living trust. After winding up the trust, the trustee shall distribute the remainder, if any, as provided above.

article 6—tax nature of trust

It is the intent of the parties hereto that this Income Cap Trust be construed as a “grantor trust” under Internal Revenue Code Section 677(a). All income received, distributed, held, or accumulated by this trust shall be taxable to the grantor. The trustee may distribute directly to the taxing authority such amounts of income or principal of the trust as are necessary to satisfy the beneficiary’s tax obligations.

article 7—authority of trustee

The trustee’s discretion in choosing which nonsupport disbursements to make is final as to all interested parties. The trustee’s sole and independent judgment, rather than any other person’s determination, is intended to be final.

article 8—spendthrift/nonassignment

No interest in the principal or income of this trust shall be anticipated, assigned or encumbered, or be subject to any creditor’s claim or to legal process prior to its actual receipt by the beneficiary. No beneficiary shall have the power to sell, assign, transfer, encumber, or in any other manner anticipate or dispose of the beneficiary’s interest in the trust or the income produced thereby, prior to its actual distribution by the trustee for the benefit of the beneficiary in the manner authorized by this agreement. No beneficiary shall have any assignable interest in any trust created under this agreement or in the income therefrom. Neither the trust principal nor income shall be liable for any debts of the beneficiary. The limitations herein shall not restrict the exercise of any power of appointment or disclaimer.

article 9—irrevocable nature of trust

Grantor retains no right to modify, change, alter, or revoke this trust, as it is intended to be an irrevocable trust. The beneficiary has no power to modify, change, alter, or revoke the trust.

article 10—Governing Law

The validity and construction of this agreement shall be determined under Oregon law in effect on the date this agreement is signed.

article 11—Powers of trustee

The trustee shall have all powers granted to trustees by Oregon law as now existing or later amended, except to the extent limited by the other provisions of this trust. In addition, the trustee shall have the power:

11.1 Manage assets. To manage and distribute assets.

11.2 retain assets. To retain assets;.

11.3 Manner of Making distribution. To make any distribution on behalf of the beneficiary, directly to the person or organization.

11.4 Principal and income. The trustee may allocate items of income or expenditure to either income or principal and create reserves out of income all as provided by law, and to the extent not so provided, to allocate to income or principal or create reserves, on a reasonable basis, and the fiduciary’s decision made in good faith with respect thereto shall be binding and conclusive upon all persons.



11.5 undistributed income. Income accrued or undistributed at the termination of a beneficiary’s interest in a trust shall be added to and become part of the principal of that trust, and the rights of the beneficiary to that income shall terminate.

11.6 Employment Of agents. The trustee may engage persons, including attorneys, auditors, investment advisors, tax advisors, or agents to advise or assist the fiduciary at the cost of the trust estate.

11.7 do Other acts. Except as otherwise provided in this instrument, to do all acts that might legally be done by an individual in absolute ownership and control of property and that in the trustee’s judgment are necessary or desirable for the proper and advantageous management of the trust.

11.8 trustee Liability; use of Funds to research Programs. It is recognized that the trustee is not licensed nor skilled in the field of social services. The trustee may seek the counsel and assistance of the beneficiary’s guardian or conservator, if any, and any state and local agencies that have been established to assist the elderly or disabled in similar circumstances. The trustee may use these resources to aid the beneficiary, or the beneficiary’s guardian or conservator, as appropriate, in identifying programs that may be of social, financial, and/or developmental assistance to the beneficiary. However, the trustee shall not in any event be liable to beneficiary, the remainder beneficiaries of the trust, or any other party for the trustee’s acts as trustee hereunder so long as the trustee acts reasonably and in good faith. For example, the trustee, the beneficiary, and the beneficiary’s guardian or conservator, if any, shall not be liable for the failure to identify each program or resource that might be available to the beneficiary.

11.9 Power to amend. The trustee may amend the trust to conform with future changes in federal or state law, to better effect the purposes of this trust.

article 12—trust administration and Courts

This trust shall be administered according to its terms expeditiously and without order, approval, or other action by any court. However, the trustee or any interested person may petition the court as allowed in this trust agreement or by Oregon law. A court, however, shall have the continuing jurisdiction to modify any provision of this trust to the extent necessary to maintain the eligibility of the beneficiary for medical assistance or other public benefits under applicable law.

article 13—trustee succession and General administrative Provisions

13.1 resignation of trustee. The trustee may resign the trusteeship at any time. Any resignation shall be in writing, and shall become effective only after 30 days from the date of mailing of the written notice to the beneficiary and to the first remainder beneficiary, and to the successor trustee named herein, mailed to the most current addresses known to the trustee; now the addresses are:

Beneficiary’s Address: [Beneficiary Name] [Address] [City, State, Zip] [Beneficiary Telephone Number]

First Remainder Beneficiary: State of Oregon Department of Human Services Estate Administration Unit PO Box 14021 Salem, OR 97309-5024



Trustee Address: [Trustee Name] [Address] [City, State, Zip]

or the most current addresses then known to the trustee.

13.2 designation of successor trustee. The successor trustee shall be [Successor Trustee Name]. Any named trustee may nominate and appoint additional successor trustees to serve if the persons initially nominated as successors are unavailable or unwilling to serve.

13.3 no trustee. If the trust at any time has no trustee, and no successor has been nominated as described above, then a court having jurisdiction may appoint, after notice to the beneficiary and an opportunity to be heard, a successor trustee at the request of any person interested in the trust, including the trust beneficiary.

13.4 transfer to successor trustee. Every successor trustee shall have all of the rights, title, powers, privileges, and duties conferred on or imposed upon the original trustee, without any conveyance or transfer. All right, title, and interest to the trust property shall immediately vest in the successor trustee, upon the successor trustee executing a document accepting the office. The prior trustee shall, without warranty, transfer the existing trust property to the possession and control of the successor trustee. The successor trustee shall not have any duty to examine the records or actions of any former trustee and shall not be liable for the consequences of any act or failure to act of any former trustee.

13.5 removal of trustee. Any interested person herein may petition any Oregon circuit court for removal of any trustee. While any interested person may petition for removal of any trustee, the decision on whether to remove any trustee shall be in the exclusive discretion and control of an Oregon circuit court.

13.6 replacement of trustee. Any trustee may be replaced by a successor trustee upon the death, resignation, removal, or incapacity of the prior trustee. Also, should no successor trustee have been nominated, any Oregon circuit court shall have the power to fill any vacancy in the trusteeship resulting from the death, resignation, removal, or incapacity of a trustee.

13.7 trustee’s reporting responsibility. The trustee shall report, at least every twelve months, to the beneficiary and his/her legal representative, if any, and to the next successor trustee, at the most recent address then known to the trustee. The trustee’s report shall advise of any change in the beneficiary’s eligibility for public benefit programs and shall list all of the receipts, disbursements, and distributions occurring during the reporting period, along with a complete list of the assets held by the trust. A copy of the most recent bank account statement and a copy of the most recently filed trust tax return shall be attached to the accounting. The account shall be deemed to have been delivered when it has been placed in the United States Mail addressed to that person at the person’s last known address.

13.8 availability of records. The records of the trustee, such as all trust documentation and annual accountings, shall be made available to the trust beneficiary, and/or the beneficiary’s legal representative, and the trust remaindermen, including but not limited to the State of Oregon, Department of Human Services, within 10 days of notice to the trustee.

13.9 trustee Compensation. The trustee may receive reasonable compensation and reimbursement for expenses such as travel costs (if automobile, at the then-current IRS mileage expense allowance), postage, copy and fax charges, and long distance telephone charges required to administer the trust estate.



13.10 trustee indemnification. Trustee is entitled to be indemnified, to his or her reasonable satisfaction, against liabilities lawfully incurred in the administration of this trust, at the cost of the trust.

13.11 Bond. No bond shall be required of any trustee.

DATED this __________ day of __________, 20___.

Grantor

Trustee

acceptance of Office by trustee

I, [Trustee Name], the named trustee in this instrument, accept the office and responsibilities of trustee.

DATED this __________ day of __________, 20___.

[Trustee Name], Trustee



schedule a of the [Beneficiary name] income Cap trust

assets transferred to trust at time of Creation

The principal of this trust will be composed of bank deposits from the net monthly income, including pensions and social security benefits, of Beneficiary.

These funds will be kept in a bank account opened in the name of “[Trustee Name], Trustee of the [Beneficiary Name] Income Cap Trust” under the tax identification number of the trust (if applicable).

Commitment to transfer

I promise to cause the income of Beneficiary to be transferred to the trustee of the [Beneficiary Name] Income Cap Trust.

DATED [Date Executed].

Trustee





aPPEndiX B—Ors 114.600–114.725, ELECtiVE sHarE FOr dECEdEnts wHO diE On Or aFtEr JanuarY 1, 2011

(Generally)

114.600 Elective share generally. (1) If a decedent is domiciled in this state on the decedent’s date of death, and the decedent is survived by a spouse, the surviving spouse of the decedent may elect to receive the elective share provided by ORS 114.600 to 114.725. An election under ORS 114.600 to 114.725 must be made before the death of the surviving spouse by the filing of a motion or petition in the manner described in ORS 114.610. If a motion or petition is filed within the time specified in ORS 114.610, and the surviving spouse dies before payment of the elective share, the personal representative for the estate of the surviving spouse may take all steps necessary to secure payment of the elective share under ORS 114.600 to 114.725.

(2) Any amounts received under ORS 114.015 are in addition to the elective share provided for in ORS 114.600 to 114.725.

(3) If a decedent dies while domiciled outside this state, any right of a surviving spouse of the decedent to take an elective share in property in this state is governed by the law of the decedent’s domicile at death. [2009 c.574 §2]

note: Section 23, chapter 574, Oregon Laws 2009, provides:

sec. 23. Sections 2 to 20 of this 2009 Act [114.600 to 114.725] and the amendments to ORS 114.555 by section 21 of this 2009 Act apply only to the surviving spouses of decedents who die on or after the effective date of this 2009 Act [January 1, 2011]. Notwithstanding the repeal of ORS 114.105, 114.115, 114.125, 114.135, 114.145, 114.155 and 114.165 by section 25 of this 2009 Act, the rights of a surviving spouse of a decedent who dies before the effective date of this 2009 Act shall continue to be governed by the law in effect immediately before the effective date of this 2009 Act. [2009 c.574 §23]

114.605 amount of elective share. (1) Except as otherwise provided in ORS 114.600 to 114.725, the amount of the elective share is a dollar amount determined by multiplying the augmented estate by the percentage provided in this section. All properties included in the augmented estate shall be determined as provided in ORS 114.600 to 114.725. A court of this state has authority to order distribution under ORS 114.600 to 114.725 of all properties included in the augmented estate under ORS 114.600 to 114.725.

(2) The elective share of a surviving spouse is determined by the length of time the spouse and decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse were married to each other: The elective-share percentage is:Less than 2 years 5% of the augmented estate2 years but less than 3 years 7% of the augmented estate3 years but less than 4 years 9% of the augmented estate4 years but less than 5 years 11% of the augmented estate5 years but less than 6 years 13% of the augmented estate6 years but less than 7 years 15% of the augmented estate7 years but less than 8 years 17% of the augmented estate8 years but less than 9 years 19% of the augmented estate9 years but less than 10 years 21% of the augmented estate



10 years but less than 11 years 23% of the augmented estate11 years but less than 12 years 25% of the augmented estate12 years but less than 13 years 27% of the augmented estate13 years but less than 14 years 29% of the augmented estate14 years but less than 15 years 31% of the augmented estate15 years or more 33% of the augmented estate

[2009 c.574 §3]

114.610 Manner of making election. (1) A surviving spouse may claim the elective share only by:

(a) Filing a petition for the appointment of a personal representative for the estate of the deceased spouse, and a motion for the exercise of the election as described in paragraph (b) of this subsection, within nine months after the spouse dies.

(b) Filing a motion for the exercise of the election in a probate proceeding commenced for the estate of the deceased spouse under ORS 113.035. The motion must be filed not later than nine months after the death of the decedent. A copy of the motion must be served on the personal representative, on all persons who would be entitled to receive information under ORS 113.145 and on all distributees and recipients of portions of the augmented estate known to the surviving spouse who can be located with reasonable efforts. A surviving spouse may withdraw a motion for an election filed under this subsection at any time before the court enters an order granting the motion.

(c) Filing a petition for the exercise of the election under ORS 114.720 (1) within nine months after the death of the decedent.

(2) If a court determines that the elective share is payable, the court shall determine the amount of the elective share and shall order its payment pursuant to the priorities established under ORS 114.700. If it appears that property has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the property or who has possession thereof, whether as trustee or otherwise. [2009 c.574 §4]

114.615 Payment of elective share. In determining whether any payment is required to a surviving spouse in satisfaction of the elective share provided for in ORS 114.605, the court shall consider the values of the decedent’s probate estate, the decedent’s nonprobate estate, the surviving spouse’s estate, the decedent’s probate transfers to the surviving spouse and the decedent’s nonprobate transfers to the surviving spouse. If the court determines that the aggregate value of the surviving spouse’s estate, the decedent’s probate transfers to the surviving spouse and the decedent’s nonprobate transfers to the surviving spouse do not satisfy the amount of the elective share, any additional amount required to satisfy the elective share shall be paid out of the decedent’s probate estate and the decedent’s nonprobate estate in the manner provided by ORS 114.700. [2009 c.574 §5]

114.620 waiver of right to elect and other rights. (1) The right of election under ORS 114.600 to 114.725 may be waived, wholly or partially, before or after marriage by a written contract, agreement or waiver signed by the surviving spouse.

(2) Unless specifically provided otherwise, a written agreement that waives all rights in the property or estate of a present or prospective spouse, using the phrase “all rights” or other equivalent language, or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to an elective share under ORS 114.600 to 114.725 by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to each spouse from



the other by intestate succession or by virtue of any will executed before the written agreement or property settlement. [2009 c.574 §6]


sec. 24. A written contract, agreement or waiver entered into before the effective date of this 2009 Act [January 1, 2011], whether prenuptial or post-nuptial, that waives in whole or in part the elective share of a surviving spouse is effective as a waiver under section 6 of this 2009 Act [114.620] unless a court determines that the contract, agreement or waiver is not enforceable under the standards of section 6 of this 2009 Act. Section 6 (2) of this 2009 Act applies to contracts, agreements or waivers entered into before, on or after the effective date of this 2009 Act. [2009 c.574 §24]

114.625 who may exercise right of election. The elective share may be personally claimed by a surviving spouse, or may be claimed on the surviving spouse’s behalf by a conservator, guardian or agent under the authority of a power of attorney. [2009 c.574 §7]

(Augmented Estate)

114.630 augmented estate. (1) Except as otherwise provided in ORS 114.600 to 114.725, the augmented estate consists of all of the following property, whether real or personal, movable or immovable, or tangible or intangible, wherever situated:

(a) The decedent’s probate estate as described in ORS 114.650.

(b) The decedent’s nonprobate estate as described in ORS 114.660 and 114.665.

(c) The surviving spouse’s estate, as described in ORS 114.675.

(2) The value attributable to any property included in the augmented estate under ORS 114.600 to 114.725 must be reduced by the amount of all enforceable claims against the property and all encumbrances on the property. Any exemption or deduction that is allowed for the purpose of determining estate or inheritance taxes on the augmented estate and that is attributable to the marriage of the decedent and the surviving spouse inures to the benefit of the surviving spouse as provided in ORS 116.343 (2).

(3) The value attributable to any property included in the augmented estate includes the present value of any present or future interest and the present value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal Social Security Act.

(4) The value attributable to property included in the augmented estate is equal to the value that would be used for purposes of federal estate and gift tax laws if the property had passed without consideration to an unrelated person on the date that the value of the property is determined for the purposes of ORS 114.600 to 114.725.

(5) In no event may the value of property be included in the augmented estate more than once. [2009 c.574 §8; 2011 c.305 §4]


sec. 7. The amendments to ORS 114.630, 114.635, 114.660, 114.665, 114.675 and 114.700 by sections 1 to 6 of this 2011 Act apply to the surviving spouses of all decedents who die on or after the effective date of this 2011 Act [June 9, 2011]. [2011 c.305 §7]

114.635 Exclusions from augmented estate. The augmented estate does not include:

(1) Any value attributable to future enhanced earning capacity of either spouse;

(2) Any property that is irrevocably transferred before the death of the decedent spouse;



(3) Any property that is transferred on or after the date of the death of the decedent spouse with the written joinder or written consent of the surviving spouse;

(4) Any property that is community property under ORS 112.705 to 112.775 or under the laws of the jurisdiction where the property is located; or

(5) Any property that is held by either spouse solely in a fiduciary capacity. [2009 c.574 §9; 2011 c.305 §1]

note: See note under 114.630.

(Decedent’s Probate Estate)

114.650 decedent’s probate estate. For purposes of ORS 114.600 to 114.725, a decedent’s probate estate is the value of all estate property that is subject to probate and that is available for distribution after payment of claims and expenses of administration. A decedent’s probate estate includes all property that could be administered under a small estate affidavit pursuant to ORS 114.505 to 114.560. A decedent’s probate estate does not include any property that constitutes a probate transfer to the decedent’s surviving spouse under ORS 114.685. [2009 c.574 §10]

(Decedent’s Nonprobate Estate)

114.660 decedent’s nonprobate estate. For purposes of ORS 114.600 to 114.725, a decedent’s nonprobate estate consists of the property described in ORS 114.665 that is not included in the decedent’s probate estate and that does not constitute a transfer to the decedent’s surviving spouse. The value of the decedent’s nonprobate estate is reduced by all debts and liabilities of the decedent that are not paid in probate, and by all costs of administering the decedent’s nonprobate estate that are incurred for the purpose of settling claims against the nonprobate estate and distributing the nonprobate estate property to the persons entitled to that property. [2009 c.574 §11; 2011 c.305 §2]


114.665 decedent’s nonprobate estate; property owned immediately before death. (1) A decedent’s nonprobate estate includes the decedent’s fractional interest in property held by the decedent in any form of survivorship tenancy immediately before the death of the decedent. The amount included in the decedent’s nonprobate estate under the provisions of this subsection is the value of the decedent’s fractional interest, to the extent the fractional interest passes by right of survivorship at the decedent’s death to a surviving tenant other than the decedent’s surviving spouse.

(2) A decedent’s nonprobate estate includes the decedent’s ownership interest in property or accounts held immediately before death under a payable on death designation or deed, under a transfer on death registration or in co-ownership registration with a right of survivorship. The amount included in the decedent’s nonprobate estate under the provisions of this subsection is the value of the decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the decedent’s death to any person other than the decedent’s estate or surviving spouse or for the benefit of any person other than the decedent’s estate or surviving spouse.

(3) A decedent’s nonprobate estate includes any property owned by the decedent immediately before death for which the decedent had the power to designate a beneficiary, but only to the extent that the decedent could have designated the decedent, or the spouse of the decedent, as the beneficiary.

(4) A decedent’s nonprobate estate includes any property that immediately before death the decedent could have acquired by the exercise of a revocation, without regard to whether the revocation was required to be made by the decedent alone or in conjunction with other persons.

(5) A decedent’s nonprobate estate does not include the present value of any life insurance policy payable on the death of the decedent. [2009 c.574 §12; 2011 c.305 §3]




(Surviving Spouse’s Estate)

114.675 surviving spouse’s estate. (1) For purposes of ORS 114.600 to 114.725, a surviving spouse’s estate is:

(a) The decedent’s probate transfers to the spouse, as described in ORS 114.685.

(b) The decedent’s nonprobate transfers to the spouse, as described in ORS 114.690.

(c) All other property of the spouse, as determined on the date of the decedent’s death.

(d) Any property that would have been included under paragraph (a), (b) or (c) of this subsection except for the exercise of a disclaimer by the spouse after the death of the decedent.

(2) (a) For the purpose of establishing the value of the surviving spouse’s estate under this section, the estate includes 100 percent of the corpus of any trust or portion of a trust from which all income must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse, and for which the surviving spouse has a general power of appointment that the surviving spouse, acting alone, may exercise, during the surviving spouse’s lifetime or at death of the surviving spouse, to or for the benefit of the surviving spouse or the surviving spouse’s estate.

(b) For the purpose of establishing the value of the surviving spouse’s estate under this section, the estate includes 100 percent of the corpus of a trust or portion of a trust created by the decedent spouse, if all income from the trust or portion of a trust must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse and the trust principal may be accessed only by the trustee or the spouse and only for the purpose of providing for the health, education, support or maintenance of the spouse.

(c) For the purpose of establishing the value of the surviving spouse’s estate under this section, the estate includes 50 percent of the corpus of a trust or portion of a trust created by the decedent spouse if all income from the trust or portion of a trust must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse and neither the trustee nor the spouse has the power to distribute trust principal to or for the benefit of the surviving spouse or any other person during the spouse’s lifetime.

(d) For the purposes of this section, all amounts distributed to a surviving spouse from a unitrust that meets the requirements of ORS 129.225 (4) shall be considered income.

(e) The value of the surviving spouse’s beneficial interest in a trust other than a trust described in paragraphs (a) to (d) of this subsection shall be determined under the provisions of ORS 114.630 (3) and (4). [2009 c.574 §13; 2011 c.305 §5]


(Decedent’s Probate Transfers to Spouse)

114.685 decedent’s probate transfers to surviving spouse. The decedent’s probate transfers to the decedent’s surviving spouse include all estate property that is subject to probate, that passes to the surviving spouse by testate or intestate succession, and that is available for distribution to the surviving spouse after payment of claims and expenses of administration. [2009 c.574 §14]

(Decedent’s Nonprobate Transfers to Spouse)

114.690 decedent’s nonprobate transfers to surviving spouse. (1) Except as provided in subsection (2) of this section, the decedent’s nonprobate transfers to the decedent’s surviving spouse include all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:



(a) The decedent’s fractional interest in property held in any form of survivorship tenancy, as described in ORS 114.665 (1), to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving tenant;

(b) The decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent that the decedent’s ownership interest passed to the surviving spouse as surviving co-owner;

(c) Insurance proceeds payable to the surviving spouse by reason of the death of the decedent; and

(d) All other property that would have been included in the decedent’s nonprobate estate under ORS 114.660 and 114.665 had it passed to or for the benefit of a person other than the decedent’s spouse.

(2) The decedent’s nonprobate transfers to the decedent’s surviving spouse do not include any property passing to the surviving spouse under the federal Social Security Act. [2009 c.574 §15]

(Payment of Elective Share)

114.700 Priority of sources from which elective share payable. (1) The surviving spouse’s estate, as described in ORS 114.675, shall be applied first to satisfy the dollar amount of the elective share and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others.

(2) If after application of the surviving spouse’s estate under subsection (1) of this section the elective share amount is not fully satisfied, the following amounts shall be applied to the extent necessary to satisfy the balance of the elective share amount:

(a) Amounts included in the decedent’s probate estate.

(b) Amounts included in the decedent’s nonprobate estate under ORS 114.600 to 114.725.

(3) Unless otherwise provided by a will, trust or other instrument executed by the decedent spouse:

(a) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section shall be collected from both the probate and nonprobate estates of the decedent in a manner that ensures that the probate and nonprobate estates bear proportionate liability for the amounts necessary to pay the elective share amount.

(b) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the probate estate of the decedent must be apportioned among all recipients of the decedent’s probate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s probate estate.

(c) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the nonprobate estate of the decedent must be apportioned among all recipients of the decedent’s nonprobate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s nonprobate estate.

(4) All apportionments under this section between the probate and nonprobate estates of the decedent and among the recipients of those estates shall be based on the assets of each estate that are subject to distribution by the court under the provisions of ORS 114.600 to 114.725.



(5) In any proceeding described in ORS 114.610, the court may allocate the cost of storing and maintaining property included in the augmented estate pending distribution of the property. [2009 c.574 §16; 2011 c.305 §6]


114.705 Liability of recipients of decedent’s nonprobate estate. (1) The following recipients of the decedent’s nonprobate estate are the only persons who may be required to make a proportional contribution toward the satisfaction of the surviving spouse’s elective share under the provisions of ORS 114.600 to 114.725:

(a) An original recipient of all or part of the decedent’s nonprobate estate.

(b) A person who has received all or part of the decedent’s nonprobate estate for less than fair consideration from an original recipient of the property, to the extent the person has the property or proceeds of the property.

(2) A recipient of all or part of the decedent’s nonprobate estate who is required to make a proportional contribution toward the satisfaction of the surviving spouse’s elective share may elect to make the contribution by returning property determined to be adequate to satisfy the recipient’s obligation or by paying money equal to the value of that property. [2009 c.574 §17]

114.710 Protective order. (1) If a surviving spouse has filed a motion or petition described in ORS 114.610, the surviving spouse or any person who has received any part of the decedent’s probate or nonprobate estate may request, at any time after the filing, that the court issue a protective order. The protective order shall prohibit or impose conditions on the transfer of property included in the augmented estate. The protective order may be served on any person holding property included in the augmented estate.

(2) Upon the filing of a motion or petition under ORS 114.610, any person who has received any part of the decedent’s probate or nonprobate estate and who is required to make a contribution toward the satisfaction of the elective share may file a motion or petition with the court requesting a determination of the amount of the person’s proportionate contribution toward the satisfaction of the elective share. Upon that determination being made, the person may deposit with the court the amount so determined in the form of money or a bond or other security. The deposit discharges the person from all claims relating to the satisfaction of the elective share. In lieu of deposit with the court under this subsection the court may require that the money or security be deposited with a person designated by the court.

(3) If a surviving spouse has filed a motion or petition described in ORS 114.610, and a notice of pendency of action under ORS 93.740 is recorded, a temporary restraining order is issued under ORCP 79, or provisional process is issued under ORCP 83, an owner of the property that is subject to the notice, order or process may seek relief from the notice, order or process by providing a bond or other security to the court in such amount as the court may determine adequate to satisfy the person’s proportionate contribution toward the satisfaction of the elective share. [2009 c.574 §18]

(Procedure)

114.720 Proceedings to claim elective share. (1) A surviving spouse may claim the elective share by filing a petition for the exercise of the election in a circuit court within the time allowed by ORS 114.610 (1)(c). Venue for the proceeding is as provided in ORS 113.015. A copy of the petition must be served on all persons who would be entitled to receive information under ORS 113.145 and on all distributees and recipients of portions of the augmented estate known to the surviving spouse who can be located with reasonable efforts. The fee for filing a petition under this subsection shall be the amount prescribed in ORS 21.170, based on the value of the nonprobate estate. The Oregon Rules of



Civil Procedure apply to proceedings under this section. Any party to a proceeding under this section may request that the pleadings and records in the proceeding be sealed.

(2) A surviving spouse may withdraw a petition filed under this section at any time before entry of a judgment on the petition.

(3) If a probate proceeding is commenced for the estate of the deceased spouse under ORS 113.035 either before or after a petition is filed under this section, the court shall consolidate the proceedings under this section with the probate proceedings. [2009 c.574 §19; 2011 c.595 §125]

114.725 Effect of separation. If the decedent and the surviving spouse were living apart at the time of the decedent’s death, whether or not there was a judgment of legal separation, the court may deny any right to an elective share or may reduce the elective share to such amount as the court determines reasonable and proper. In deciding if all or part of the elective share should be denied, the court shall consider whether the marriage was a first or subsequent marriage for either or both of the spouses, the contribution of the surviving spouse to the property of the decedent in the form of services or transfers of property, the length and cause of the separation and any other relevant circumstances. [2009 c.574 §20]



aPPEndiX C—PrEsEntatiOn sLidEs

10/14/2013

1

Understanding Medicaid and Long-Term Care in Oregon

Example 1 – Calculating the income diversion to spouseSantiago’s income $3,400Michelle’s income $900

$4,300

Minimum $1,939Less Michelle’s income ($900)Diversion of Santiago’s income $1,039

Maximum $2,898Less Michelle’s income ($900)Diversion of Santiago’s income $1,989



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Resources Example 1 –Calculating the CSRACombined available resources as of the first day of continuous care: $100,000

$100,000/2 = $50,000 CSRA

Spend down calculation: $100,000Less CSRA ($50,000)Less exempt resources ($2,000)Total spend down $48,000


$300,000/2 = $150,000

Maximum CSRA = $115,920

Spend down calculation: $300,000

Less CSRA ($115,920)

Less exempt resources ($2,000)

Total spend down $182,080



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$30,000/2 = $15,000

Minimum CSRA = $23,184

Spend down calculation: $30,000

Less CSRA ($23,184)

Less exempt resources ($2,000)

Total spend down $4,616

Income First Rule Example 1 – No Diversion of ResourcesJuan’s income $1,900Less PIF ($30)Less Health insurance premiums ($60)Available to divert $1,810

Minimum MMMNA $1,939Less Eva’s income ($700)Eva’s CSIA $1,239

Juan’s remaining income of $571 is paid to facility and there is no diversion of resources in excess of the default CSRA.



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Income First Rule Example 2 – No Diversion of ResourcesEva’s Expenses

Mortgage $497

Taxes and Insurance $200

Food Stamp (SNAP) allowance $441

Total Shelter Expenses $1,138

Less excess shelter allowance ($567)

Shelter Allowance $571

Minimum MMMNA $1939

Total MMMNA $2,510

Income First Rule Example 2– No Diversion of ResourcesJuan’s income $1,900Less PIF ($30)Less Health insurance premiums ($60)Available to divert $1,810

Eva’s MMMNA $2,510Less Eva’s income ($700)Eva’s CSIA $1,810

Since Juan’s available income is sufficient to meet Eva’s MMMNA, there is no diversion of resources in excess of the default CSRA.



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Income First Rule Example 3 – Diversion of Resources

Juan’s income $1,900Less PIF ($30)Less Health insurance premiums ($60)Available to divert $1,810

Eva’s MMMNA $2,700Less Eva’s income ($700)Eva’s CSIA $2,000

Juan’s available income is insufficient to meet Eva’s MMMNA, and there is a $200 per month shortfall, allowing a diversion of resources.

Income First Rule Example 3 ContinuedCombined available resources as of the first day of continuous care: $100,000

$100,000/2 = $50,000 CSRA

$50,000 CSRA generates monthly income of $30/month based on a 1 year CD rate of .072% (.0072 x $50,000 = $360/12 = $30)

Shortfall to Eva $200

Less income generated from CSRA ($30)

Remaining Shortfall $170

Since $50,000 CSRA does not generate sufficient income to meet Eva’s MMMNA, diversion of resources is allowed. $283,333 is needed to generate $170 in income. Eva keeps all resources.



Chapter 2a

1915(k) state Plan Option in Oregon—Presentation slides

Jane-ellen Weidanz

Manager, Medicaid Long-Term Care Systems GroupOregon Department of Human Services, Aging and People with Disabilities

Salem, Oregon

Chapter 2A—1915(k) State Plan Option in Oregon—Presentation Slides

Elder Law 2013: Basics to Build On 2A–ii


Elder Law 2013: Basics to Build On 2A–1

1

Jane-ellen WeidanzAPD Medicaid LTC

System Manager

The K State Plan Option is a new state plan option that lets states provide HCBC services.

Starting in July 1, 2013, Oregon will use “the K” to fund the majority of HCBS for: seniors, people with intellectual or developmental

disabilities; and people with physical disabilities.



2

The K is designed to allow states to provide services related to: ADLs IADL, and Health-related tasks—specific tasks which

can be delegated or assigned by licensed health-care professionals under state law.

The state cannot limit services to specific age or disability categories. Individuals must meet institutional level of

care.

Level of Care Determination

Functional Needs Assessment

Person-Centered Service Plan



3

K requires states to determine if the individual meets “institutional level of care”

For APD this is the same criteria as the Service Priority Levels 1–13

APD meets this requirement through the CAPS process

States may waive annual LOC determination for some individuals

An assessment conducted in-person to determine the need forADL supports; IADL supports; andHealth-related tasks supports.

Must include a discussion of: Strengths, Preferences; and Goals for the services and supports.



4

Functional needs assessment must be conductedAt least every 12 months, When the individual’s needs change, and Whenever requested by the individual

Client Assessment and Planning System (CAPS) meets the functional needs assessment requirement

The person-centered planning process: Includes people chosen by the individualEnsures that the individual directs the

process Enables the individual to make informed

choices and decisionsOccurs timely and at times/locations of

convenience to the individual



5

The person-centered planning process must: Include clear conflict-of-interest

guidelines for all planning participantsOffer choices to the individual regarding

the services and supports they needs and from whom

Record the different home and community-based settings that were considered by the individual

The person-centered service plan must reflect the services and supports that:Are important for the individual to meet

their needs identified in the functional assessment

Are based on the individual's preferencesMeet the level of need of the individual



6

Be finalized and agreed to in writing by the individual

Be distributed to the individual and other people involved in the plan

Prevent the provision of unnecessary or inappropriate care

The plan must be reviewed, and revised upon reassessment of functional need, at least every 12 months, when the individual’s circumstances or

needs change significantly, and at the request of the individual



7

Natural supports cannot supplant paid services unless: The natural supports are provided

voluntarily to the individual in lieu of an attendant;

The natural supports must have the skills and ability to meet the needs to the individuals; and

The individual must want the services to be provided by the natural support.

Individuals have the ultimate choice regarding: Services and supports they want to

receive;Where services and supports are

provided; andWho provides the support.

The individual selects the setting from among all available options

14



8

Assistance with ADLs, IADLs, and health-related tasks

Acquisition, maintenance, and enhancement of skills necessary for the individual to accomplish ADLs, IADLs, and health-related tasks

Backup systems or mechanisms to ensure continuity of services and supportsE.g., ERS

Voluntary training on how to select, manage, and dismiss attendants E.g., STEPS



9

Transition costs: rent and utility deposits, first month's rent and utilities, bedding, basic kitchen supplies, and other necessities linked to an assessed

need for an individual to transition from an institution.

Can only be used for someone transitioning from an institution

Expenditures relating to a need identified in an individual's person-centered service plan that: increases independence; or substitutes for human assistance.



10

Waiver Case Management is a service that is designed to:Assist individuals in gaining access to

needed medical, social, educational, and other services.

Only service in the APD waiver. Ensures eligibility for the special income

group.

Assessment and reassessment of individual needs, which includes Taking client historyEvaluation of the individual’s needs

including: medical, social, educational, and other services, and completing related documentation

Gathering information from other sources



11

Development and revisions of a person-centered care plan

Development of a course of action to respond to the assessed needs of the eligible individual

Referral and related activities to help an individual obtain other services

Risk monitoring

Activities necessary to ensure the care plan is implemented and adequately addressing the individual's needs. Services are being furnished in

accordance with the care plan;Services in the plan are adequate; and To determine if there are needed

changes.Changes to the care plan as necessary.



12

Case management CFRs http://www.gpo.gov/fdsys/pkg/CFR-2009-

title42-vol4/pdf/CFR-2009-title42-vol4-sec440-180.pdf

K State Plan CFRs http://www.gpo.gov/fdsys/pkg/FR-2012-

05-07/pdf/2012-10294.pdf Oregon’s K Plan http://www.oregon.gov/dhs/k-

plan/Documents/K%20Option%20State%20Plan%20Amendment.pdf

http://www.gpo.gov/fdsys/pkg/CFR-2009-title42-vol4/pdf/CFR-2009-title42-vol4-sec440-180.pdf



http://www.gpo.gov/fdsys/pkg/FR-2012-05-07/pdf/2012-10294.pdf

http://www.gpo.gov/fdsys/pkg/FR-2012-05-07/pdf/2012-10294.pdf

http://www.oregon.gov/dhs/k-plan/Documents/K%20Option%20State%20Plan%20Amendment.pdf







Chapter 2B

affordable Care act summarydale Marande

Manager, Financial Eligibility and Waiver GroupOregon Department of Human Services, Aging and People with Disabilities

Salem, Oregon

Chapter 2B—Affordable Care Act Summary

Elder Law 2013: Basics to Build On 2B–ii


Elder Law 2013: Basics to Build On 2B–1

aFFOrdaBLE CarE aCt suMMarY

F New Eligibles

G 19 to 64 years old.

G Include the SSDI individuals who are in two-year waiting period for Medicare.

G Cannot receive SSI or Medicare.

G Roughly 230,000 new Medicaid clients expected in next 18 months.

G No more OHP-OPUs or standard benefit package.

G Presumptive Medicaid (PMDDT) applications will drop.

F Use Modified Adjusted Gross Income (MAGI) to determine the income that is counted.

F 138% FPL ($1,285/month for one person) is gross/countable income limit.

F Applications being accepted by Oregon in fall; eligibility begins 1/1/14.

F Most aged and disabled clients will remain in “classic” Medicaid and not move to MAGI Medicaid.

F Insurance exchange (Cover Oregon) will sell health insurance, process tax credits, and refer Medicaid clients to Oregon Health Authority (OHA).

F Workflows, procedures, processes are all currently being worked on.



Chapter 3

dementia: indications, diagnosis, and stages—Presentation slides

shelly svoboda, MdThe Corvallis ClinicCorvallis, Oregon

Chapter 3—Dementia: Indications, Diagnosis, and Stages—Presentation Slides




9/24/2013

1

Dementia: Indications, Diagnosis and Stages

Dementia: Indications, Diagnosis and Stages

Shelly R Svoboda, MDThe Corvallis Clinics

Shelly R Svoboda, MDThe Corvallis Clinics

What is dementia?What is dementia?

Dementia is not one specific disease: it is a general term describing loss of cerebral functionDementias affect different aspects

of cerebral function, but no one type affects the brain uniformly

Dementia is not one specific disease: it is a general term describing loss of cerebral functionDementias affect different aspects

of cerebral function, but no one type affects the brain uniformly



9/24/2013

2

DementiaDementia

Common: estimated prevalence of 11%–16% in people older than 70.

As many as 50% of people with dementia have not been diagnosedLimited resources for formal testingAssumption that symptoms are ‘just old

age’

Common: estimated prevalence of 11%–16% in people older than 70.

As many as 50% of people with dementia have not been diagnosedLimited resources for formal testingAssumption that symptoms are ‘just old

age’



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3

Functional areas of the Cortex

Functional areas of the Cortex

Executive FunctionExecutive Function

Memory

Praxis

Language

Visual/spatial perception

Types of Dementia: Cortical DementiasTypes of Dementia: Cortical Dementias

Primarily involving the cortex, or outer layer of the brain—“Grey Matter”

Functions of these areas include forming memories, using language, making decisions, ability to organize information

Most common cortical dementia is Alzheimer’s Disease. Others include Frontotemporal dementia.

Primarily involving the cortex, or outer layer of the brain—“Grey Matter”

Functions of these areas include forming memories, using language, making decisions, ability to organize information

Most common cortical dementia is Alzheimer’s Disease. Others include Frontotemporal dementia.



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4

Areas of the cortex involved in AD, FTDAreas of the cortex involved in AD, FTD

Frontotemporal DementiaAlzheimer’s Disease

Cortical Dementia: Alzheimer’s DiseaseCortical Dementia: Alzheimer’s Disease

Middle and “temporal” cortexAffects learning new information,

visual/spatial information, understanding how to use objects and what they are for (“praxis”)

Affects language and math skillsUntil later stages, social skills are

usually preserved

Middle and “temporal” cortexAffects learning new information,

visual/spatial information, understanding how to use objects and what they are for (“praxis”)

Affects language and math skillsUntil later stages, social skills are

usually preserved



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Cortical Dementias: Frontotemporal Dementia

Cortical Dementias: Frontotemporal DementiaFrontal and temporal cortex Personality often changed: Can be

unusually irritable, impulsive, irrationalLoss of social skills or interest in social

interactionsLanguage can be severely impaired

Frontal and temporal cortex Personality often changed: Can be

unusually irritable, impulsive, irrationalLoss of social skills or interest in social

interactionsLanguage can be severely impaired

Types of Dementia: Subcortical DementiasTypes of Dementia:

Subcortical DementiasArea of brain under the layer of

cortex—“White Matter”This area coordinates other areas of the

brainDisease in the WM marked by slowness:

of thinking, planning, speaking, remembering. Slowed movement.

Types: vascular, Parkinsonian dementias, normal pressure hydrocephalus

Area of brain under the layer of cortex—“White Matter”

This area coordinates other areas of the brain

Disease in the WM marked by slowness: of thinking, planning, speaking, remembering. Slowed movement.

Types: vascular, Parkinsonian dementias, normal pressure hydrocephalus



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6

Vascular DementiaVascular Dementia

Types of Dementia: Mixed Type (Cortical and Subcortical)

Types of Dementia: Mixed Type (Cortical and Subcortical)

Can have features of both typesLewy Body Dementia—Can look very much like Parkinson’s Disease

at first. Can have tremor, slowness, and stiffness

More rapid progression than PD or ADHallucinations/delusions (paranoia, unreal

thoughts)

Can have features of both typesLewy Body Dementia—Can look very much like Parkinson’s Disease

at first. Can have tremor, slowness, and stiffness

More rapid progression than PD or ADHallucinations/delusions (paranoia, unreal

thoughts)



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Diagnosis of Dementia: Raising the Question

Diagnosis of Dementia: Raising the Question

First suspected by the family, friends rather than by the person affected

Unusual forgetfulness—not remembering conversations, events

Difficulty with making decisions, planning, managing finances

New problems in expressing ideas or understanding conversations, etc.

First suspected by the family, friends rather than by the person affected

Unusual forgetfulness—not remembering conversations, events

Difficulty with making decisions, planning, managing finances

New problems in expressing ideas or understanding conversations, etc.

Diagnosis of Dementia: Rule OutOther Possible Problems

Diagnosis of Dementia: Rule OutOther Possible Problems

Medication complications?New illness?Depression?

Medication complications?New illness?Depression?



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Approach to DiagnosisApproach to Diagnosis

Clinical evaluation: Abnormal movement/gait?EEGBlood testsCT/MRINeuropsychological testing

Clinical evaluation: Abnormal movement/gait?EEGBlood testsCT/MRINeuropsychological testing

Approach to Diagnosis: Office Exam

Approach to Diagnosis: Office Exam

Assessment of general function through gathering of recent and past medical/social history from patient and family/friendsPhysical examination: assess for

other neurologic deficits—movement, coordination, gait

Assessment of general function through gathering of recent and past medical/social history from patient and family/friendsPhysical examination: assess for

other neurologic deficits—movement, coordination, gait



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Approach to Diagnosis: EEG

Approach to Diagnosis: EEG

Recording of the electrical activity of the brainOften generally slower than

normal in dementia. The abnormalities can be symmetrical or asymmetrical.

Recording of the electrical activity of the brainOften generally slower than

normal in dementia. The abnormalities can be symmetrical or asymmetrical.

Approach to Diagnosis: Imaging

Approach to Diagnosis: Imaging

CT (“CAT”) Scan: A specialized type of X-ray Can show size abnormalities (atrophy, enlargement

of the ventricles)

MRI A more detailed view that can demonstrate changes

specific areas of the brain. More sensitive to differentiation of structures and types of tissue

CT (“CAT”) Scan: A specialized type of X-ray Can show size abnormalities (atrophy, enlargement

of the ventricles)

MRI A more detailed view that can demonstrate changes

specific areas of the brain. More sensitive to differentiation of structures and types of tissue



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MRI of the BrainMRI of the Brain

Left: Normal Right: Abnormal—Atrophy (“Shrinkage”) Left: Normal Right: Abnormal—Atrophy (“Shrinkage”)

Approach to Diagnosis: Neuropsychological Testing

Approach to Diagnosis: Neuropsychological TestingMany types of tests for

cognitive/psychological functionSome general, some specific to brain

area/functionMini mental status test: simple office screenMore detailed will include extensive testing

of memory, language, executive function. These tests are much more sensitive and specific.

Many types of tests for cognitive/psychological function

Some general, some specific to brain area/functionMini mental status test: simple office screenMore detailed will include extensive testing

of memory, language, executive function. These tests are much more sensitive and specific.



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Approach to Diagnosis: Lab Tests

Approach to Diagnosis: Lab Tests

Blood tests Low thyroid? Vitamin B12 low?

Inflammation?Spinal Fluid Not a routine test in dementia work-up.

Considered when suspicion of infection, in some cases associated with certain types of cancer.

Genetic testing rarely useful

Blood tests Low thyroid? Vitamin B12 low?

Inflammation?Spinal Fluid Not a routine test in dementia work-up.

Considered when suspicion of infection, in some cases associated with certain types of cancer.

Genetic testing rarely useful

Stages of DementiaStages of Dementia

A way of describing current function level/difficultiesHelpful in guiding

caregivers/family regarding the person’s abilities and need of support.

A way of describing current function level/difficultiesHelpful in guiding

caregivers/family regarding the person’s abilities and need of support.



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Stages of DementiaStages of DementiaMild Cognitive Impairment:General term that suggests a mild decline in

memory, language, and/or executive function when compared to age/education matched expected function

May not progress to actual dementiaUsually used in context of Alzheimer’s type

dementia

Mild Cognitive Impairment:General term that suggests a mild decline in

memory, language, and/or executive function when compared to age/education matched expected function

May not progress to actual dementiaUsually used in context of Alzheimer’s type

dementia

Stages of DementiaStages of Dementia

“Global Deterioration Scale for Assessment of Primary Degenerative Dementia” (GDS)Divides disease process into stages “1–7” Stages 1–3 representing normal (Stage 1)

through mild cognitive impairment (Stage 3)

“Global Deterioration Scale for Assessment of Primary Degenerative Dementia” (GDS)Divides disease process into stages “1–7” Stages 1–3 representing normal (Stage 1)

through mild cognitive impairment (Stage 3)



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Staging Dementia: GDSStaging Dementia: GDS

Stage 4 (Mild/Early Stage AD)Decreased short-term memory,

trouble managing finances, traveling alone to new locations. Difficulty with completing complex tasks. May be moody or withdrawn, particularly in socially or mentally challenging situations. Average duration 2 years.

Stage 4 (Mild/Early Stage AD)Decreased short-term memory,

trouble managing finances, traveling alone to new locations. Difficulty with completing complex tasks. May be moody or withdrawn, particularly in socially or mentally challenging situations. Average duration 2 years.

Staging Dementia: GDSStaging Dementia: GDSStage 5 (Moderate AD)Memory and thinking problems are

noticeableNeeds help with day to day activities.Difficulty with making decisions about

simple tasksStill able to eat, dress (may need help in

choice), toileting

Stage 5 (Moderate AD)Memory and thinking problems are

noticeableNeeds help with day to day activities.Difficulty with making decisions about

simple tasksStill able to eat, dress (may need help in

choice), toileting



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Staging Dementia: GDSStaging Dementia: GDS

Stage 6: Moderately Severe ADOngoing decline in memory, need for

extensive help in daily activitiesLoses awareness of recent experiences,

surroundingsRemembers name and recognizes close family

members but may not recall their namesNeeds help with dressing, toilet Sleep patterns may change: daytime

sleeping/nighttime awakeningPersonality or behavioral changes

Stage 6: Moderately Severe ADOngoing decline in memory, need for

extensive help in daily activitiesLoses awareness of recent experiences,

surroundingsRemembers name and recognizes close family

members but may not recall their namesNeeds help with dressing, toilet Sleep patterns may change: daytime

sleeping/nighttime awakeningPersonality or behavioral changes

Staging Dementia: GSDStaging Dementia: GSDStage 7: Severe/Late Stage ADThe final stage of dementia.Loss of ability to respond to their

environment, to have conversation (may still say words or phrases but without clear meaning)

Need help with all activities of daily living: eating, dressing, toileting. May lose motor function and need help in sitting, holding up head

Stage 7: Severe/Late Stage ADThe final stage of dementia.Loss of ability to respond to their

environment, to have conversation (may still say words or phrases but without clear meaning)

Need help with all activities of daily living: eating, dressing, toileting. May lose motor function and need help in sitting, holding up head





Chapter 4

diminished Capacity and Legal EthicstiM Mcneil

Davis Pagnano McNeil & Vigna LLPPortland, Oregon

Contents

I. Common Elder Law Scenarios When an Attorney Manages a Client’s Diminished Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1

II. The Golden Rule of Managing a Client’s Diminished Capacity . . . . . . . . . . . . . . . . . 4–1

III. Assessing Incapacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1A. What Level of Capacity Is Required to Accomplish the Task? . . . . . . . . . . . . . . 4–1B. What Is My Client’s General Level of Capacity? . . . . . . . . . . . . . . . . . . . . . . 4–2

IV. Guidelines for Representing Incapacitated Clients. . . . . . . . . . . . . . . . . . . . . . . . . 4–2A. Estate Planning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2B. Medicaid Planning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2C. Protective Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2

AppendixA. HB 2570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–5B. Letter Illustrating Court’s Discretion Regarding Appointment of Attorney . . . . . . 4–9

Chapter 4—Diminished Capacity and Legal Ethics




i. COMMOn ELdEr Law sCEnariOs wHEn an attOrnEY ManaGEs a CLiEnt’s diMinisHEd CaPaCitY

A. Representing respondent or protected person in protective proceeding. ORS 125.300(3) states that a protected person retains the right to contact and retain counsel.

B. Client’s child or agent approaches attorney about client’s need for guardian.

C. Deathbed wills and/or client requests amendment to estate plan.

ii. tHE GOLdEn ruLE OF ManaGinG a CLiEnt’s diMinisHEd CaPaCitY

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

ORPC 1.14, Client with Diminished Capacity.

iii. assEssinG inCaPaCitY

(Please see also Michael Levelle’s materials on this subject, presented in OLI’s Guardianships and Conservatorships CLE, October 31, 2003, pp. 7-19 through 7-23.)

a. what Level of Capacity is required to accomplish the task?

1. Contracts. “To have mental capacity to contract it is necessary that a person have the ability to comprehend the nature of the transaction in which he is engaged and to understand its quality and consequences.” Kruse v. Coos Head Timber Co., 248 Or 294, 306.

2. deeds. At time of deed, grantor must have the ability to understand the nature and effect of act in which he was engaged and business in which he was transacting. First Christian Church v. McReynolds, 194 Or 68, 72.

3. wills. Testator at time he executes last will must understand the nature of the act, the nature and extent of his property, and the claims of people who are or might be the natural objects of his bounty and be aware of the scope and provisions of the document. Kastner v. Husband, 231 Or 133, 135–136.

4. trusts. “A person who has capacity to make a will has capacity to create, amend, revoke or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust.” ORS 130.500.

5. Power of attorney. No Oregon case law. Split in other jurisdictions: (a) grantor must have capacity to perform acts contemplated in document, Beaucar v. Bristol Federal Savings and Loan Association, 268 A2d 679, 687 (CT 1969); (b) grantor must understand the nature and effect of act, Golleher v. Horton, 715 P2d 1225, 1228 (Ariz App 1985).



B. what is My Client’s General Level of Capacity?

1. interview Client

a. Can client explain why an action is necessary?

b. Is client’s explanation consistent with goals client has articulated in the past?

c. What is client’s degree of mental alertness, ability to understand relevant information?

d. Can client understand the consequences of an action?

2. interview Family Members, Friends, doctors, Caseworkers

a. Caution:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to disclose the intention of the lawyer’s client to commit a crime and the information necessary to prevent the crime; (2) to prevent reasonably certain death or substantial bodily harm;

. . . .

(5) to comply with other law, court order, or as permitted by these Rules; or

. . . .

ORPC 1.6, Confidentiality of Information.

b. Discover any objective evidence of incapacity.

iV. GuidELinEs FOr rEPrEsEntinG inCaPaCitatEd CLiEnts

General Guideline: More meetings, more time may be required for clients of diminished capacity.

a. Estate Planning

1. When capacity is questionable, recording the execution of estate planning documents is not advised.

2. When the estate plan is likely to be controversial and the client is concerned about sparking controversy, suggest a formal evaluation of client’s capacity.

B. Medicaid Planning

After representing two spouses in estate planning, an attorney may not be able to represent either spouse in aspects of Medicaid planning (asset transfers).

C. Protective Proceedings

1. Conflicts of interest. Conflict rules prevent an attorney from representing a petitioner in a guardianship action when the respondent is a client or former client

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a current conflict of interest. A current conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer; or . . .



(b) Notwithstanding the existence of a current conflict of interest under paragraph (a), a lawyer may represent a client if:

. . . .

(4) each affected client gives informed consent, confirmed in writing.

ORPC 1.7, Conflict of Interest: Current Clients.

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless each affected client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, unless each affected client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

(d) For purposes of this rule, matters are “substantially related” if (1) the lawyer’s representation of the current client will injure or damage the former client in connection with the same transaction or legal dispute in which the lawyer previously represented the former client; or (2) there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation of the former client would materially advance the current client’s position in the subsequent matter.

ORPC 1.9, Duties to Former Clients.

2. attorney roles. Although an attorney cannot represent petitioner in an action to appoint a guardian/conservator for a client, other roles exist for the attorney in a protective proceeding.

a. Petitioner. RPC 1.14 allows an attorney to serve as petitioner in protective proceeding when respondent is client.

b. attorney for Court-appointed Fiduciary. ABA Opinion 96-404 suggests that once a court judgment establishes a unity of interest between fiduciary and protected person, the attorney may represent the court-appointed fiduciary and the protected person.

c. Counsel for incapacitated Client

i. assist in response to Guardianship/Conservatorship Petition

(A) Assist with drafting, filing objection.

(B) Assist with mediation, negotiated settlement.

(C) Represent client in contested hearing.

(1) Should client testify?



(2) Is day in court worth cost of litigation?

(3) Is desired outcome in best interests of client?

ii. risks of representation

(A) Securing payment

(1) Objection of client to payment. ORPC 1.6 includes an exception to the confidentiality rule that allows an attorney to defend against a client’s objection to fees:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; . . .

(2) Old rule: ORS 129.095 does not require respondent/protected person’s attorney to secure court approval of fees prior to payment.

(3) New rule: Effective 1/01/14, prior court approval is required for fees of protected person’s attorney (see HB 2570, attached as Appendix A).

(b) Objections. Objection of fiduciary, other parties in legal representation of party who lacks capacity to direct attorney. (Possible remedy: Seek court appointment. However, the court has discretion in this matter. See letter attached as Appendix B.)



77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

Enrolled

House Bill 2570Introduced and printed pursuant to House Rule 12.00. Presession filed (at the request of House In-

terim Committee on Judiciary for Oregon State Bar Elder Law Section)

CHAPTER .................................................

AN ACT

Relating to compensation in protective proceedings; creating new provisions; and amending ORS

125.095.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 125.095 is amended to read:

125.095. (1) Funds of [the protected person] a person subject to a protective proceeding may

be used to pay reasonable [compensation] fees, costs and disbursements to any visitor, attorney,

physician, fiduciary or temporary fiduciary for services [rendered in] related to the protective pro-

ceeding or for services [rendered] provided on behalf of [the fiduciary or protected person] a

fiduciary, respondent, petitioner, cross-petitioner, objector or protected person.

(2) Prior court approval is required before the payment of [the] fees from the funds of a person

subject to a protective proceeding when the payment is to:

(a) [of any visitor or] A physician if the fees are incurred for services relating to proceedings

arising out of the filing of an objection to a petition, cross-petition or motion.

[(3)] (b) An appointed fiduciary [prior court approval is required before payment of compensation

to a fiduciary or to the attorneys for a fiduciary], except that prior court approval is not required

before payment of [compensation] fees to a conservator if the conservator is a trust company that

has complied with ORS 709.030, or if the conservator is the Department of Veterans’ Affairs.

(c) Any attorney who has provided services relating to a protective proceeding, including

services provided in preparation or anticipation of the filing of a petition in a protective

proceeding.

(3) Subject to ORS 125.495 to 125.520, prior court approval is not required before:

(a) Payment of attorney fees incurred prior to the filing of a petition in a protective

proceeding for services unrelated to the protective proceeding; or

(b) Payment for services provided by an attorney who is hired as a mediator for medi-

ation services related to a protective proceeding.

(4) A pleading that alleges a basis for payment of attorney fees is not required before

payment of attorney fees is approved or made under this section.

(5) ORCP 68 does not apply to requests for approval and payment of attorney fees made

under this chapter.

SECTION 2. Section 3 of this 2013 Act is added to and made a part of ORS chapter 125.

SECTION 3. (1) As used in this section, “party” means a person represented by an at-

torney when a request for court approval and payment of attorney fees has been made re-

lating to a protective proceeding under ORS 125.095.

Enrolled House Bill 2570 (HB 2570-A) Page 1

aPPEndiX a—HB 2570



(2) A court shall consider the following factors in determining whether to award attorney

fees under ORS 125.095:

(a) The benefit to the person subject to the protective proceeding by the party’s actions

in the proceeding.

(b) The objective reasonableness of the position asserted by the party.

(c) The party’s self-interest in the outcome of the proceeding.

(d) Whether the relief sought by the party was granted in whole or in part, subject to

the respondent’s right to contest the proceeding.

(e) The conduct of the party in the transactions or occurrences that gave rise to the need

for a protective proceeding, including any conduct of the party that was reckless, willful,

malicious, in bad faith or illegal.

(f) The extent to which an award of attorney fees in the proceeding would deter others

from asserting good faith positions in similar proceedings.

(g) The extent to which an award of attorney fees in the proceeding would deter others

from asserting meritless positions in similar proceedings.

(h) The objective reasonableness of the party and the diligence of the party and the at-

torney during the proceeding.

(i) The objective reasonableness of the party and the diligence of the party in pursuing

settlement of the dispute.

(j) Any other factor the court may consider appropriate under the circumstances of the

proceeding.

(3) A court shall consider the factors specified in subsection (2) of this section in deter-

mining the amount of an award of attorney fees under ORS 125.095. In addition, the court

shall consider the following factors in determining the amount of an award of attorney fees:

(a) The time and labor required in the proceeding, the novelty and difficulty of the issues

involved and the skill needed to provide the legal services.

(b) The likelihood that the acceptance of the employment on behalf of the party by the

attorney would preclude the attorney from other employment, when the likelihood should

be apparent or was made apparent to the party.

(c) The fee customarily charged by an attorney in the locality for similar legal services.

(d) The time limitations imposed by the party or the circumstances of the proceeding.

(e) The experience, reputation and ability of the attorney providing the legal services.

(f) The amount of the attorney fees requested relative to the estate of the person subject

to the protective proceeding, whether or not the estate of the person subject to the protec-

tive proceeding is subject to the direct or indirect control of a conservator.

(4) No single factor listed in subsections (2) and (3) of this section shall be controlling in

the court’s determination regarding attorney fees under this section.

(5) In an appeal from the award of or denial of a request for attorney fees under ORS

125.095 and this section, the court reviewing the award may not modify the decision of the

court below in making or denying an award, or the decision of that court as to the amount

of the award, except upon a finding of an abuse of discretion.




Passed by House March 6, 2013

..................................................................................

Ramona J. Line, Chief Clerk of House

..................................................................................

Tina Kotek, Speaker of House

Passed by Senate May 2, 2013

..................................................................................

Peter Courtney, President of Senate

Received by Governor:

........................M.,........................................................., 2013

Approved:

........................M.,........................................................., 2013

..................................................................................

John Kitzhaber, Governor

Filed in Office of Secretary of State:

........................M.,........................................................., 2013

..................................................................................

Kate Brown, Secretary of State






aPPEndiX B—LEttEr iLLustratinG COurt’s disCrEtiOn rEGardinG aPPOintMEnt OF attOrnEY



Chapter 5a

appointing representatives and agentsKathi d. holMbecK

James & Holmbeck LLCGrants Pass, Oregon

Contents

I. Choosing Fiduciaries, Agents, and Other Representatives . . . . . . . . . . . . . . . . . . . 5A–1

II. Disability Issues and Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–1

III. Powers of Attorney—ORS Chapter 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–2A. When Does a Power of Attorney Become Effective? . . . . . . . . . . . . . . . . . . . 5A–2B. Limited Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–2C. Springing Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–2D. “Financially Incapable” Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–2E. Making the Determination of Financial Incapacity . . . . . . . . . . . . . . . . . . . 5A–2F. Acts Performed While Principal Is Financially Incapable . . . . . . . . . . . . . . . . 5A–3G. Accountability to Conservator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–3H. Revocation or Termination of Power of Attorney . . . . . . . . . . . . . . . . . . . . 5A–3I. Does a Power of Attorney Expire? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–3J. Liability for Reliance on Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . 5A–3K. Duty of Agent to Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–3L. Gifting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–3M. Discussions with Clients—Who Is the Right Candidate? . . . . . . . . . . . . . . . . 5A–3N. Are the Concerns Something That Can Be Addressed by Limiting the Power of

Attorney? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4O. Can Anything Be Done to Give the Agent Guidance Regarding His or Her

Duties? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4

IV. Nomination of Guardian/Conservator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4A. Ways a Person Can Nominate a Guardian and/or Conservator . . . . . . . . . . . . 5A–4B. Who Gets Appointed If No One Is Nominated? . . . . . . . . . . . . . . . . . . . . . 5A–4C. Does It Mean That Person Nominated Will Be the One the Judge Appoints?. . . . . 5A–4

V. Health Care Advance Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4

VI. Declaration for Mental Health Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4A. Can I Plan Now for the Mental Health Treatment I Would Want If I Were in

Crisis? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4B. How Can I Plan Ahead?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–4C. Who Decides If I Am Unable to Make My Own Treatment Decisions? . . . . . . . . 5A–4D. What Kind of Advance Planning Does Oregon’s Declaration for Mental Health

Treatment Allow Me to Make? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–5E. Can I Ask Someone to Speak for Me When I Am in Crisis and Can’t Speak for

Myself? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–5F. Do I Have to Choose a Lawyer? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–5G. Can My Representative Make Mental Health Treatment Decisions That Change

My Own Wishes for Treatment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–5H. How Can I Make Sure That My Instructions Will Be Followed? . . . . . . . . . . . . 5A–5I. Can My Instructions Ever Be Changed?. . . . . . . . . . . . . . . . . . . . . . . . . . 5A–5

Chapter 5A—Appointing Representatives and Agents

Elder Law 2013: Basics to Build On 5A–ii

J. If I Make Out and Sign a Declaration for Mental Health Treatment, Will It Be Good Forever? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–5

K. Can I Change My Written Instructions for Mental Health Treatment or Cancel My Declaration Form?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–6

L. If I Move out of the State of Oregon, Will My Declaration Form Be Valid? . . . . . . 5A–6M. Can Anyone Force Me to Make Out a Declaration for Mental Health ? . . . . . . . . 5A–6

VII. Disposition of Human Remains—ORS 97.130 . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–6A. Individual Right to Control Remains . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–6B. Who Makes Decisions About Remains If No Written Designation Was Made?. . . . 5A–6C. Can a Person Delegate the Authority to Make Decisions to a Specific Person? . . . . 5A–7D. What If the Person Was an Anatomical Donor? . . . . . . . . . . . . . . . . . . . . . 5A–7E. Can the Disposition Be Changed by the Family?. . . . . . . . . . . . . . . . . . . . . 5A–7

VIII. Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–7A. Common Types of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–7B. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–7C. Relevant Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A–8

AppendixesA. Sample Form: Durable Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . 5A–13B. Sample Form: Letter from Principal to Attorney-in-Fact and Alternate . . . . . . . 5A–17C. Sample Form: Addendum to the Advance Directive. . . . . . . . . . . . . . . . . . 5A–19D. Sample Form: Appointment of Person to Make Decisions Concerning

Disposition of Remains Under ORS 97.130(7) . . . . . . . . . . . . . . . . . . . . . 5A–21

Contents (continued)



i. CHOOsinG FiduCiariEs, aGEnts, and OtHEr rEPrEsEntatiVEs

Getting clients to address the fact that, just like everyone else, they will get old, they may have health problems, their cognitive abilities may decline, can be daunting. No one wants to accept that it will happen to them. The best thing they can do to ease their anxiety about these future possibilities is to take the steps to make plans. There are a number of ways planning can happen.

One of the most important decisions your client needs to make is who to nominate in planning documents. This decision is one that should not be taken lightly. Often the client will name his/her child or spouse without giving the matter much thought. An informed client should really assess whether that person is the right one for the kind of agency he/she wants to grant. Take the time to work through this with your client. Someone who may be perfectly suitable as an agent-in-fact may not be suited to serve as guardian. Clients who take the steps to prepare planning documents do so because they want to ensure that their wishes are carried out. They want to maintain their independence and should expect that their agents are going to act in was that honor their wishes and treat them with the dignity and respect they deserve.

Questions clients should ponder before making appointments of fiduciaries and agents:

F Is this someone I can trust to make decisions that are consistent with my wishes?

F Will the person be respectful of me and my family members?

F Will the person work with me and help me remain as independent as possible?

F Does the person have adequate knowledge of my living situations or choices?

F Does the person have the knowledge?

F Does the person have the time?

F Possess financial or business management skills?

F Is he or she responsible in his or her own life?

F Are there family dynamics that may be problematic?

F Can the person handle difficult family members?

F Can the person make the difficult decisions about my health care and living choices?

F Are there people other than family who may be better options?

F Is there a potential for self-dealing? Is it probable if I pick a certain person?

F Is the person going to respect my privacy and only take action when necessary?

ii. disaBiLitY issuEs and trusts

A key benefit of a trust is that the settlor can control the circumstances under which a named successor trustee takes over management of the trust and can name a specific individual as successor trustee. The procedure for removing the settlor/trustee is often boilerplate in an attorney’s trust document and may involve the successor trustee getting a certification from the settlor’s primary physician prior to removal of the trustee. As with any nomination or appointment, this procedure should be reviewed and customized to fit the needs and desires of the settlor.

Variations:

F Signed certification of “incapacity” by one physician;

F Signed certification of “incapacity” by two physicians;

F Successor must file petition with court and seek removal;

F Signed certification of “incapacity” by successor trustee with no further verification.



iii. POwErs OF attOrnEY—Ors CHaPtEr 127

Powers of attorney can be a valuable tool for clients in planning for future needs. In the wrong hands, they can also lead to disastrous results.

a. when does a Power of attorney Become Effective?

Once the principal designates another person as an agent by a power of attorney in writing, it is usually effective per the terms in the document.

If the power of attorney document does not does not contain words that otherwise delay or limit the period of time of its effectiveness:

1. The power of attorney becomes effective when executed and remains in effect until the power is revoked by the principal;

2. The powers of the agent are unaffected by the passage of time; and

3. The powers of the agent are exercisable by the agent on behalf of the principal even though the principal becomes financially incapable.

B. Limited Powers of attorney

A principal may limit a power of attorney by its terms in any way such as scope, authority, or duration.

If the limited power of attorney deals with a specific parcel of real property, the property must be adequately described. A reference to a street address or tax account is not sufficient. See ORS 93.600.

C. springing Power of attorney

A springing power of attorney is one that, by its terms, becomes effective at a specified future time or will become effective upon the occurrence of a specified future event or contingency such as the principal becoming financially incapable. ORS 127.005(2).

If a power of attorney becomes effective upon the occurrence of a specified future event or contingency, the power of attorney may designate a person or persons to determine whether the specified event or contingency has occurred and the manner in which the determination must be made. ORS 127.005(2).

d. “Financially incapable” defined

“Financially incapable” means a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. . . .

ORS 125.005.

E. Making the determination of Financial incapacity

The power of attorney should state who makes the determination of financial incapacity.

If either the power of attorney does not designate a person or persons to make the determination as to whether the principal is financially incapable or none of the designated persons is willing or able to make the determination, a determination that the principal is financially incapable may be made by any physician. The physician’s determination must be made in writing. ORS 127.005(3).



F. acts Performed while Principal is Financially incapable

All acts done by an agent under a power of attorney during a period in which the principal is financially incapable have the same effect and inure to the benefit of and bind the principal as though the principal were not financially incapable. ORS 127.005(4).

G. accountability to Conservator

If a conservator is appointed for a principal, the agent shall account to the conservator, rather than to the principal, for so long as the conservatorship lasts. ORS 127.005(5).

The conservator has the same power that the principal would have to revoke, suspend, or terminate all or any part of the power of attorney. ORS 127.005(5).

H. revocation or termination of Power of attorney

Unless otherwise revoked by the principal or by the occurrence of some specified event, a power of attorney is revoked upon the death of the principal. ORS 127.015(1).

Any action taken by an agent who acts in good faith and without actual knowledge of the death of the principal or other event may bind the principal and heirs, devises, and personal representatives of the principal. ORS 127.015.

i. does a Power of attorney Expire?

A power of attorney may expire per the terms of the granting document.

A person may not refuse to recognize the authority of an agent under a power of attorney based solely on the passage of time since the power of attorney was executed. ORS 127.025.

J. Liability for reliance on Power of attorney

Any person who reasonably relies in good faith on the authority of an agent under a power of attorney is not liable to any other person based on that reliance and is not required to ensure that assets of the principal that are paid or delivered to the agent are properly applied. . ORS 127.035.

Any person who has not received actual notice of revocation of a power of attorney is not liable to any other person by reason of relying on a power of attorney that has been revoked. ORS 127.035.

K. duty of agent to Principal

Unless otherwise provided in the power of attorney document, an agent must use the property of the principal for the benefit of the principal. ORS 127.045.

L. Gifting

The authority of the agent to make gifts is frequently disputed and litigated. The act of gifting creates a conflict between the terms of the document and the duty of the agent to the principal.

The agent must use the property of the principal for the benefit of the principal unless it is stated otherwise in the power of attorney document. ORS 127.045.

An agent may not give gifts of the principal’s assets without the specific authority to do so. An agent’s authority granted by a power of attorney will be strictly construed by the courts if challenged. See Coulter v. Portland Trust Co., 20 Or. 469.

M. discussions with Clients—who is the right Candidate?

See “Choosing Fiduciaries, Agents, and Other Representatives,” above.

If there is no one in the person’s life who is trustworthy, don’t have the client execute the document. The costs of getting a guardian and/or conservator appointed may a better alternative than to deal with the consequences of choosing an inappropriate agent.



n. are the Concerns something that Can Be addressed by Limiting the Power of attorney?

If so, draft the document to fit the needs of the client. Common limitations include limiting the use to a specific purpose or limiting the duration of effectiveness.

O. Can anything Be done to Give the agent Guidance regarding His or Her duties?

Some attorneys take the position that providing guidelines to the agent would be a conflict of interest. It is up to the attorney to determine whether this should be a part of his or her practice.

Some attorneys provide the principal with a cover letter to the agent that lays out the agent’s duty to the principal. A sample form letter from the principal to the agent can be found in the forms section of this chapter.

iV. nOMinatiOn OF Guardian/COnsErVatOr

a. ways a Person Can nominate a Guardian and/or Conservator

1. Through power of attorney.

2. Separate, standalone document.

3. Trust or will?

B. who Gets appointed if no One is nominated?

The court shall appoint the most suitable person who is willing to serve as fiduciary after giving consideration to the specific circumstances of the respondent, any stated desire of the respondent, the relationship by blood or marriage of the person nominated to be fiduciary to the respondent, any preference expressed by a parent of the respondent, the estate of the respondent and any impact on ease of administration that may result from the appointment.

ORS 125.200.

C. does it Mean that Person nominated will Be the One the Judge appoints?

No. But the court will use the fact that the person was nominated as a factor in determining the “most suitable.”

V. HEaLtH CarE adVanCE dirECtiVE

See Sample Addendum in forms section of this chapter.

Vi. dECLaratiOn FOr MEntaL HEaLtH trEatMEnt1

a. Can i Plan now for the Mental Health treatment i would want if i were in Crisis?

Yes. You can plan now for a time when you may be unable to make your own mental health treatment decisions.

B. How Can i Plan ahead?

Oregon has a form that you can fill out and sign now to protect yourself when you may be in crisis and are unable to make your own treatment decisions. This form is called a Declaration for Mental Health Treatment.

C. who decides if i am unable to Make My Own treatment decisions?

Only a court or two physicians can decide if you are unable to understand and make decisions about your mental health treatment.

1 The information provided in this section was taken from the pamphlet “Can I Plan Now for the Mental Health Treatment I Would Want If I Were In Crisis?” published by the Addictions and Mental Health Division of the Oregon Health Authority. The pamphlet, instructions, and form can be found online at http://www.oregon.gov/oha/amh/forms/declaration.pdf.

http://www.oregon.gov/oha/amh/forms/declaration.pdf



A declaration form is used only when you are unable to understand and make decisions about your mental health treatment.

d. what Kind of advance Planning does Oregon’s declaration for Mental Health treatment allow Me to Make?

You can make choices about your future mental health care. You can describe the kind of care that you want to receive. You can also describe the kind of care you do not want to receive.

You can also provide additional information about your mental health treatment needs.

It is wise to prepare this part of the declaration carefully. You may want to discuss this section with your physician or mental health provider.

E. Can i ask someone to speak for Me when i am in Crisis and Can’t speak for Myself?

Yes. You can choose an adult to represent you. This should be someone you trust who can make decisions about your mental health care when you cannot do so for yourself. Of course, the person you name must agree to do so.

On the declaration form, the person you choose is called a representative.

F. do i Have to Choose a Lawyer?

No.

G. Can My representative Make Mental Health treatment decisions that Change My Own wishes for treatment?

No. Your representative must follow your wishes. It is wise to talk to your representative about your wishes.

Even if you have not made your wishes known, your representative must make decisions that are as close as possible to the kind of decision you would make yourself if you were capable of doing so.

Your physician is not required to give you the medicine you have chosen in your declaration form if your physician believes that it is not good for you. However, your physician must have your representative’s permission to give you a medicine that is not listed in the declaration.

This is why it is important for you to choose someone who knows you well and whom you trust.

H. How Can i Make sure that My instructions will Be Followed?

In order for your instructions to be followed, you or your representative must give copies of your completed declaration form to your physician or mental health provider. Your representative should keep a copy, and it is wise to keep a copy for yourself.

i. Can My instructions Ever Be Changed?

Whether or not you have signed a declaration form, if you are on an emergency psychiatric hold, or if you have been committed by a court, your physician may still give you medicine that you didn’t want. Your physician can only do this under very strict legal guidelines.

J. if i Make Out and sign a declaration for Mental Health treatment, will it Be Good Forever?

No. A signed Declaration for Mental Health Treatment only will be valid for three years and must be renewed. However, should you become incapable of making mental health treatment decisions during these three years, the declaration will remain until the time— whenever that may be—that you regain capacity to make your own decisions.



K. Can i Change My written instructions for Mental Health treatment or Cancel My declaration Form?

Yes. As long as you are able to understand the information given to you about the choices that you may make for your mental health treatment, you may change your written mental health treatment instructions or cancel your declaration form.

Of course, in order to make sure that your wishes are followed, you must give your physician or mental health provider a new declaration form that includes the changes you wish.

However, if a court or two physicians decide that you are unable to understand your mental health treatment options and you are not capable of making choices about your mental health treatment, you will not be permitted to change your written instructions or to cancel your declaration until the time that you regain capacity to understand your treatment options.

But this is why you have written out your future wishes on this Declaration for Mental Health Treatment form: You want to protect yourself when you are in crisis and are unable to make your own treatment decisions.

L. if i Move out of the state of Oregon, will My declaration Form Be Valid?

It depends on where you go. Each state has its own rules.

M. Can anyone Force Me to Make Out a declaration for Mental Health ?

No. No one, no insurer, no physician, no mental health treatment provider, nor any other person is permitted to attempt to force you to make out a declaration form. It should be your free choice to make out and sign the Declaration for Mental Health Treatment.

Witnesses who sign your declaration form should be people you know and trust. They can verify that you signed the form by your own free choice, without being forced.

Vii. disPOsitiOn OF HuMan rEMains—Ors 97.130

a. individual right to Control remains

Any individual of sound mind who is 18 years of age or older, by completion of a written signed instrument or by preparing or prearranging with any funeral service practitioner licensed under ORS chapter 692, may direct any lawful manner of disposition of the individual’s remains. Except as provided under subsection (6) of this section, disposition directions or disposition prearrangements that are prepaid or that are filed with a funeral service practitioner licensed under ORS chapter 692 are not subject to cancellation or substantial revision.

ORS 97.130(1).

See sample “Appointment of Person to Make Decisions Concerning Disposition of Remains” in forms section of this chapter. Form is also found at ORS 97.130(7).

B. who Makes decisions about remains if no written designation was Made?

A person within the first applicable listed class among the following listed classes that is available at the time of death, in the absence of actual notice of a contrary direction by the decedent as described under subsection (1) of this section or actual notice of opposition by completion of a written instrument by a member of the same class or a member of a prior class, may direct any lawful manner of disposition of a decedent’s remains by completion of a written instrument:

(a) The spouse of the decedent.

(b) A son or daughter of the decedent 18 years of age or older.



(c) Either parent of the decedent.

(d) A brother or sister of the decedent 18 years of age or older.

(e) A guardian of the decedent at the time of death.

(f) A person in the next degree of kindred to the decedent.

(g) The personal representative of the estate of the decedent.

(h) The person nominated as the personal representative of the decedent in the decedent’s last will.

(i) A public health officer.

ORS 97.130(2).

C. Can a Person delegate the authority to Make decisions to a specific Person?

Yes, the decedent may delegate such authority to any person 18 years of age or older. Delegation must be made by written instrument consistent with statute. The person to whom authority is delegated has the same authority as the person delegating. If more than one delegation was made, only the most recent is binding. ORS 97.130.

d. what if the Person was an anatomical donor?

A donation of anatomical gifts under ORS 97.951 to 97.982 takes priority over directions for the disposition of a decedent’s remains under this section only if the person making the donation is of a priority under subsection (1) or (2) of this section the same as or higher than the priority of the person directing the disposition of the remains.

ORS 97.130(5).

E. Can the disposition Be Changed by the Family?

Generally, no.

Exception: If an individual directs a disposition under ORS 97.130(1) and those financially responsible for the disposition are without sufficient funds to pay for such disposition or the estate of the decedent has insufficient funds to pay for the disposition, or if the direction is unlawful, the direction is void and disposition shall be in accordance with the direction provided by the person given priority in subsection (2) of this section and who agrees to be financially responsible. ORS 97.130(6).

Viii. BanK aCCOunts

a. Common types of accounts

1. Single owner.

2. Joint or multiple owner.

B. definitions

1. Joint account. “ ‘Joint account’ means an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship.” ORS 708A.455(3).

2. net Contribution

“Net contribution” of a party to a joint account as of any given time means the sum of all deposits thereto made by or for the party, less all withdrawals made by or for the party that have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes, in addition,



any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question.

ORS 708A.455(5).

3. Party

“Party” means a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to the payee or beneficiary by reason of the payee’s or beneficiary’s surviving the original party or trustee. Unless the context requires otherwise, “party” includes a guardian, conservator, personal representative or assignee, including an attaching creditor, of a party. “Party” also includes a person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless the named beneficiary has a present right of withdrawal.

ORS 708A.455(6).

4. P.O.d. account

“P.O.D. account” means an account payable on request to one person during the lifetime of the person and on the death of the person to one or more P.O.D. payees, or to one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees.

ORS 708A.455(8).

5. P.O.d. Payee. “ ‘P.O.D. payee’ means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one or more persons.” ORS 708A.455(9).

C. relevant statutes

708a.465 Ownership of multiple-party accounts. (1) A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.

(2) A P.O.D. account belongs to the original party during the lifetime of the party and not to the P.O.D. payee or payees. If two or more persons are named as original parties, during their lifetimes, rights as between them are governed by subsection (1) of this section.

(3) Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during the lifetime of the trustee. If two or more parties are named as trustees on the account, during their lifetimes beneficial rights as between them are governed by subsection (1) of this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary. [1997 c.631 §174]

708a.470 Multiple-party accounts; disposition of deposit upon death of party or trustee; effect of will. (1) Sums remaining on deposit in a bank at the death of a party to a joint account are rebuttably presumed to belong to the surviving party or parties as against the estate of the decedent. If there are two or more surviving parties, their respective ownerships during their lifetimes shall be in proportion to their previous ownership interests under ORS 708A.465 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before death. The right of survivorship continues between the surviving parties.



(2) If the account is a P.O.D. account:

(a) On the death of one of two or more original parties, the rights to any sums remaining on deposit are governed by subsection (1) of this section.

(b) On the death of the sole original party or the survivor of two or more original parties, any sums remaining on deposit belong to the P.O.D. payee or payees, if surviving, or to the survivor of them if one or more die before the original party. If two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.

(3) If the account is a trust account:

(a) On the death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subsection (1) of this section.

(b) On the death of the sole trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a contrary intent. If two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.

(4) In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account, other than to transfer the rights of the decedent as part of the estate of the decedent.

(5) A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a trust account, or a P.O.D. payee designation, cannot be changed by will.

(6) The rebuttable presumption under subsection (1) of this section may be overcome by evidence establishing that:

(a) The deceased party intended a different result; or

(b) The deceased party lacked capacity when the joint account was established.

(7) A bank is not liable for distributing sums remaining on deposit at the death of a party to a joint account to a surviving party or parties in accordance with the account agreement unless, prior to distributing sums to a surviving party or parties:

(a) The bank has received notice of an adverse claim under ORS 708A.435; and

(b) The adverse claimant proceeds as required under ORS 708A.435. [1997 c.631 §175; 2003 c.256 §1]

708a.475 rights of survivorship based on form of account; alteration of form of account. The provisions of ORS 708A.470 as to rights of survivorship are determined by the form of the account at the death of a party. Subject to satisfaction of the requirements of the financial institution, the form of an account may be altered by written order given by a party to the financial institution. The order must be signed by a party, received by the financial institution during the party’s lifetime, and not countermanded by other written order of the same party during the lifetime of the party. [1997 c.631 §176]

708a.480 transfer of moneys upon death of depositor or trustee is not testamentary disposition. Any transfers resulting from the application of ORS 708A.470 are effective by reason of the account contracts involved and ORS 708A.470, and are not to be considered



as testamentary or subject to administration in the estate of a deceased party. [1997 c.631 §177]

708a.485 Payment of deposit in multiple-party account to one or more parties; institution not required to determine source or use of funds in account. Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request, to any one or more of the parties. A financial institution shall not be required to inquire as to the source of funds received for deposit to a multiple-party account, or to inquire as to the proposed application of any sum withdrawn from an account, for purposes of establishing net contributions. [1997 c.631 §178]

708a.490 Joint account; payment to any party to account; payment to others. Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded. Payment may not be made to the personal representative or heirs of a deceased party unless proofs of death are presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under ORS 708A.470. [1997 c.631 §179]

708a.495 P.O.d. account; payment to any original party; payment to others. Any P.O.D. account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original parties. Payment may be made to the personal representative or heirs of a deceased original party if proof of death is presented to the financial institution showing that the decedent was the survivor of all other persons named on the account either as an original party or as P.O.D. payee. [1997 c.631 §180]

708a.500 trust account; payment to any trustee; payment to others. Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon the beneficiary’s surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that the decedent was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees. [1997 c.631 §181]

708a.505 discharge of institution from liability for payments made; conditions. Payment made pursuant to ORS 708A.485, 708A.490, 708A.495 or 708A.500 discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees or beneficiaries, or their successors. The protection given by this section does not extend to payments made after a financial institution has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in any demand for withdrawal if the financial institution is to be protected under this section. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided by this section. The protection provided by



this section shall have no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts. [1997 c.631 §182]

708a.510 right of institution to setoff; amount. Without qualifying any other statutory or common law right to setoff or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to setoff against the account in which the party has or had immediately before the death of the party a present right of withdrawal. The amount of the account subject to setoff is that proportion to which the debtor is, or was immediately before the death of the debtor, beneficially entitled and, in the absence of proof of net contributions, to an equal share with all parties having present rights of withdrawal. [1997 c.631 §183]

708a.515 designation of agent for account; powers of agent. Nothing in ORS 708A.455 to 708A.465, 716.024, 723.426 or 723.432 shall preclude a party to an account from adding the name of another person to such an account with the designation “agent.” Such agent shall have no present or future interest in the sums on deposit in such account, but the financial institution may honor requests for payment from such account by such agent, unless the principal is deceased at the time the payment is requested and the financial institution has actual knowledge of such death. Payments from such account by such financial institution at the request of such agent shall discharge such financial institution from all claims for amounts so paid. [1997 c.631 §184]





aPPEndiX a—saMPLE FOrM: duraBLE POwEr OF attOrnEY

[JOHn L. dOE]duraBLE POwEr OF attOrnEY

KNOW ALL MEN BY THESE PRESENTS, that I, [John L. Doe] (also known as [Jack Doe]), the undersigned, have made, constituted, and appointed and by these presents do make, constitute, and appoint my initial attorney-in-fact as provided in Section 4, below, (and those alternate attorneys-in-fact named herein in Section 5) as my true and lawful attorney-in-fact, for me and in my name, place, and stead and for my use and benefit, as follows:

1. Powers: The powers exercisable on my behalf by my attorney-in-fact are:

a. To take possession of, manage, maintain, operate, repair, and improve any and all real or personal property now or hereafter belonging to me, to pay the expense thereof, to insure and keep the same insured, and to pay any and all taxes, charges, and assessments that may be levied or imposed upon any thereof;

b. To lease, let, rent, sell, contract to sell, lease with option to purchase, option, convey, bargain or exchange, or mortgage, pledge, or otherwise encumber any real or personal property of which I am now or hereafter may be possessed or in which I may have any right title or interest, for any price or sum and upon such terms and conditions as to my said attorney-in-fact may seem proper;

c. To ask for, demand, recover, collect, and receive all moneys, debts, rents, due accounts, legacies, bequests, interests, dividends, and claims whatsoever that are now or that hereafter may become due, owing, and payable or belonging to me and to have, use and take all lawful ways and means in my name for the recovery of any thereof by attachments, levies, or otherwise;

d. To adjust, settle, compromise, or submit to arbitration any account, debt, claim, demand, or dispute as well as matters that are now subsisting or hereafter may arise between me or my said attorney-in-fact and any other person or persons;

e. To sell, discount, endorse, negotiate, and deliver any check, draft, order, bill of exchange, promissory note, or other negotiable paper payable to me and to collect, receive, and apply the proceeds thereof for my use for any of the purposes set forth herein; to pay to or deposit the same or any other sum of money coming into the hands of my attorney-in-fact in checking and in savings accounts, on which my name appears, with any bank of my attorney’s selection and to draw out moneys deposited to my credit with any bank, including deposits in savings and checking accounts, and to apply the same for any of the purposes of my business as my said attorney-in-fact may deem expedient; to purchase and sell certificates of deposit; and generally to conduct any and all banking transactions on my behalf;

f. To commence and prosecute and to defend against, answer, and oppose all actions, suits, and proceedings touching any of the matters aforesaid or any other matters in which I am or hereafter may be interested or concerned;

g. To have access to any safety deposit box that has been or may be rented in my name or in the name of myself and any other person or persons;

h. In connection with any of the powers herein granted, to sign, make, execute, acknowledge, and deliver in my name any and all contracts, bills of sale, leases, drafts, checks, acceptances, obligations, satisfactions, releases, acquittances, receipts, bonds, writs, deeds, mortgages, trust deeds, and any and all other instruments whatsoever, with such general or special agreements and covenants, including those of warranty, as to my said attorney-in-fact may seem right, proper, and expedient;

i. To employ, pay, and discharge clerks, workmen, brokers, and others, including counsel and attorneys in connection with the exercise of any of the powers herein;



j. To execute for me all federal and state income tax returns, amended returns, federal estimated tax declarations, and any and all other forms and documents necessary or desirable in connection with my state or federal tax refund checks and any other checks of any kind or nature;

k. To conduct, manage, and control all my business and my property, wheresoever situated, as my said attorney-in-fact may deem for my best interests, hereby releasing all third persons from responsibility for the acts and omissions of my said attorney-in-fact;

l. To prepare and execute any one or more revocable or irrevocable trusts intended to qualify me for any governmental benefits and programs, including but not limited to that known as Medicaid, and with such trusts including but not limited to those known as income cap trusts;

m. To execute any and all documents required to qualify me for any governmental benefits and programs, including but not limited to those known as Medicaid, Medicare, and SSI;

n. To disclaim any property, interest in property, or power to which I may be entitled, and to take all steps required to make the disclaimer effective under state and federal laws, including but not limited to Section 2518 of the Internal Revenue Code and any successor statute, and in deciding whether to disclaim, my attorney-in-fact shall consider the effect of disclaimer on taxes that may be payable, on qualification for government benefits, and on my existing estate plan;

o. To make gifts on my behalf to any one or more of my children, grandchildren, and other issue of mine, to the full extent of the federal annual gift tax exclusion under Internal Revenue Code section 2503(b) or any successor statute, and for such purposes to remove assets from any grantor revocable trust of which I am the grantor, also known as “trustor”; and

p. To take any and all actions and to exercise all powers as follows, and as otherwise provided in this instrument, in regard to any revocable or irrevocable trust in which I am a Trustor and any trust referred to in Section 1.m., below:

To assign, transfer, convey, deliver, and otherwise give assets and properties of all kinds, real and personal and mixed, in which I have all or any ownership or other interest (including any such assets or properties in which I am a joint owner by survivorship or otherwise with my attorney-in-fact), to the Trustee under the above Trust Agreement and with such assets and properties to be part of the trust estate as provided in the Trust Agreement and subject thereto, and may execute all assignments, bills of sale, deeds, closing and collection escrow instructions, and all other instruments and documents as required to accomplish the foregoing.

2. General: I hereby give and grant to any attorney-in-fact named herein full power and authority freely to do and perform every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes, as I might or could do if personally present, hereby ratifying and confirming all that my said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

3. durable Power of attorney: All provisions of this Power of Attorney shall remain in full force and effect after the execution hereof regardless of any disability or incompetence I may be subject to hereafter.

4. initial attorney-in-Fact: My initial attorney-in-fact under this instrument is the following:

Name: [Jane S. Doe]

Relationship to the undersigned: [Spouse]

5. alternate attorneys-in-Fact: If the above initial attorney-in-fact is ever unable to exercise any or all the powers granted hereby, then I name, constitute, and appoint the following person or persons my alternate attorney-in-fact to exercise any and all powers not capable of being exercised



by the initial attorney-in-fact. Such alternates are in the following priority order, and only one such alternate, in such priority order, may exercise any powers granted herein:

Alternate No. 1: [Bucky C. Doe]

Relationship to the undersigned: [Son]

6. Preparer: This power of attorney has been prepared by [Kathi Holmbeck] from the office of [James and Holmbeck LLC, Attorneys at Law, 130 Northwest “D” Street, Grants Pass, Oregon 97526].

7. revocation of Prior Powers of attorney: I hereby revoke any and all prior powers of attorney I may have executed before the date of execution hereof.

8. request for appointment of Guardian and Conservator: Pursuant to ORS 125.200, I hereby state my desire that if a guardian is required to be appointed by a court for me, that the same shall be the attorney-in-fact as provided in Section 4, above, or, if such person is unable or willing to be so appointed, then in priority order the individuals named in Section 5, above, able and willing to so serve. Also, I hereby state my desire that if a conservator is required to be appointed by a court for me, the same shall be the attorney-in-fact as provided in Section 4, above, or, if such person is unable or willing to be so appointed, then in priority order the individuals and corporate entities named in Section 5, above, able and willing to so serve.

9. authority to admit Principal for Medical Care or Long-term Care: If I am unable to act for myself, I give my attorney-in-fact named herein the authority to admit me to any health care facility, hospital, doctor’s office, long-term care facility, nursing home, or adult foster care facility and to execute any income cap trust to qualify me for Medicaid as part of my admission to any of the above health or long-term care providers.

IN WITNESS WHEREOF, I have hereunto set my hand and seal on this __________ day of [June 2013].

John L. Doe

STATE OF OREGON ) ) ssCounty of Josephine )

This instrument was acknowledged before me on this __________ day of [June 2013] by [John L. Doe].

Notary Public for Oregon





aPPEndiX B—saMPLE FOrM: LEttEr FrOM PrinCiPaL tO attOrnEY-in-FaCt and aLtErnatE

ATTENTION: __________, my agent and attorney-in-fact; and __________, my alternate agent and attorney-in-fact

rE: POwEr OF attOrnEY FOr [PrinCiPaL’s naME]

TO: [Agent’s Name and Alternate Agent’s Name]

I have delivered to you a signed Power of Attorney naming you as my attorney-in-fact to act on my behalf. I instruct you to hold it unused unless either I expressly ask you to use it or you determine that I have become incapacitated or disabled by illness, age, accident, or absence to the extent that I am unable to manage my own affairs. You are to make the determination whether I am so incapacitated or disabled, and you may do so by any means you decide are adequate. Upon making such a determination, or upon my requesting you to act, I ask you to act on my behalf using your best judgment.

If you act in good faith in the belief that I am so incapacitated or disabled, you shall not be liable for any acts or omissions on your part in reliance upon that belief.

Except in the circumstance just described, it is understood that you will not use the Power of Attorney without my express consent.

Whenever it is incumbent upon you to exercise your powers as my agent or attorney-in-fact, you are to do so in accordance with your best judgment on my behalf, and, provided you are acting within your powers, you shall be responsible for good faith only.

It is understood that you will make no charge for holding this Power of Attorney so long as you are not called upon to act under it. In the event that you have duties to perform under the Power of Attorney, you will be entitled to compensation reasonably commensurate with the work and services performed and the responsibility incurred.

DATED this __________ day of [August 2013].

[Name of Signor]





aPPEndiX C—saMPLE FOrM: addEnduM tO tHE adVanCE dirECtiVE

(See instructions—this Addendum is optional.)

I instruct my health care representative to follow these attached written instructions as further evidence of my end-of-life health care decisions.

_____ Health Care representative decides. I want any decision(s) about life support or tube feeding to be made by my health care representative, after consultation with my doctors and as guided by my health care instructions.

OR

_____ doctor decides. I want any decision(s) about life support or tube feeding to be made by my doctor, after consultation with my health care representative and as guided by my health care instructions.

_____ religious/spiritual Beliefs. It is important that medical decisions made regarding my care are guided by particular religious beliefs or spiritual values as follows:

_____ Pain Control. If I have a terminal diagnosis and can no longer speak for myself, I want to receive enough medication to relieve my pain even though, as a result, I may become unconscious or have difficulty breathing.

_____ Hospital/Hospice. I authorize my health care representative to admit me to the hospital for treatment and diagnosis and to arrange for hospice care as appropriate.

_____ Long-term Care services. My health care representative is authorized to arrange for me to receive long-term care services as appropriate.

_____ Hiring and discharge of doctors. My health care representative is authorized to hire or discharge doctors and other health care professionals.

_____ Medical records. My health care representative may review my medical records and authorize their release to those persons whom my health care representative designates. My health care representative shall be considered my “personal representative” as the term is used in HIPAA. I authorize my physicians and other health care professionals to discuss my medical condition with my health care representative and those designated by my health care representative.

_____ Visitors. I authorize the following individuals to visit me in the hospital or any other care facility to the same extent that my relatives would be allowed to visit me:

_____ Copies of advance directive. A photographic or facsimile copy of this Advance Directive shall have the same force and effect as the original.

_____ Home death. If possible, I would prefer to die at home and not in a hospital or other care facility. When, in the opinion of a licensed physician, I am likely to die within six months, I wish to be transferred to my home. I wish to be transferred to my home even if there is a risk that the transfer itself may accelerate my time of death. However, if dying at home becomes too much of



a burden to my family or others living with me, my health care representative may arrange for me to receive care elsewhere.

_____ Organ donor. I authorize my health care representative to arrange for organ donation upon my death. I have spoken to my family about organ and tissue donation. I wish to donate:

_____ A: Any organ and tissues.

_____ B: Only the following organs or tissues:

_____ C: Entire body for medical education (additional forms needed).

Sign here to give instructions:

Signature Date

iMPortant note: If using this Addendum, go to page 6 of the Advance Directive and add by hand the words “See attached Addendum.” Go to page 7. At the end of the first line (that reads, “We declare that the person signing this advance directive . . .”) add the words “and Addendum.”



aPPEndiX d—saMPLE FOrM: aPPOintMEnt OF PErsOn tO MaKE dECisiOns COnCErninG disPOsitiOn OF rEMains undEr Ors 97.130(7)

I, __________, appoint __________, whose address is __________ and whose telephone number is __________, as the person to make all decisions regarding the disposition of my remains upon my death for my burial or cremation.

In the event __________ is unable to act, I appoint __________, whose address is __________ and whose telephone number is __________, as my first alternate person to make all decisions regarding the disposition of my remains upon my death for my burial or cremation.

It is my intent that this Appointment of Person to Make Decisions Concerning Disposition of Remains act as and be accepted as the written authorization presently required by ORS 97.130 (or its corresponding future provisions) or any other provision of Oregon law, authorizing me to name a person to have authority to dispose of my remains.

DATED: This __________ day of [October 2013].

Signature

dECLaratiOn OF witnEssEs

We declare that __________ is personally known to us, that [he/she] signed this Appointment of Person to Make Decisions Concerning Disposition of Remains in our presence, that [he/she] appeared to be of sound mind and not acting under duress, fraud, or undue influence, and that neither of us is the person so appointed by this document.

Witnessed by:

Date:

Witnessed by:

Date:



Chapter 5B

POLst and advance Care PlanningaMy vandenbroucKe

National POLST Paradigm ProgramPortland, Oregon

Contents

I. What Is POLST? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–1

II. The POLST Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–1A. What Does a POLST Form Order? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–1B. How Does It Work? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–2C. Revisions/Voiding a POLST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–3D. Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–3

III. POLST and Advance Directives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–4A. Key Differences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–4B. Max’s Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–4C. How POLST and Advance Directives Work Together . . . . . . . . . . . . . . . . . . 5B–5

IV. What Is the National POLST Paradigm Program? . . . . . . . . . . . . . . . . . . . . . . . . 5B–5A. Key POLST Paradigm Public Policy Principles. . . . . . . . . . . . . . . . . . . . . . 5B–5B. The National POLST Paradigm Task Force (NPPTF) . . . . . . . . . . . . . . . . . . 5B–6C. The Goals of the NPPTF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–6D. Activities of the NPPTF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–6

V. State POLST Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–7A. How Does POLST Develop? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–7B. Current Status of the POLST Paradigm Program . . . . . . . . . . . . . . . . . . . . 5B–7

VI. What Are the Benefits of POLST? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–8

VII. What Is Needed for POLST to Be Successful? . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–8

VIII. Other Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–9

IX. Other Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–9

Differences Between POLST and Advance Directives in Oregon. . . . . . . . . . . . . . . . . . . 5B–11

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B–13

Chapter 5B—POLST and Advance Care Planning

Elder Law 2013: Basics to Build On 5B–ii



i. wHat is POLst?

The Physician Orders for Life-Sustaining Treatment (POLST)1 is a tool for translating patient’s goals of care into medical orders so that they are easily located and portable across care settings. POLST is not just a specific set of medical orders documented on a form; it is also an approach to end-of-life planning based on conversations between patients, loved ones, and medical professionals. The POLST Paradigm is designed to ensure that seriously ill patients can choose the treatments they want and that their wishes are honored by medical providers.

A key component of the system is thoughtful, facilitated advance care planning conversations between health care professionals and patients and those close to them. Completion of a POLST form requires shared decision making between the health care professional signing the form and the patient or his/her legally authorized health care representative identified pursuant to state law. In order to complete the POLST form, there must be a discussion of the patient’s diagnosis and prognosis; the available treatment options given the current circumstances, including the benefits and burdens of those treatments; and the patient’s goals of care and preferences of treatment. Together they reach an informed decision about desired treatment, based on the person’s values, beliefs, and goals for care. Then, if the person wishes, his or her health care professional completes and signs a POLST form based on the patient’s expressed treatment references.

POLST is not for everyone; only patients with serious advanced illnesses should have a POLST form. For patients where a POLST is appropriate, their current health status indicates the need for standing medical orders for emergent or future medical care. For healthy patients, an advance directive is an appropriate tool for making future end-of-life care wishes known to loved ones. The general guidance is that the POLST form is for seriously ill patients for whom their physicians would not be surprised if they died in the next year. It would be inappropriate to provide a POLST to all patients.

Two key tenets of POLST are:

1. POLST is voluntary because everyone has the right to make his or her own health care decisions; the National POLST Paradigm Task Force (NPPTF) does not endorse programs where completion of a POLST form is mandatory; and

2. POLST must be easily modified or revoked. Oregon’s POLST Registry shows about 15% of POLST forms submitted to the registry each month are modifications of a previous POLST form. As the disease progression continues, patient desires for certain treatments may change, so it is fundamental to the POLST Paradigm Program that POLST forms be easily modified.

ii. tHE POLst FOrM

The POLST form varies among states, but states endorsed by the National POLST Paradigm Task Force have all met the same standards.

a. what does a POLst Form Order?

POLST forms are divided into a couple of key sections; the order may vary by state. For illustration, I will use the Oregon POLST Form as an example.

1. section a: Cardiopulmonary resuscitation (CPr). These orders apply only when the patient has no pulse and is not breathing; this section does not apply to any other medical circumstance.

1 POLST is known by different names in different states, including MOLST (Medical Orders for Life-Sustaining Treatment), MOST (Medical Orders for Scope of Treatment), POST (Physician Orders for Scope of Treatment), LaPOST (Louisiana Physician Order for Scope of Treatment), COLST (Clinician Orders for Life-Sustaining Treatment), IPOST (Iowa Physicians Orders for Scope of Treatment), SMOST (Summary of Physician Orders for Scope of Treatment), TPOPP (Transportable Physician Order for Patient Preference), and SAPO (State Authorized Portable Orders). For simplicity, the term POLST is used when referring to POLST Paradigm forms or programs in general.



If the patient wants CPR, the box should be checked, and full CPR measures should be carried out and 911 called. If the patient does not want CPR, the box should be checked, and CPR should not be performed.

2. section B: Medical interventions. This section is designed to guide care in an acute situation when the patient is not in cardiopulmonary arrest. There are three levels of medical interventions generally found on POLST forms.

a. Comfort Measures Only/allow natural death. The treatment plan is to maximize comfort through symptom management. Antibiotics may be used as a comfort measure. This should be ordered if a patient’s goal is to maximize comfort and avoid hospitalizations unless necessary to ensure comfort needs are met.

b. Limited additional interventions. The treatment plan is to hospitalize if needed but to void mechanical ventilation and generally avoid ICU care. This should be ordered if a patient’s goal is to obtain treatments for reversible conditions or exacerbations of his/her underlying disease with the goal of restoring the patient to his/her current state of health. Examples include hospitalization for dehydration or for pneumonia.

c. Full treatment. The treatment plan should include all life-sustaining treatments possible, including intubation, advanced airway intervention, mechanical ventilation, cardiodiversion, transfer to hospital and use of intensive care as indicated with no limitation of treatment.

While it is possible to order Do Not Resuscitate (DNR) in Section A but Full Treatment in Section B; in this circumstance, a patient would want all measures provided but would not want to be resuscitated if those attempts fail and his/her heart stops. It is not possible to order CPR in Section A and Comfort Measures Only in Section B because, in providing CPR, the next step is for intubation and ventilation, which is not consistent with the Comfort Measures Only option.

3. section C: artificially administered nutrition. These orders indicate the patient’s instructions regarding the use of artificially administered nutrition for a patient who cannot take fluids by mouth. Statutes vary among the states as to the standard for evidence required to limit tube feedings. For endorsement, the NPPTF requires POLST forms to clearly state that “food and fluids must be offered as tolerated.”2

It is also a requirement that comfort measures always be provided to patients and that information be clear on the POLST form.

B. How does it work?

Since POLSTs are medical orders, they can be made to be easily located in an emergency since they are part of the patient’s medical record. There is no requirement for electronic medical record (EMR) systems to provide such easy access to a POLST, or an advance directive, but it should be so that health care professionals are confident they can locate patient wishes in an instant during an emergency (see section VII., below). Additionally, the original POLST form is given to the patient to keep (copies are put in medical records); states use brightly color forms for easy identification by emergency personnel.

Several states, including Oregon, West Virginia, Idaho, Utah, and New York, have registries for POLST forms, ensuring emergency personnel and health care professionals know the treatment wishes of their patients during an emergency. This provides a third avenue in which a form can be located in an instance, because health care professionals can call the 24/7 registry line and get information about a patient’s POLST form.

So, for example, in an emergency in Oregon, when EMTs are called to a scene they will arrive and are trained to look at/in the refrigerator for a bright pink form; patients and families are told

2 POLST Request for Endorsement Program Status Form; Item 9 under “Form Information.”



that this is where the form should be kept. Additionally, EMTs are trained to call the Oregon POLST Registry anytime: (1) they suspect a patient has a POLST; (2) they are told a patient has a POLST but are unable to located it; (3) the patient has a chronic, progressive illness; (4) the patient is a frail or elderly patient; and (5) if a POLST form is produced on the scene but there is a problem or question as to the orders selected or the validity of the form.

The value in having a single form for medical orders allows emergency services personnel to: (1) follow medical orders in the field because they are trained to find information in an instant and (2) incorporate such a procedure in their scope of practice.

C. revisions/Voiding a POLst

As a patient’s disease progresses, his/her goals of care may change, and so it is important that the POLST be easily amended or voided; both are easy procedures in endorsed states.

1. revising a POLst Form. The health care professional responsible for the patient’s care should review and update the POLST form, with the patient or his/her surrogate, as needed based on the patient’s medical condition and treatment preferences. At a minimum, the POLST should be reviewed in the following circumstances:

a. When the patient is transferred from one care setting or care level to another;

b. When there is a substantial change in the patient’s health status; and

c. When the patient’s primary care professional changes.

A patient with capacity, or his/her valid surrogate when the patient lacks capacity, may also initiate a revision of a POLST form at any time.

Revisions of POLST forms generally require voiding the current POLST form and writing/signing a new form, as well as giving the patient the updated form with instructions to destroy all older versions and putting the most current form in the patient’s medical record (and archiving the old POLST form).

2. Voiding a POLst Form. A patient with capacity, or his/her valid surrogate when the patient lacks capacity, can void the form and request alternative treatment at any time. A form is generally voided when “VOID” is written in large letters across the form, but the process varies by state, particularly if there is a state registry to be notified.

d. signatures

The POLST Paradigm Program requires health care professionals be trained to conduct shared decision-making discussions with patients and families so that POLST forms are completed properly. State law authorizes certain health care professionals to sign medical orders; the POLST form is signed by those health care professionals, who are accountable for the medical orders.

The POLST form may be signed by the patient with capacity or his/her valid surrogate when the patient lacks capacity, but such a signature is not required in all states. In Oregon, the patient or surrogate’s signature is only recommended; in New York, the patient or surrogate only attests that the conversation has taken place.

The NPPTF encourages all states seeking endorsement to require a patient or surrogate’s signature on the POLST form, but is it not a required form element for endorsement. Since traditional medical orders are not signed by patients or surrogates, NPPTF’s focus is on encouraging programs to design systems to ensure the conversation about patient’s treatment options and goals has taken place.



iii. POLst and adVanCE dirECtiVEs

The POLST form is not intended to replace an advance directive document or other medical orders. The two documents differ, as will be discussed below, but they ideally work together. In short, the POLST turns the patient’s wishes expressed in an advance directive into action as a medical order.

a. Key differences

While all competent adults—regardless of health status—should have an advance directive, not everyone should have a POLST. As discussed in section I., above, POLST is for a very specific patient population. The POLST form is a set of medical orders, similar to the do-not-resuscitate (allow natural death) order. POLST is not an advance directive. POLST does not substitute for naming a health care agent or durable power of attorney for health care.

For healthy patients, an advance directive is an appropriate tool for identifying a surrogate decision-maker and making future end-of-life care wishes known. Advance directives are generally completed when an individual is unaware of what disease or medical issue he or she may have in the future, so it only provides general guidance. Further, it is a legal document requiring interpretation, and, because of that, it does not give directions in the field during an emergency.

Conversely, the POLST is a medical order. POLST takes effect as soon as it is signed by the health care professional and gives orders to others professionals, including emergency service personnel, which can be acted on. It is only when a patient is diagnosed with a serious advance illness that a POLST form would be appropriate. For these patients, their current health status indicates the need for standing medical orders for emergent or future medical care, and they are able to make decisions about their care knowing their specific diagnosis and prognosis.

POLST orders are more easily located in an emergency. Further, having a single form for medical orders provides consistency that allows emergency service personnel to follow the medical orders in the field because they know where to look for specific information in an instant (this is also helped by the NPPTF encouraging all states to have all medical orders on the front page of the POLST form); this consistency then allows emergency service personnel to incorporate a procedure for using POLST in their scope of practice. Additionally, several states, including Oregon, West Virginia, Idaho, Utah, and New York, have registries for POLST forms, ensuring emergency personnel and health care professionals know the treatment wishes of their patients during an emergency.

B. Max’s story

While the POLST Paradigm Program supports the completion of advance directives, clinical experience and research demonstrate that these advance directives are not sufficient alone to assure that those who suffer from serious advanced illnesses will have their preferences for treatment honored unless a POLST form is also completed. Max’s wife, Suzanne, shared his story with POLST this year; his story exemplifies the differences between advance directives and POLST and explains why POLST is necessary. You may wish to watch the video here: http://www.youtube.com/watch?feature=player_embedded&v=mdPtHu0-KPU.

Max was born and raised in rural Oregon; he was a devoted father and doting grandfather, as well as a gifted athlete. He was a champion squash player, who loved to play golf, hunt, and fish. His active lifestyle was dealt a life-changing blow around the time of his 75th birthday when he received the sobering diagnosis of aortic stenosis. Open-heart surgery was his only treatment option, and the alternative was an increasingly frail state of health as the valve slowly closed. He thought deeply about his choices, especially given his other health problems. And the conclusion he reached was crystal clear: he did not want the surgery.

Although he loved technology and had embraced it in his life’s work, he was, according to his wife Suzanne, “a man of nature.” He was adamant that he wanted his life, and death, to unfold

http://www.youtube.com/watch?feature=player_embedded&v=mdPtHu0-KPU

http://www.youtube.com/watch?feature=player_embedded&v=mdPtHu0-KPU



naturally—without tubes or machines. So, with great care, he completed an advance directive to document his end-of-life wishes, which he then shared with his family. He took comfort in the fact that his wish for a peaceful, natural death was clearly documented in an advance directive.

Suzanne and his family knew what he wanted and were comfortable with his decision. They knew he believed in the quality of life and had thought about it carefully based on who he was and how he wanted to live out his days.

Sadly, this careful planning was not enough. Five years later, when Max collapsed from heart failure while playing golf on Mother’s Day, his strongly held wishes could not be honored. His advance directive, completed with such care and intention, did not serve as the medical orders needed to direct his care in this emergency situation. Max had just hit a good drive off the first fairway when his heart gave out. An ambulance was called to the scene and, when Suzanne arrived about 15 minutes later, she was deeply disturbed by what awaited her.

Emergency medical personnel were clustered around her lifeless husband, doggedly performing CPR in an attempt to revive him. And she realized with horror that this was exactly what Max had most wanted to avoid. She begged them to stop, telling them that she had his advance directive in her purse. But they kept going. And she looked around, seeing all these people coming to see what was going on. And she felt even worse, knowing that Max—who was a very private man—would not have wanted this at all. He would have hated it.

In a medical emergency, EMTs have no choice but to do everything possible to save a life unless they have medical orders to the contrary. The POLST form provides the medical orders necessary to turn patients’ wishes about the treatment they do and do not want into action. The advance directive is not even reviewed until Max is at the hospital.

Max’s death would have been very different if the EMTs responding to his collapse had had a POLST form to direct the course of his care. He would have been allowed the dignified natural death he deeply desired. And his family, in its grief, would have had the comfort of knowing that his wishes had been both honored and respected.

C. How POLst and advance directives work together

Patients with decision-making capacity can modify their POLST at any time to reflect changing circumstances—for example, when treatment has been initiated and more medical information becomes available regarding diagnosis, prognosis, or potential outcomes, the patient’s goals and preferences may change. If the patient becomes incapacitated, the advance directive plays an important role in developing goals for care consistent with the patient in his/her new state of health. The surrogate identified by the patient in his/her advance directive would participate in either initiating a POLST or updating POLST orders in a manner consistent with the patient’s preferences as the patient’s health status changes.

iV. wHat is tHE natiOnaL POLst ParadiGM PrOGraM?

The National POLST Paradigm Program’s headquarters are at Oregon Health & Science University in Portland, Oregon. While it has a small staff, including its Executive Director, the National POLST Paradigm Task Force (NPPTF) is responsible for governing the strategic decisions for the National POLST Paradigm Program.

a. Key POLst Paradigm Public Policy Principles

There are five key principles of the National POLST Paradigm Program.

1. Health care professionals should encourage and offer assistance to all adults to designate a decision-maker and document their care goals and preferences.



2. Health care professionals should have a process to convert treatment goals and preferences of persons with life-limiting illness into medical orders (e.g., the POLST Paradigm Initiative) to ensure that the information is transferable and applicable across all care settings.

3. In the absence of a validly executed advance directive, any authentic expression of an individual’s goals, values, or wishes with respect to health care shall be honored.

4. Universal implementation of electronic medical records and internet-based personal health records shall prominently include and integrate timely information about patient proxy designations, care goals and preferences, and medical orders for life-sustaining treatment.

5. The federal government should support research, education, and development of best practices relating to the quality and continuity of care planning and care implementation for persons with life-limiting illnesses across care settings.

B. the national POLst Paradigm task Force (nPPtF)

The NPPTF was convened in September 2004 to establish quality standards for POLST forms and programs and to assist states to develop such programs. The NPPTF includes one representative chosen by each state endorsed by the NPPTF.

C. the Goals of the nPPtF

In the early 1990s the POLST Paradigm Program was developed to improve patient care and reduce medical errors by creating a system that identifies patients’ wishes regarding medical treatment and communicates and respects them by creating portable medical orders. The system focuses on a growing segment of the United States population, those seriously ill patients with advanced, chronic progressive illness. While the NPPTF supports the completion of advance directives, clinical experience and research demonstrate that these advance directives are not sufficient alone to assure that those who suffer from serious, advanced, progressive chronic illnesses will have their preferences for treatment honored unless a POLST form is also completed.

A key component of the system is thoughtful, facilitated advance care planning conversations between health care professionals and patients and those close to them to determine what treatments patients do and do not want based on their personal beliefs and current state of health. In these conversations patients are informed of their treatment options and, if they wish, their health care professional completes a POLST form based on the patient’s expressed treatment preferences.

A number of states have implemented the POLST Paradigm, and most others have expressed interest in doing so. POLST research shows that POLST use results in treatment consistent with patients’ wishes more than 90% of the time, significantly reduces unwanted hospitalizations, and decreases medical errors.

The NPPTF is continuing to conduct research and develop quality measures to further assess the impact of the POLST Paradigm Program on patient outcomes. The goal of the NPPTF is to assure that the wishes of those with advanced illness and frailty are elicited, recorded, and honored.

d. activities of the nPPtF

Overall, the NPPTF is dedicated to overseeing the success of the POLST Paradigm in every state and to establish clear tenets of the POLST Paradigm Program. Through its various committees, the NPPTF mentors developing states, reviews and approves (or denies) endorsement and mature status applications, and advises on communication, research, and registry efforts.



V. statE POLst PrOGraMs

a. How does POLst develop?

POLST has developed in states primarily through a grassroots approach, such as in Oregon, or through legislation or regulation. Current legislation in the states can be located the in legislative guide created by the ABA Commission on Law & Aging (http://www.polst.org/wp-content/uploads/2013/05/Leg-Chart-POLST_3-21-13-AG.pdf). Development of the first twelve states adopting can be found in the AARP Public Policy Institute Research Report entitled “Improving Advanced Illness Care: The Evolution of State POLST Programs” (http://assets.aarp.org/rgcenter/ppi/cons-prot/POLST-Report-04-11.pdf).

B. Current status of the POLst Paradigm Program

The NPPTF categorizes states based on their development status; the National POLST Map (http://www.polst.org/programs-in-your-state/) shows the current status of each state.

1. states with Contacts. When states are exploring the development of a regional or statewide POLST Paradigm program, they can formally connect with the NPPTF. This level is for states not yet ready to complete the Developing POLST Paradigm documentation but who would like to participate in the National POLST Paradigm Program (e.g., receive emails from the national office, attend various education sessions put on by the National Office or the NPPTF, etc.). Oklahoma and Arkansas are currently in this category.

2. developing states. Programs are recognized by the NPPTF as “developing” when they have both: (a) submitted the Developing State Status Application form and (b) presented the state’s POLST form and progress to the NPPTF’s Developing State Assistance Committee. Developing POLST Paradigm Programs may be at various stages of development, ranging from the initial design of a POLST form to active usage of POLST forms, but are working towards the goal of implementing the POLST program statewide. In general, programs at this step are starting to contemplate addressing all Seven Core Elements of Sustainability. There are currently 22 Developing States: Arizona, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, South Carolina, Virginia, Vermont and Wyoming).

3. Endorsed states. The NPPTF will endorse state POLST programs when they have developed and implemented a POLST program and form meeting the NPPTF standards. Endorsed programs are statewide or regional POLST programs that have become standard components of advance care planning in their location. These programs have addressed legal and regulatory issues associated with POLST and have developed strategies for ongoing implementation and quality assurance. There are currently 14 endorsed states: California, Colorado, Georgia, Hawaii, Idaho, Louisiana, Montana, New York, North Carolina, Pennsylvania, Tennessee, Texas, Utah, Washington, and Wisconsin, however, Wisconsin is only regionally endorsed. The Endorsed Application is available here: http://www.polst.org/wp-content/uploads/2013/06/2013.06.03-Endorsed-State-Request-Application1.pdf.

4. Mature states. Mature status is the highest level of endorsement by the NPPTF and is reserved solely for states with statewide POLST programs that, among other requirements, are the standard preferred method of advance care planning for persons with advanced illness or frailty. Mature POLST programs are used by 50% or more of hospitals, nursing homes, and hospices in each region (as defined by established criteria such as EMS, Department of Health, or the Dartmouth Atlas) of the state. These programs are actively gathering data for quality assurance programs and have considered centralized POLST databases. There are two states with Mature Program status: Oregon and West Virginia. The Mature Application is available here: http://www.polst.org/wp-content/uploads/2012/06/2013.03.27-Mature-state-program-application.pdf.

http://www.polst.org/wp-content/uploads/2013/05/Leg-Chart-POLST_3-21-13-AG.pdf

http://www.polst.org/wp-content/uploads/2013/05/Leg-Chart-POLST_3-21-13-AG.pdf

http://assets.aarp.org/rgcenter/ppi/cons-prot/POLST-Report-04-11.pdf

http://assets.aarp.org/rgcenter/ppi/cons-prot/POLST-Report-04-11.pdf

http://www.polst.org/programs-in-your-state/

http://www.polst.org/wp-content/uploads/2013/06/2013.06.03-Endorsed-State-Request-Application1.pdf

http://www.polst.org/wp-content/uploads/2013/06/2013.06.03-Endorsed-State-Request-Application1.pdf

http://www.polst.org/wp-content/uploads/2012/06/2013.03.27-Mature-state-program-application.pdf

http://www.polst.org/wp-content/uploads/2012/06/2013.03.27-Mature-state-program-application.pdf



5. states with Programs that do not Conform to POLst requirements. There are some states that have developed POLST-like programs that, either from how the program was implemented, the development of the form, or for legislative reasons, will not be endorsed by NPPTF in their current form. There are four currently identified.

a. Minnesota. Currently its form expressly states 911 should not be called when a patient’s POLST orders are for “Comfort Measures Only.” This violates the tenet of the POLST Paradigm Program that comfort measures are always provided to the patient; Minnesota’s form overlooks instances where a patient cannot be provided comfort care in his/her current location. For example, if the patient falls and breaks a bone at home, it is unlikely his/her comfort can be adequately addressed in that location and it is likely the patient must go to the hospital for treatment to control his/her pain.

b. Maryland. Legislation going into effect this year requires POLST forms be completed for all patients except those in three limited categories. Maryland’s program violates the POLST Paradigm’s tenet that a POLST is always voluntary.

c. delaware. This program requires a patient be diagnosed as terminal before a POLST can be completed. Focus groups have shown that patients find the term “terminal” offensive. This program is too narrow in limiting the patient population that can access POLST; the target POLST population includes those patients whose health care professional would not be surprised if the patient died within the next year.

d. Massachusetts. The current form does not include the Section B discussed in section II.A., above, but instead has a variety of questions. This lack of structure in the form causes confusion and lacks clarity.

Since this is a relatively new distinction, the NPPTF is working to evaluate other states currently in the “Developing State” category in light of recent legislation or form development. It is important for the NPPTF to clarify this category as the principles are important to the program; only mature and endorsed states should be used as examples of the POLST Paradigm Program.

We currently do not have contact with five states: Alabama, Alaska, Mississippi, Nebraska, and South Dakota.

Vi. wHat arE tHE BEnEFits OF POLst?

POLST improves the quality of patient care and reduces medical errors by creating a system that identifies patients’ wishes regarding medical treatment and communicates and respects them by creating portable medical orders.

A 2010 study by Susan Hickman in the Journal of American Geriatric Society showed that there was a reduction by 67% of medical interventions unwanted by the patients (mainly emergency room visits and hospitalizations) for patients with POLST forms with orders for comfort measures only by compared with POLST orders for full treatment and 59% less than traditional do-not-resuscitate orders. In short, POLST orders for comfort measures only reduce hospitalization, readmissions, and emergency room visits, as well as reducing care patients do not want to receive.3

Vii. wHat is nEEdEd FOr POLst tO BE suCCEssFuL?

Although it is a state effort, a uniform standard for electronic medical records should be a requirement so that all EMR systems are designed in ways that POLST orders, as well as advance directives, may be found quickly so they are easily accessible during an emergency. EMR systems are complicated, and while a document may be “in the record,” it may not be easily located. For documents

3 Hickman, Susan E. et al, (2010). “A Comparison of Methods to Communicate Treatment Preferences in Nursing Facilities: Traditional Practices Versus the Physician Orders for Life-Sustaining Treatment Program.” Journal of the American Geriatric Society 58:1241–1248.



that may be urgently needed—in order to ensure a patient’s autonomy is respected—the NPPTF strongly recommends POLST forms be in a unique field/tab that can be accessed instantly—ideally in a single click.

Viii. OtHEr COnsidEratiOns

POLST orders honor patients following their religious values. For example, the POLST form allows Catholics to make decisions consistent with the United States Conference of Catholic Bishops Ethical and Religious Directives for Catholic Health Care Services, 5th ed. (2009), and ensures that those decisions will be honored in an emergency and across care transitions.

In general, the POLST form enables physicians to order treatments patients want and to direct that treatment that patients would not want, including those a patient and his/her health care professional would consider “extraordinary” and excessively burdensome. Further, the POLST form requires that “ordinary” measures to improve the patient’s comfort and food and fluid by mouth, as tolerated, are always provided. The POLST form is actionable and prevents initiation of care the patient does not want and that the patient considers disproportionately burdensome extraordinary treatment.

POLST orders record patient wishes to have or limit treatment, but it is never the intent for the orders to be written with the goal of hastening death; POLST recognizes that allowing natural death to occur is not the same as intentionally shortening life. Some patients near the end of their lives wish to stop treatments they find burdensome and have the primary focus of the care on their comfort. For these patients, POLST orders for comfort measures only document their wish to step aside from medical treatments and allow nature to take its course; comfort measures only is sometimes referred to as “allow natural death.”

In Oregon, all of the hospitals, including the Catholic health systems, participate in the POLST program and use POLST orders to record the wishes of some of those with advanced serious illness under their care. For those patients desiring comfort measures only, the POLST form documents orders to refuse treatments the patient finds overly burdensome in the advanced stage of their illness.

This is in stark contrast to physician-assisted suicide. Not a single Catholic hospital participates in the Oregon Death with Dignity Act, which is the deliberate hastening of death. Though this act and POLST both came to fruition first in Oregon, there is no relationship between them. The POLST Program is completely separate from “death with dignity,” and POLST forms do not allow orders to be written for medication with the goal of hastening death.

iX. OtHEr rEsOurCEs

The National POLST Paradigm website (www.polst.org) has additional information, including a variety of videos, POLST forms and educational materials, FAQs, and resources. It has citations of the research done about or related to POLST and provides materials for states participating in the POLST Paradigm Program, such as the POLST Quality and Research Toolkit (PQRsT). This toolkit was designed to facilitate the study and improvement of POLST programs through data collection and analysis. The PQRsT consists of 30 instruments that have been created to study POLST for research or quality improvement projects, along with related research materials.

http://www.polst.org





diFFErEnCEs BEtwEEn POLst and adVanCE dirECtiVEs in OrEGOn

POLst Form advance directiveIs a medical order. Is a legal document.Emergency personnel must follow the orders in providing, or not providing, treatment to the patient.

Emergency personnel cannot follow but must do everything possible to attempt to save the patient’s life. Advance directives are later reviewed by hospital staff to determine what the patient would or would not have wanted.

Communicates information about specific medical treatments the patient does or does not want. These decisions are made based on the patient’s current state of health (e.g., wishes documented in POLST are what the patient would want that night if something happened).

Communicates general wishes about medical treatments the patient does or does not want. These decisions are made for general purposes about potential future medical conditions.

Does not appoint a health care surrogate or representative.

Appoints a health care surrogate or representative.

Easy to locate (as medical order is in medical record). In Oregon POLST Registry unless patient opts out.

EMS are instructed to look for physical document when responding to emergency. Registry access available 24/7.

Generally not available when needed. Patients have responsibility to give a copy to their health care professional to put into their medical record. Patients also need to tell surrogate (and family members) where document is so that it can be found in an emergency.

For those diagnosed with a serious advanced illness or frailty—at any age.

Recommended for all competent adults.

Signed by health care professional (physician, nurse practitioner, physician assistant).

Signed by individual, his/her health care surrogate or representative, and two witnesses.

Completion of POLST requires health care professional.

Completion of an advance directive does not require a health care professional.

Language of POLST is easily interpreted and followed by health care professionals.

Language potentially vague. Likely needs interpretation and discussion by health care professional and patient’s surrogate in order to determine what the patient wanted or did not want.





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AMY VANDENBROUCKE, JDEXECUTIVE DIRECTOR, NATIONAL POLST PARADIGM

POLST and Advance Care

Planning

GOALSUnderstand POLST Value of POLST as an ACP documentHow POLST complements Advance DirectivesCommon Questions



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WHAT IS POLST?Physicians Orders for Life-

Sustaining TreatmentConversationShared decision-makingPatient goals → medical orders

Easily located Portable across care settings patient’s current treatment preferences



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WHY POLST?Patient wishes not being honored consistently

despite the availability of advance directives.

Advance Directives ≠ medical orders; EMTs cannot follow in field

POLST = medical orders that EMTs could follow in the field

APPROPRIATE PATIENTPOPULATION

POLST is appropriate for patients:Diagnosed with serious illness or frailtyWith chronic progressive disease nearing the

EOL.Surprise question- 1 year or less to livePOLST is not appropriate for:Patients with stable medical or functionally

disabling problems who have many years of life expectancy

Healthy individuals



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Developing Programs

National POLST Paradigm Programs

Endorsed Programs

No Program (Contacts)

*As of June 2013

Mature Programs

Regionally Endorsed Program

www.polst.org

Programs That Do Not Conform to POLST Requirements

HOW DOES POLST WORK?Conversation with patient’s health care professional (HCP) Diagnosis Prognosis Available treatment

optionsBenefits and

burdens of each Patient goals of

care, values



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HOW DOES POLST WORK?Post- Conversation: HCP completes & signs POLST. Original POLST is given to patient. HCP puts a copy in patient’s medical record. HCP sends copy to Registry unless patient opted out.

HOW DOES POLST WORK?

Patient has an emergency in transition to care setting or at home



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HOW DOES POLST WORK?

EMS called– they are trained to look for a POLST form when: They suspect or are told a patient has a POLST form Chronic, progressive illness patients Frail/elderly patients

May call Registry for any above and if a POLST is produced on the scene but there is a question

POLST is followed

MAX’S STORY



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WHAT HAPPENS WITHOUT APOLST?

EMS called– required to provide all emergency measures necessary to attempt to save the life (aka “full treatment”)

POLST AND ADVANCEDIRECTIVES

Voluntary Advance Care Planning DocumentsDocument patient wishes about medical

treatments in futureCan be changed and updated

Should be periodically reviewedPatient-centered Document patients’ morals and values



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POLST AND ADVANCEDIRECTIVES

POLST more specific conversation Discussion in context of specific medical

diagnosis and prognosis Details about what CPR, ICU entails

Documentation POLST = Medical order for specific

care AD = general

POLST does not appoint an HCR

POLST -ADVANCE DIRECTIVE

POLSTPhysician Order for Life-Sustaining Treatment

Advance DirectiveOregon’s Legal Form

• For those with advance illness or frailty - at any age

• For all adults regardless of their health status

• Specific medical orders for current treatment. What patient would want today.

• Health Care Instructions for future or current life-sustaining treatments

• Appoints a Health Care Representative (HCR)

• Orders signed by Health Care Professional. Encourage signature by patient or the patient’s HCR

• Signed by the patient and their HCR

Adapted from California POLST Education Program© January 2010 Coalition for Compassionate Care of California



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Complete an Advance Directive

Complete a POLST Form

Treatment Wishes Honored

Diagnosed with Serious Illness or Frailty(at any age)

Update Advance Directive Periodically

HOW AN ADVANCE DIRECTIVE ANDPOLST FORM WORK TOGETHER

All Adults

Update POLST as Health Status Changes

Adapted with permission from California POLST Education Program © January 2010 Coalition for Compassionate Care of California

CHANGING HEALTH STATUS

Full Treatment



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Limited Treatment or CMO


Full Treatment



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BENEFITS OF POLST

Reduction by 67% of medical interventions unwanted by patients

(mainly Emergency Department and hospitalizations when patient wanted

Comfort Measures Only)

COMMON QUESTIONS

SignaturesSpecial PopulationsRevising POLST FormsRevoking/Voiding POLST FormsDWD/Assisted Suicide



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SIGNATURES

HCP’s signature and date is required Physician, Nurse Practitioner or Physician Assistant

Patient/surrogate signature: is not required but is strongly recommended Not informed consent- but acknowledgement of

shared decision making

HCP needs to acknowledge who had conversation with (Section D: Documentation of Discussion)

SPECIAL POPULATIONS AND POLST

May be used with pediatric populations.Patients with significant disabilities. HCP must

determine on case by case basis if POLST is appropriate: Does the person have a disease process (not just their stable

disability) that is terminal? Is the person experiencing a significant decline in health (such

as frequent aspiration pneumonias)? Is the person in a palliative care or hospice program? Has this person's level of functioning become severely impaired

as a result of a deteriorating health condition when intervention will not significantly impact the process of decline?



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REVISING OR VOIDINGA POLST FORM

Key tenet of POLST Paradigm that POLST be easily modified or revoked.

POLST should be reviewed periodically

MISCELLANEOUS

Completion of form should always be voluntary. Although may have policy to always offer a POLST to

patients within appropriate populationComfort Measures are always providedFood and nutrition is always offered by mouth if

feasible.



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POLST NOT ASSOCIATED WITHDEATH WITH DIGNITY LAW

POLST developed independently of DWDNever the intent for POLST orders to be written

with goal of hastening deathPOLST recognizes that allowing natural death to

occur is not the same as intentionally shortening life

POLST IN OREGON

POLST – since mid-1990s not created by statute Administrative rules support Oregon POLST Task Force

Oversees & conducts education for HCPs and Patientsreviews POLST and ePOLST forms

POLST Registry - 2009 created by statute supported by DHS and the POLST Registry

Advisory Committee (PRAC) Registry staff oversees education for EMS



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POLST IN OREGON

50%+ of hospitals, nursing homes and hospices use POLST in each region (defined by Dartmouth Atlas) in Oregon.Actively gathering data for QI/QA

programsPOLST Registry

We’re Mature!

OREGON POLST REGULATIONS

OAR 847-25-0030(6): EMT Scope of Practice

OAR 847-010-0110: Physicians & PAs to honor life-sustaining treatment orders

Other regulations: OAR 411-066-0020(2)(b)(M): Concerning Registration

and Certification Standards for Adult Day Services Programs

OAR 411-045-0040(4)(b)(M) - Concerning Program of All-Inclusive Care for the Elderly (PACE)

OAR 411-050-0444(7)((a)(E)(v) and -0447(2)(c) and -0447(6)(c)(A)) - Concerning Licensure of Adult Foster Homes

http://www.polst.org

http://www.orpolst.org



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THE OREGON POLST REGISTRY

Secure Database of Patient POLST Forms

Provides EMS and other HCPs immediate access to a POLST form

24 hour access (helps EMS, EDs and ICUs)

ORS 127.663 www.orpolstregistry.org

FEDERAL LAWS- POLST

Personalize Your Care Act (2013) March 14, 2013 Rep. Blumenauer

Advance Care Planning Act of 2013 August 1, 2013 Senators Warner (VA) and Isakson (GA)



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RESOURCES

www.polst.org – National Site In-depth information about POLST Paradigm Legal resources and research citations

www.orpolst.org – Oregon Site Information about Oregon’s POLST Program links to Registry Site

Oregon Guidance Available: POLST Use for Patients with Significant Physical Disabilities,

Developmental Disabilities and/or Significant Mental Health Condition who are Now Near the End of Life

Facing Serious Illness: Make Your Wishes Known to Your Health Care Professional (Patient Guide)

Guidance for Oregon’s Health Care Professionals

TAKE-AWAYS

POLST = beneficial ACP document

Only for certain patient populations

Advance directives → medical orders



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Questions?





Chapter 6

Legislative updateMichael a. schMidt

Schmidt & Yee PCAloha, Oregon

Contents

I. House Bill 2570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–1

II. Senate Bill 592 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–1

III. House Bill 2205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–1

IV. House Bill 3129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–2

V. Other Bills of Possible Interest to Elder Law Attorneys . . . . . . . . . . . . . . . . . . . . . . 6–2A. House Bill 3389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–2B. Senate Bill 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–2C. House Bill 2046 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–2D. Senate Bill 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–2E. House Bill 3482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–3F. House Bill 2639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–3

AppendixesA. HB 2570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–5B. Legislative Wrap-Up. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–9C. Amendments to the Oregon Uniform Trust Code Work Group Report . . . . . . . . 6–15

Chapter 6—Legislative Update




i. HOusE BiLL 2570

House Bill 2570 is a substantial revision to the attorney fee provisions for protective proceedings. It was sponsored by the Elder Law Section because of concerns over whether ORCP 68 procedures applied to attorney fee requests under ORS chapter 125 and the effect of the Court of Appeals decision in Derkatsch v. Thorp, et al., 248 Or App 185(273 P3rd 204 2012). The decision in Derkatsch held that attorney fees for the protected person could not be approved for services performed prior to the court’s decision that the respondent was in fact a protected person.

Several persons played key roles in assisting the section’s Legislative Committee, including Matthew Whitman and Steven Heinrich. However, Steven Owen deserves much of the credit for writing the bill that was passed.

ORS 125.095 has been amended to change “protected person” to “a person subject to a protective proceeding” in response to the Derkatsch decision so that it is clear that attorney fees incurred representing the respondent in a protective proceeding can be awarded by the court.

Prior court approval is now required for the payment of attorney fees for representation of the protected person, except for services incurred prior to the filing of the protective proceeding petition and unrelated to the protective proceeding. There is also an exception for attorney mediators in protective proceedings.

A pleading alleging a basis for the payment of attorney fees is no longer required.

The statute specifically provides that ORCP 68 does not apply to the approval in payment of attorney fees in a protective proceeding.

House Bill 2570 adds a new section, written primarily by Matthew Whitman, which gives factors for the court to follow in determining first whether to award attorney fees in a protective proceeding and, if fees are awarded, factors to consider when determining the amount of fees to be awarded. Among the factors to be considered in determining whether to award attorney fees are: (1) the benefit to the person subject to the protective proceeding by the party’s actions in the proceeding; and (2) the party’s self interest in the outcome of the proceeding. Among the factors the court is to consider in determining the amount of attorney fees to be awarded is the fee amount requested relative to the estate of the protected person.

Effective January 1, 2014.

ii. sEnatE BiLL 592

Senate Bill 592 amends the Uniform Trust Code. Attached as Appendix B is Professor Susan N. Gary’s Work Group Report to the Oregon Law Commission.

Effective June 26, 2013.

iii. HOusE BiLL 2205

House Bill 2205 amends ORS 124.050(9) to make attorneys obligated to report elder abuse. There is an exception for information communicated to the attorney in the course of representing a client the disclosure of which would be detrimental to the client. ORS 124.060. The addition to ORS 124.060 containing the exception reads: “An attorney is not required to make a report under this section by reason of information communicated to the attorney in the course of representing a client if disclosure of the information would be detrimental to the client.”

The OSB is to establish minimum training requirements for all active bar members.

http://www.leg.state.or.us/13reg/measpdf/sb0500.dir/sb0592.en.pdf

http://www.leg.state.or.us/13reg/measpdf/hb2200.dir/hb2205.en.pdf



The Oregon Elder Abuse Work Group was increased to 22 members to include a lawyer whose practice is concentrated in elder law. The Board of Governors has appointed Cara Johnson of Eugene to this position. The work group is to make recommendations for the definition of elder abuse.


iV. HOusE BiLL 3129

House Bill 3129 requires professional fiduciaries, or the responsible person for the professional fiduciary, to be certified by the Center for Guardian Certification as a National Certified Guardian or National Master Guardian before the professional fiduciary can be appointed to serve as a guardian or conservator. It amends ORS125.240, the statute on professional fiduciary disclosures.


V. OtHEr BiLLs OF POssiBLE intErEst tO ELdEr Law attOrnEYs

Attached as Appendix C is Bob Joondeph’s Oregon Legislative Wrap-Up he wrote on behalf of Disability Rights of Oregon.

a. House Bill 3389

House Bill 3389 has changed the definition of “residential trust deed” to “a trust deed on property on which are situated four or fewer residential units, one of which the grantor, the grantor’s spouse, or the grantor’s minor or dependent child occupies as a principal residence at the time the trust deed is recorded or in the case of a purchased money loan, one of which is intended to be the principal residence of the grantor, the grantor’s spouse, or the grantor’s minor or dependent child after the trust deed is recorded.”

Please note that this is a significant change as far as a deficiency judgment is concerned. Consider a house purchased originally as a rental into which the owners later move as their primary residence and then default on the mortgage. Would the owners be subject to a deficiency judgment even though what was once a rental house had become their primary residence? At the time the trust deed was granted, the property was not the residence or intended residence of the borrower.

Effective July 19, 2013.

B. senate Bill 396

Senate Bill 396 exempts from execution Medical Savings or Health Savings Accounts authorized under Section 220 or 223 of the Internal Revenue Code.

Effective July 1, 2013.

C. House Bill 2046

House Bill 2046 puts Department of Veterans’ Affairs claims for fees and expenses for administration of estates and conservatorships into the priority statute for payment of estate claims. The claim’s priority is after child support arrearage but ahead of Department of Human Services claims.


d. senate Bill 91

Senate Bill 91 amends various portions of the Landlord Tenant Act. One of the significant changes allows a landlord to require a tenant to obtain and maintain renter’s liability insurance unless the renter’s household income is equal to or less than 50% of the area median income or the dwelling unit is subsidized with public funds.









E. House Bill 3482

House Bill 3482 makes some changes to the Landlord Tenant Act for manufactured homes. Park landlords are now responsible for maintaining large hazard trees unless the tree was planted by the tenant. It also changes the due date and late payment date for utility charges to be reimbursed by the tenant to the landlord.

Effective June 18, 2013.

F. House Bill 2639

House Bill 2639 generally prohibits residential landlords from refusing to rent to tenants with federal Section 8 rental assistance vouchers.

Effective __________.







aPPEndiX a—HB 2570

77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

Enrolled

House Bill 2570Introduced and printed pursuant to House Rule 12.00. Presession filed (at the request of House In-

terim Committee on Judiciary for Oregon State Bar Elder Law Section)

CHAPTER .................................................

AN ACT

Relating to compensation in protective proceedings; creating new provisions; and amending ORS

125.095.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 125.095 is amended to read:

125.095. (1) Funds of [the protected person] a person subject to a protective proceeding may

be used to pay reasonable [compensation] fees, costs and disbursements to any visitor, attorney,

physician, fiduciary or temporary fiduciary for services [rendered in] related to the protective pro-

ceeding or for services [rendered] provided on behalf of [the fiduciary or protected person] a

fiduciary, respondent, petitioner, cross-petitioner, objector or protected person.

(2) Prior court approval is required before the payment of [the] fees from the funds of a person

subject to a protective proceeding when the payment is to:

(a) [of any visitor or] A physician if the fees are incurred for services relating to proceedings

arising out of the filing of an objection to a petition, cross-petition or motion.

[(3)] (b) An appointed fiduciary [prior court approval is required before payment of compensation

to a fiduciary or to the attorneys for a fiduciary], except that prior court approval is not required

before payment of [compensation] fees to a conservator if the conservator is a trust company that

has complied with ORS 709.030, or if the conservator is the Department of Veterans’ Affairs.

(c) Any attorney who has provided services relating to a protective proceeding, including

services provided in preparation or anticipation of the filing of a petition in a protective

proceeding.

(3) Subject to ORS 125.495 to 125.520, prior court approval is not required before:

(a) Payment of attorney fees incurred prior to the filing of a petition in a protective

proceeding for services unrelated to the protective proceeding; or

(b) Payment for services provided by an attorney who is hired as a mediator for medi-

ation services related to a protective proceeding.

(4) A pleading that alleges a basis for payment of attorney fees is not required before

payment of attorney fees is approved or made under this section.

(5) ORCP 68 does not apply to requests for approval and payment of attorney fees made

under this chapter.

SECTION 2. Section 3 of this 2013 Act is added to and made a part of ORS chapter 125.

SECTION 3. (1) As used in this section, “party” means a person represented by an at-

torney when a request for court approval and payment of attorney fees has been made re-

lating to a protective proceeding under ORS 125.095.




(2) A court shall consider the following factors in determining whether to award attorney

fees under ORS 125.095:

(a) The benefit to the person subject to the protective proceeding by the party’s actions

in the proceeding.

(b) The objective reasonableness of the position asserted by the party.

(c) The party’s self-interest in the outcome of the proceeding.

(d) Whether the relief sought by the party was granted in whole or in part, subject to

the respondent’s right to contest the proceeding.

(e) The conduct of the party in the transactions or occurrences that gave rise to the need

for a protective proceeding, including any conduct of the party that was reckless, willful,

malicious, in bad faith or illegal.

(f) The extent to which an award of attorney fees in the proceeding would deter others

from asserting good faith positions in similar proceedings.

(g) The extent to which an award of attorney fees in the proceeding would deter others

from asserting meritless positions in similar proceedings.

(h) The objective reasonableness of the party and the diligence of the party and the at-

torney during the proceeding.

(i) The objective reasonableness of the party and the diligence of the party in pursuing

settlement of the dispute.

(j) Any other factor the court may consider appropriate under the circumstances of the

proceeding.

(3) A court shall consider the factors specified in subsection (2) of this section in deter-

mining the amount of an award of attorney fees under ORS 125.095. In addition, the court

shall consider the following factors in determining the amount of an award of attorney fees:

(a) The time and labor required in the proceeding, the novelty and difficulty of the issues

involved and the skill needed to provide the legal services.

(b) The likelihood that the acceptance of the employment on behalf of the party by the

attorney would preclude the attorney from other employment, when the likelihood should

be apparent or was made apparent to the party.

(c) The fee customarily charged by an attorney in the locality for similar legal services.

(d) The time limitations imposed by the party or the circumstances of the proceeding.

(e) The experience, reputation and ability of the attorney providing the legal services.

(f) The amount of the attorney fees requested relative to the estate of the person subject

to the protective proceeding, whether or not the estate of the person subject to the protec-

tive proceeding is subject to the direct or indirect control of a conservator.

(4) No single factor listed in subsections (2) and (3) of this section shall be controlling in

the court’s determination regarding attorney fees under this section.

(5) In an appeal from the award of or denial of a request for attorney fees under ORS

125.095 and this section, the court reviewing the award may not modify the decision of the

court below in making or denying an award, or the decision of that court as to the amount

of the award, except upon a finding of an abuse of discretion.




Passed by House March 6, 2013

..................................................................................

Ramona J. Line, Chief Clerk of House

..................................................................................

Tina Kotek, Speaker of House

Passed by Senate May 2, 2013

..................................................................................

Peter Courtney, President of Senate

Received by Governor:

........................M.,........................................................., 2013

Approved:

........................M.,........................................................., 2013

..................................................................................

John Kitzhaber, Governor

Filed in Office of Secretary of State:

........................M.,........................................................., 2013

..................................................................................

Kate Brown, Secretary of State






aPPEndiX B—LEGisLatiVE wraP-uP1

Here is a summary of bills of interest to the disability community that passed the 2013 legislature plus information about the 2013–2015 budget taken from Legislative Fiscal Office summaries. See you next session!

Mental Health

HB 2020

Requires Oregon Health Authority (OHA) to convene a committee to advise the OHA in adopting rules governing authority’s onsite quality assessments of organizations that provide mental health or chemical dependency treatment. Governor signed. Effective 6/13/13.

HB 2385

Removes, from health insurance coverage requirements for chemical dependency and mental or nervous conditions, exemption for treatment resulting from conviction of driving while under influence of intoxicants. Permits insured to utilize health benefit plan coverage as third-party payer of costs of treatment. Governor signed. Effective 6/13/13.

HB 2594

Creates new outpatient civil commitment for individuals with mental illness. Passed House and Senate.

HB 2737

Requires Oregon Health Authority to adopt standards and procedures to certify specified mental health providers to qualify for insurance reimbursement. Authorizes OHA to adopt fee for such certification and for applying for such certification. Governor signed Effective 7/1/13.

HB 2836

Creates fitness to proceed procedures for juvenile court delinquency proceedings. Passed House and Senate.

sB 281

Adds PTSD to conditions that are appropriate for medical marijuana. Governor signed. Effective 1/1/14.

sB 421

Establishes a new civil commitment for “extremely dangerous” persons. Passed House and Senate.

sB 426

Modernizes language in civil commitment laws. Governor signed. Effective January 1, 2014.

sB 491

Permits minor 14 years of age or older to obtain, without parental knowledge or consent, outpatient diagnosis or treatment of mental or emotional disorder or chemical dependency from professional counselors and marriage and family therapists. Governor signed. Effective 1/1/14.

sB 626

Expands duties of Long Term Ombudsman to mental health and developmental disabilities community facilities. Passed House and Senate.

1 Prepared by Robert C. Joondeph, Disability Rights Oregon, Portland, July 26, 2013. Reprinted with permission of author.



intellectual/developmental disabilities

sB 22

Update of state laws regarding services for individuals with intellectual and developmental disabilities. Governor signed. Effective 4/11/ 13.

sB 365

Requires that health insurance policies cover applied behavior analysis for treatment of autism. Passed House and Senate.

sB 559

Requires Department of Human Services to provide adults with developmental disabilities needing comprehensive services at least three options for placement prior to initial placement or transfer, subject to exceptions. Gives adult right to choose placement option. Governor signed. Effective 7/1/13.

sB 640

Requires Department of Human Services to assess support needs of each adult with developmental disability who is receiving comprehensive services and pay service rate to service provider that is sufficient to meet assessed support needs. Requires notice to adult and other specified persons of detailed accounting of service rate if rate changes. Requires department to conduct assessment no later than 90 days after request by specified persons based on change to support needs. Governor signed. Effective 7/1/13.

aging and People with disabilities

HB 2205

Adds to list of mandatory reporters for abuse of persons over 65. Governor signed. Effective 6/11/13.

sB 21

Requires Department of Human Services to develop plan for improving long-term care system in Oregon. Specifies required elements of plan. Requires department to convene committee to assist in development of plan and specifies membership of committee. Requires department to report plan to Legislative Assembly by February 1, 2015. Governor signed. Effective 7/1/13.

sB 450

Establishes Task Force on the Delivery of Human Services. Governor signed. Effective 7/1/13.

sB 721

Imposes on nonschool athletic teams requirements for recognizing and responding to possible concussions. Governor signed. Effective 1/1/14.

sCr 1

Supports adoption of State Plan for Alzheimer’s Disease and Related Dementias in Oregon. Signed by Speaker and President.

Education

HB 2192

Establishes requirements for school policies related to discipline, suspension, or expulsion. Governor signed. Effective 6/4/13.



HB 2585

Directs State Board of Education to adopt process for by rule process to submit complaints about incidents involving use of physical restraint or seclusion in public education programs and process to investigate complaints. Directs State Board of Education to adopt by rule minimum standards for rooms used for seclusion. Requires entity that has jurisdiction over public education program to submit to Superintendent of Public Instruction its annual report detailing use of physical restraint and seclusion during preceding school year and to include information about seclusion rooms. Governor signed. Effective immediately.

HB 2743

Establishes Task Force on High School and Transition Success for Students with Disabilities. Sunsets task force on date of convening of 2015 regular session of Legislative Assembly. Governor signed.

HB 2753

Removes sunset on use of restraint/seclusion on student in public schools. Governor signed. Effective 7/1/13.

HB 2756

Prohibits public education program from purchasing, building, or using seclusion cells. Governor signed. Effective 4/5/13.

HB 2898

Allows student with disability to earn college credit as part of transition services. Passed House and Senate.

HB 3264

Establishes pilot program to assist students with disabilities to transition to life after high school. Governor signed.

HB 3474

Requires that parents be notified in advance of a group mental health screening of students and be permitted to opt out of the screening of their child. Governor signed. Effective 1/1/14.

Civil/disability rights

HB 2111

Revises standard for determination of whether individual is substantially limited in major life activity. Governor signed. Effective 1/1/14.

HB 2433

Prohibits court from considering party’s disability in determining child custody unless court finds behaviors or limitations related to party’s disability endanger or will endanger health, safety, or welfare of child. Allows court to consider noncustodial parent’s disability in determining parenting time only if court finds behaviors or limitations related to noncustodial parent’s disability endanger or will endanger health, safety, or welfare of child. Governor signed. Effective 1/1/14.

HB 2668

Expands definition of “place of public accommodation” to include places owned or maintained by public body and services provided by public body with exceptions. Governor signed. Effective 1/1/14.

HB 2669

Extends employee civil rights protections to interns performing work for educational purposes. Governor signed. Effective 6/13/13.



sB 610

Clarifies state law regarding the use of service animals in public accommodations and state government services. Governor signed. Effective 6/26/13.

Health Care

HB 2134

Requires Oregon Health Authority and Department of Human Services to adopt by rule, using advisory committee, uniform standards for co1lection of data on race, ethnicity, preferred languages, and disability status in surveys and in all programs in which authority or department collects, records, or reports such data. Governor signed. Effective 6/4/13.

sB 414

Permits Director of Department of Consumer and Business Services to seek restitution on behalf of consumer that suffered actual damages as result of insurer’s violation of Insurance Code or breach of insurance contract or policy and to seek other equitable relief that director deems appropriate under circumstances. Governor signed.

sB 483

Authorizes health care facility, health care provider, and patient to file notice of adverse health care incident with Oregon Patient Safety Commission. Sets forth procedures by which health care facilities, health care providers, and patients may engage in discussion and mediation related to adverse health care incidents. Directs commission to use information received from notices of adverse health care incidents to improve patient outcomes and reduce frequency of adverse health care incidents. Prohibits insurers from taking certain actions based on notice of adverse health care incident. Establishes Task Force on Resolution of Adverse Health Care Incidents. Directs task force to report to Legislative Assembly. Governor signed. Effective 3/18/13.

sB 843

Creates Work Group on Corrections Health Care Costs. Specifies membership and duties. Requires work group to make recommendations for legislation to reduce health care costs of Department of Corrections. Governor signed. Effective 6/26/13.

Guardianship

HB 2378

Allows parent or guardian of minor to file petition seeking appointment of guardian for minor as adult within 90 days before minor attains majority or such other time as court deems necessary and appropriate. Governor signed. Effective 5/9/13.

HB 2570

Provides that funds of person subject to protective proceeding may be used to pay reasonable fees, costs, and disbursements for services related to protective proceeding. Clarifies when court approval is required for payment of fees from funds of person subject to protective proceeding. Specifies factors for court to consider in determining whether to award attorney fees in protective proceeding and in determining amount of attorney fees to award. Prohibits reviewing court from modifying lower court decision making or denying award of attorney fees except upon finding of abuse of discretion. Governor signed. Effective 1/1/14.



HB 3129

Requires professional fiduciaries (people who are paid to act as a guardian) to be certified by the Center for Guardianship Certification as a “National Certified Guardian” or a “National Master Guardian.” Passed House and Senate.

Budget items

addictions and Mental Health

AMH got a total 18.4% increase from the 2011–2013 budget. Plus the Affordable Care Act expansion is expected to free up an additional $45 million in General Fund in this budget, which can be used to expand services.

The Blue Mountain Recovery Center in Pendleton is slated to close on January 1, 2014. There is a reduction of $9.7 million in funding for nondirect care and administration at OSH, closing one geropsychiatric ward (an $8.8 million saving), restructuring OSH pharmacy operations (a $3 million saving), and $7 million reduction in overtime and nondirect care staffing costs.

Senate Bill 5507 allows up to $79,401,530 to be spent to continue building the Junction City campus of OSH. In addition, operating costs for Junction City are provided for the last three months of the 2013–2015 biennium.

Three residential treatment homes are funded for Pendleton, on the site of the Eastern Oregon Training Center. These homes are scheduled to open by January 1, 2014, and provide about 40 jobs.

$21.8 million was approved for the expansion of children’s mental health services. This includes $1.8 million for the Early Assessment and Support Alliance (EASA) to be available statewide.

AMH plans to increase community provider rates by 2.4%. $4.2 million General Fund is slated for supported housing and peer delivered services, and $1.5 million is added for supported employment.

The legislature also directed DHS and OHA to create a plan for improved mental health services for seniors and people with disabilities.

intellectual and developmental disabilities

IDD services received $1,681,962,770 in total funds, a 15.8% increase over the 2011–2013 budget. In addition to covering continuing service needs, it does the following.

F Adds $1.2 million General Fund to support four additional Family to Family networks, making services available to more families across the state with a particular focus on eastern Oregon.

F As part of implementing an electronic web-based central client record and case management system, it adds $2.4 million General Fund ($4.8 million total funds).

F Adds $4.8 million General Fund ($13 million total funds) to cover roll-up costs associated with a 1.25% wage increase for Personal Support Workers (PSW) effective April 1, 2013. The budget also includes $7.4 million General Fund ($19.9 million total funds) as a placeholder for costs that will remain indeterminate until the conclusion of collective bargaining.

F Adds $10.3 million General Fund ($25.7 million total funds) and 40 positions (26.40 FTE) for the Employment First Initiative and associated quality assurance efforts to carry out activities under the Governor’s Executive Order #13-04.

$29.5 million in General Fund will be used primarily to restore the 6% rate reductions taken by programs in previous years. These include group homes, specialized living, transportation, and adult foster care.

Approval of the K Plan is expected to draw down an additional $126.6 million federal funds for the budget.



The legislature also directed DHS to implement a uniform needs assessment tool for individuals receiving DD services and eliminate program wide monetary caps on brokerage consumers’ individual service dollars. The amount of an individual’s brokerage personal service budget is to be based on needs identified through a functional needs assessment and the individual’s goals identified through the person-centered planning process.

aging and People with disabilities

APD received $2,425,682,990 total funds, which is 3.6% more than the 2011–2013 budget. It includes the following.

F An increase of $1.6 million General Fund for research and development funding to support pilot projects to develop new approaches to long-term care services.

F $9.1 million General Fund ($29.2 million total funds) to increase home and community-based care rates that have been flat since July 2008.

F Funding to serve more seniors with severe mental illness in the community instead of at the more costly Oregon State Hospital, at a cost of $7.3 million General Fund ($10.7 million total funds). Another $1.9 million General Fund ($5.3 million total funds) will support community capacity needed to serve hard-to-place clients requiring specialized care.

F Funding for a new design and restart for the Money Follows the Person program.

DHS and OHA are directed to submit reports to the 2015 Legislature on how they have created greater access to mental health and addiction services geared to the needs of seniors and persons with disabilities.

Savings from the new K Plan will be used to increase rates, increase the in-home housing allowance to support consumers being served in their own homes, and convert the relative adult foster care program to an in-home program. A portion of the investment is also targeted for home care worker collective bargaining.

The continuation of the Long Term Care Facility Assessment allows $21.6 million General Fund to be freed up for other uses including higher reimbursement rates and outlines a strategy for helping providers reach a goal of reducing Oregon’s long-term care bed capacity by 1 ,500 beds by the end of 2015.

Vocational rehabilitation

OVRS received a 14.8% increase from the 2011–2013 budget ($91,459,880 total funds, of which $17,716,441 are state General Funds). The state funds are an 11.6% increase from the 2011–2013 budget.

Centers for Independent Living received an additional $1.0 million General Fund, which is expected to bring budgets for Eastern Oregon Center for Independent Living (EOCIL) and Lane Independent Living Alliance (LILA) up to minimum operating level and cover a portion of the requested increase in overall base funding to all CILs.

Other

The Long Term Care Ombudsman received $585,488 General Fund and seven permanent positions (2.81 FTE) to support work under Senate Bill 626, which expands duties of the Long Term Care Ombudsman to advocate for residents of care facilities who have mental illness or developmental disabilities. There are about 7,600 persons living in 1,816 licensed adult foster homes and group homes in Oregon serving persons with developmental disabilities and mental illness.

The Marion County District Attorney received $200,000 General Fund to prosecute patients in OSH who assault staff.



aPPEndiX C—aMEndMEnts tO tHE OrEGOn uniFOrM trust COdE wOrK GrOuP rEPOrt2

2 The official report was submitted to the Legislative Assembly and is therefore a part of the legislative history. Thus, the official report is available at the State Archives and is also accessible on the Commission’s website at http://www.willamette.edu/wucl/centers/olc/groups/2011-2013/Biennial%20Report%20for%20Email%20with%20page%20numbers%202013.pdf.

Amendments to the Oregon Uniform Trust Code

Work Group Report

Prepared by:

Professor Susan N. Gary University of Oregon School of Law

Oregon Law Commissioner

From the Offices of the Executive Director Jeffrey C. Dobbins and

Deputy Director Wendy J. Johnson

Submitted for Approval to the Oregon Law Commission at its Meeting on March 20, 2013.

http://www.willamette.edu/wucl/centers/olc/groups/2011-2013/Biennial%20Report%20for%20Email%20with%20page%20numbers%202013.pdf





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I. Introductory summary

The law of trusts in Oregon was overhauled, effective January 1, 2006, with the adoption of much of the Uniform Trust Code. Over the past several years, several additional modifications have been made to the Oregon Uniform Trust Code (the “OUTC”). However, as lawyers continued to work with the OUTC in practice, lawyers identified a number of places where amendments to the OUTC could improve results for people working with or using trusts. Settlors, trustees, and beneficiaries, as well as their advisors will benefit from the proposed revisions.

II. History of the project

A committee of the Estate Planning and Administration Section of the Oregon State Bar identified a number of issues that should be addressed by legislative action. The committee worked for several months and developed a proposal that the committee presented to the Executive Committee of the Estate Planning and Administration Section. Due to the complicated nature of some of the issues, the committee was unable to develop legislation that the Executive Committee of the Section could approve. The Executive Committee thought having a broader group – a Work Group of the Oregon Law Commission – work on appropriate legislation would produce better results. Susan Gary, a member of the Estate Planning and Administration Section, and Charles Mauritz, chair of the committee, worked with Wendy Johnson, Deputy Director and General Counsel of the Oregon Law Commission, to develop a proposal for the Oregon Law Commission. The Oregon Law Commission approved the creation of a work group in November 2012. Due to the significant work already completed on the project by the Estate Planning and Administration Section, and because those who use trusts and the Oregon Uniform Trust Code would benefit from adoption of the amendments as soon as possible, the work group’s goal was to prepare a bill for the 2013 session. The work group met several times in January and February, completing its work in time for legislative counsel to complete work on the bill by the deadline. The work group included representatives from the original committee, other members of the Estate Planning and Administration Section who disagreed with some of the original proposals, a representative from the charities division of the office of the Attorney General, a representative of the Oregon Bankers’ Association, and Legislative Counsel. Work group members included Chair, Prof. Susan N. Gary, University of Oregon School of Law and OLC Commissioner; Susan Bower, Oregon Dept. of Justice; Bill Brewer, Hershner Hunter LLP; Christopher Cline, Wells Fargo Bank; John Draneas, Draneas & Huglin PC; D. Charles Mauritz, Duffy Kekel LLP; Hilary Newcomb, HAN Legal; Robert Saalfeld, Saalfeld Griggs PC; Lane Shetterly, Shetterly Irick & Ozias and



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Chair of OLC; Jeff Thede, Thede Culpepper Moore Munro & Silliman LLP; Vanessa Usui, Duffy Kekel LLP; Matthew Whitman, Cartwright, Whitman, Baer PC and Ken Sherman, Jr., Sherman Sherman Johnnie & Hoyt. Staff members included Prof. Jeff Dobbins, Executive Director of the OLC; Dave Heynderickx, Special Counsel to the Legislative Counsel; Wendy Johnson, Deputy Director and General Counsel of the Oregon Law Commission and BeaLisa Sydlik, Deputy Legislative Counsel.

III. Statement of the problem area and objectives of the proposal

The proposed legislation seeks to balance the interests of beneficiaries in trusts with the need for efficient administration of trusts. The amendments facilitate the use of nonjudicial settlement agreements for trust modification, provide a means for a trustee to get advance authorization for certain actions through notice to beneficiaries, and provide a number of clarifying changes to delegation rules, removal, and the appointment of advisers that should improve the administration of trusts. Some of the amendments follow common estate planning practices.

IV. Review of legal solutions existing or proposed elsewhere

David English, Reporter for the Uniform Trust Code, provided comments on the original proposal, and his comments informed some of the work group discussions. The work group also considered the language of the Uniform Trust Code and in one case the amendment made in this bill returns the language of the Oregon statute to the language of the Uniform Trust Code because Oregon had adopted that section with non-uniform language.

V. The proposal Section 1: This section adds two new definitions to the ORS 130.010:

(15) “Remote interest beneficiary” means a beneficiary, other than a qualified beneficiary, whose beneficial interest in the trust at the time the determination of interest is made is contingent upon the termination of the qualified beneficiary interest, the secondary beneficiary interest and any other beneficiary interest that precedes the interest of the remote interest beneficiary. (17) “Secondary beneficiary” means a beneficiary who, at the time the determination of interest is made, shall become a qualified beneficiary on the termination of the interest of a qualified beneficiary.

The OUTC provides for certain rights of notice to be given to different categories of beneficiaries. The current OUTC provides for “beneficiaries,” “qualified beneficiaries,” and “permissible distributees.” The intention of the amendment is to create two new categories of beneficiaries, “remote interest beneficiaries” and “secondary beneficiaries.” The purpose of the new categories is to provide that in



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some circumstances notice need not be given to beneficiaries whose interest is so remote that they will never benefit from the trust. Trustees have sometimes found it difficult to obtain consent for needed modifications if consent must be obtained from all beneficiaries and some beneficiaries’ interests are remote. Beneficiaries who know that they will likely never receive anything from the trust may fail to respond to requests for consent. The purpose of the amendments will be to limit the necessary notice in situations where a beneficiary’s interest is remote. A remote interest beneficiary is a beneficiary that is at least third in line and in many situations fourth in line. The definition of secondary beneficiary is necessary to create the desired definition of remote interest beneficiary.

Section 2: This section amends ORS 130.045, the section that provides for nonjudicial settlement agreements on matters involving a trust. The amendment changes the persons who may enter into an agreement and clarifies the effect of filing the agreement in court. The current definition includes as “interested persons” who may enter into an agreement “beneficiaries of the trust who have an interest in the subject matter of the agreement.” That provision is changed to “qualified beneficiaries.” Thus, all qualified beneficiaries can be parties to the agreement without a determination that each one is interested in the subject matter. The Attorney General is an interested person under the current definition if the trust is a charitable trust, and that provision is clarified so that the Attorney General will be an interested person whether the charitable trust is subject to the supervision of the Attorney General (as an Oregon trust) or not. This change is needed so the Attorney General can represent the interests of an Oregon charity that is the beneficiary of a trust created and operating outside Oregon. If a trust includes a gift to a charity and the settlor reserves the power to change the name of the charity (the identity of the beneficiary), the Attorney General represents the interests of all charitable beneficiaries so that a named charity that may not remain a beneficiary will not be an interested person for purposes of the agreement.

The changes to ORS 130.045 clarify that if the agreement is not filed with the court, the agreement will be binding only on the parties to the agreement. If the parties file the agreement with the court and provide notice of a right to object to beneficiaries, the agreement will be binding on all those who receive or waive notice,if no one objects. If someone objects and a hearing is held, the decision of the court will be binding on all beneficiaries of the trust and all parties to the agreement. If the court does not approve the agreement, the agreement will not be binding on any beneficiary or party. The time period for objections is decreased from 120 days to 60 days. The longer time period impedes the ability of trusts to accomplish modifications in an efficient manner, and 60 days allows ample time for objection.

Section 3: This section amends ORS 130.170 to confirm that a trust created to distribute funds to charities is a charitable trust. Because the definition of



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charitable trust defines as a charitable trust a portion of a trust devoted to charitable purposes, the changes clarify that if the charitable interests are negligible or if the charitable beneficiaries are all remote interest beneficiaries, the portion of the trust held by charitable beneficiaries will not be considered a charitable trust. For example, if a trust provides for three generations of family members, with multiple people at each generation, and then provides a contingent remainder interest in a charity so that the charity takes only if all family members die before the trust terminates, the contingent remainder interest will not be considered a “charitable trust” for purposes of the OUTC.

Section 4: This section adds a cross-reference to ORS 130.195.

Section 5: ORS 130.200(1) provides that if a settlor and all beneficiaries consent, a court can approve a modification of an irrevocable trust. Section 5 limits the beneficiaries who must consent to beneficiaries other than remote interest beneficiaries. Even if not all beneficiaries agree, ORS 130.200(5) permits a court to approve a modification if the court could have done so under the section with the consent of all beneficiaries. Consistent with the change to ORS 130.200(1), this subsection is changed to exclude remote interest beneficiaries from the beneficiaries who would have been required to consent.

Under ORS 130.200 the settlor’s power to consent to modification can be exercised by an agent acting under a power of attorney only if the terms of the trust authorized an agent to consent to modification. Section 5 permits the authorization to occur either in the terms of the trust or in the grant of the power of attorney. This changes conforms Oregon law to the Uniform Trust Code.

Section 6: Section 6 amends ORS 130.215, the provision that permits termination of a trust if the value of the trust property is too small to justify the cost of administration. The change will permit termination if the trustee is a beneficiary, so long as the trustee is not a qualified beneficiary (someone currently receiving distributions or who will receive distributions if the trust terminates).

Section 7: This section amends ORS 130.305, which governs spendthrift provisions. The amendment adds a clarifying subsection that states that entering into a settlement agreement is not, by itself, a transfer in violation of a spendthrift provision.

Section 8: This section changes the language to clarify that a court may order execution against an amount a trustee is required to distribute.

Section 9: A new subsection in ORS 130.315 provides that creditors cannot reach assets in a trust solely because the trustee holds a discretionary power to pay taxes or to reimburse the settlor for taxes paid. Property becomes subject to creditors only if the property is subject to a power of withdrawal greater than the amount of the annual exclusion or, if the donor was married, twice that amount. Assets in an



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inter vivos marital deduction trust will be deemed contributed by the donor’s spouse. Assets contributed to a trust by a settlor will not be subject to claims of the settlor’s creditors if someone else is given a non-general power of appointment.

Section 10: This section explains which provisions of the OUTC apply to revocable trusts. The changes clarify that the statutory rules apply to trusts that were revocable on the occurrence of an event or until the settlor’s death.

Section 11: This section amends ORS 130.555 to clarify when a child will be considered a pretermitted child for purposes of a revocable trust. A child will not be considered pretermitted if the settlor acknowledges or mentions the child by name or by class either in the trust instrument or in the settlor’s will. The amendment links the rules that apply to wills and revocable trusts so that the law will apply consistently in a situation in which a settlor has both a will and a revocable trust. Section 11 amends the statute so that a child will be covered if the child is born or adopted while the settlor is alive but not after the settlor’s death unless the child is in gestation at the settlor’s death.

ORS 130.555 currently gives a pretermitted child the share the child would have received if the settlor had died intestate, with no trust. Section 11 incorporates the provisions from the intestacy statute into ORS 130.555, so the statute now directly states the share to which a pretermitted child will be entitled.

Section 12: This section amends the provision in ORS 130.610 on delegation of duties by a co-trustee to another co-trustee. Section 12 adds language to make clear that a delegation or a revocation or termination of a delegation must be in writing.

Section 13: This section amends ORS 130.615 to provide that a vacancy in a charitable trust can be filled by unanimous agreement of all qualified beneficiaries and the Attorney General. The current version of the subsection requires the agreement of all charitable beneficiaries, which would include remote interest charitable beneficiaries and secondary charitable beneficiaries. The change will make it easier to fill a vacancy in a trusteeship, and the Attorney General can protect the interests of any charitable beneficiaries who are not qualified beneficiaries.

Section 14: ORS 130.630 authorizes the court to remove a trustee if removal “best serves the interests of all of the beneficiaries” and certain other requirements are met but only if “[r]emoval is not inconsistent with a material purpose of the trust.” A trustee can always argue that a settlor’s choice of trustee is a material purpose of the trust, which has made removal under this provision difficult. Section 14 amends the subsection to permit the court to remove the trustee if the other requirements are met unless the trustee establishes “by clear and convincing evidence that removal is inconsistent with a material purpose of the trust.”

Section 15: ORS 130.630 states the duties of a trustee who has been removed or has resigned. Section 15 provides that the successor trustee or the court may require



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the departing trustee to prepare a final report, and if the departing trustee is required to prepare a final report, the trust must pay reasonable fees and costs.

Section 16: This section clarifies rules on fees paid to trustees by adding two subsections. Compensation must reflect the total services provided to the trust by co-trustees or by third parties such as financial advisors, so that the trust is not paying duplicative fees.

Sections 17 and 18: A trustee has a duty of obedience to carry out the terms of the trust (ORS 130.650) and a duty of loyalty to administer the trust solely in the interests of the beneficiaries (ORS 130.655). These duties could suggest to a trustee that any modification of a trust would be a violation of one or both of these duties. Section 17 amends ORS 130.650 and Section 18 amends ORS 130.655 to clarify that the mere existence of these duties does not require a trustee to object to a modification of a trust.

Section 19: ORS 130.710 requires the trustee to keep the qualified beneficiaries informed about the administration of the trust. The current statute requires a trustee who leaves office to send a report to the qualified beneficiaries. The amendment states that the former trustee must send the report if the successor trustee or the court requires it.

Section 20: This section clarifies ORS 130.725(22) to indicate that distribution of trust property may include payments in cash or in kind.

Section 21: This section rewrites ORS 130.730 to provide more clarity in the trustee’s duties on termination of a trust and the effectiveness of a release executed by a beneficiary.

Section 22: ORS 130.735 provides rules for the appointment of a person who will act as an adviser to the trustee. Section 22 adds a sentence indicating that “[t]he appointment may provide for succession of advisers and for a process for the removal of advisers.” Section 22 also adds a provision on removal of an adviser by the court.

Section 24: This section creates a new section in ORS chapter 130. The new section states that if a trustee is permitted or obligated to divide a trust into separate shares for separate beneficiaries, each share will be deemed a new trust and the trust from which the new trust is created will be deemed to terminate.

Section 25: This section creates a new section in ORS chapter 130. The new section creates a process by which a trustee can give a beneficiary notice of a proposed action and then proceed with the action if the beneficiary does not object within 45 days. The notice to the beneficiary must clearly inform the beneficiary of the right to object and the way to object and must provide sufficient information for the beneficiary to make an informed decision about whether to object. The beneficiary



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must object in writing. If the beneficiary does not object the beneficiary is barred from taking action against the trustee in connection with the action. The notice process does not apply to a number of types of self-dealing transactions between the trustee and trust, including, among others, settlement of trust accounts or the trustee’s report, actions involving property sales or exchanges between the trustee and the trust, and settlement of actions by the trust against the trustee. The new section lists the types of actions to which the section does not apply.

VI. Conclusion [reasons the bill should be adopted]



