Guardianships and Conservatorships Cosponsored by the Elder Law Section Friday, October 6, 2017 8:30 a.m.–4:30 p.m. 4.25 General CLE or Practical Skills credits, 1 Ethics credit, and 1 Elder Abuse Reporting credit GUARDIANSHIPS AND CONSERVATORSHIPS SECTION PLANNERS Kay Hyde Patton, Chair, Leahy Van Vactor Cox & Melendy LLP, Springfield Penny Davis, Davis Pagnano McNeil & Vigna LLP, Portland Denise Gorrell, Samuels Yoelin Kantor LLP, Portland Rebecca Kueny, The Pixton Law Group, Lake Oswego Jennifer Kwon, Kwon Law LLC, Portland S. Jane Patterson, Attorney at Law, Gresham Julie Meyer Rowett, Yazzolino & Rowett LLP, Portland Mark M. Williams, Gaydos Churnside & Balthrop PC, Eugene OREGON STATE BAR ELDER LAW SECTION EXECUTIVE COMMITTEE Monica D. Pacheco, Chair Jan Elana Friedman, Chair-Elect Kay Hyde-Patton, Past Chair Darin J. Dooley, Treasurer Theressa Hollis, Secretary Kathryn M. Belcher Jason C. Broesder Don Blair Dickman Erin M. Evers Denise Nicole Gorrell Jennifer H. Kwon Anastasia Yu Meisner J. Thomas Pixton Michael A. Schmidt Whitney D. Yazzolino 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 © 2017 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Guardianships and Conservatorships ii TABLE OF CONTENTS Schedule . v Faculty . vii 1. Guardianship for Adults and Alternatives . 1–i — Tim McNeil, Davis Pagnano McNeil & Vigna LLP, Portland, Oregon 2. Conservatorships . 2–i — Julie Meyer Rowett, Yazzolino & Rowett LLP, Portland, Oregon 3. Advising Lay Fiduciaries—Presentation Slides. 3–i — Leathan Teal, Educational Manager, Guardian Partners, Portland, Oregon 4A. UTCR 5.100 Continuing Confusion—Presentation Slides . 4A–i — The Honorable Paula Bechtold, Coos County Circuit Court, Coos Bay, Oregon 4B. Establishing Guardianships and Conservatorships; Contested Proceedings; Accounting Tips from the Court . 4B–i — The Honorable Claudia Burton, Marion County Circuit Court, Salem, Oregon 5. Ethics Issues in Contested Cases . 5–i — Lisa Bertalan, Hendrix Brinich & Bertalan LLP, Bend, Oregon — Denise Gorrell, Samuels Yoelin Kantor LLP, Portland, Oregon — Stephen Owen, Attorney at Law, Portland, Oregon 6. Oregon Elder Abuse Reporting Requirements . 6–i — Mark Johnson Roberts, Oregon State Bar, Tigard, Oregon 7. Resources on Guardianship, Conservatorship, and Other Options . 7–i — Penny L. Davis, Davis Pagnano McNeil & Vigna LLP, Portland, Oregon Guardianships and Conservatorships iii Guardianships and Conservatorships iv SCHEDULE 7:30 Registration 8:30 Welcome—The Future of Protective Proceedings Michael Levelle, 2017 Oregon State Bar President 8:45 Guardianship for Adults and the Alternatives F Assessing the need for guardianship F Procedure and pleadings F Emergency proceedings F Guardian’s powers and duties Tim McNeil, Davis Pagnano McNeil & Vigna LLP, Portland 9:45 Conservatorships F Procedure and pleadings F Conservatorships for minors F Managing the estate F Accountings Julie Meyer Rowett, Yazzolino & Rowett LLP, Portland 10:45 Break 11:00 Advising Lay Fiduciaries F Guardian Partners programs and experience F Court requirements for fiduciary education F Lay fiduciary training overview Leathan Teal, Educational Manager, Guardian Partners, Portland Mark M. Williams, Gaydos Churnside & Balthrop PC, Eugene Noon Elder Law Section Annual Meeting 12:15 Lunch 1:15 Protective Proceedings F Hearings in contested cases F Tips and traps for conservatorship accountings F Attorney fees requests The Honorable Claudia Burton, Marion County Circuit Court, Salem 2:15 Ethics Issues in Contested Cases F Identifying conflicts of interest F Representing a person with diminished capacity F Working with self-represented parties F Getting paid, ethically Lisa Bertalan, Hendrix Brinich & Bertalan LLP, Bend Denise Gorrell, Samuels Yoelin Kantor LLP, Portland Stephen Owen, Attorney at Law, Portland 3:15 Break Guardianships and Conservatorships v SCHEDULE (Continued) 3:30 Oregon Elder Abuse Reporting Requirements F Recognizing elder abuse F Financial exploitation and “wrongful taking” F Protecting client confidentiality Mark Johnson Roberts, Oregon State Bar, Tigard 4:30 Adjourn Guardianships and Conservatorships vi FACULTY The Honorable Claudia Burton, Marion County Circuit Court, Salem. Judge Burton became a Circuit Court Judge in January 2004. Before that, she was a hearings referee/pro tem circuit court judge, an administrative law judge, and in private practice in both California and Oregon. She is admitted to practice in Oregon, California, and Washington. Lisa Bertalan, Hendrix Brinich & Bertalan LLP, Bend. Ms. Bertalan specializes in estate and tax planning, guardianship and conservatorship law, probate and elder law. She is a past member of the Oregon State Bar Estate Planning Newsletter Editorial Board, the Oregon State Bar Elder Law Section Executive Committee, the Department of Justice Elder Abuse Task Force, and the State of Oregon Long Term Care Advisory Committee. While serving on the Elder Abuse Task Force, Ms. Bertalan drafted several bills that are now law to protect Oregon seniors from financial and physical abuse. Ms. Bertalan also served as the Municipal Judge of Bend from 1993 to 2008. Denise Gorrell, Samuels Yoelin Kantor LLP, Portland. Ms. Gorrell works on a wide range of litigation and guardianship administration issues, with a focus on fiduciary litigation for professional fiduciaries, individual trustees, beneficiaries, and personal representatives. Ms. Gorrell’s litigation expertise includes contested guardianship and conservatorship cases, will contests, undue influence, claims of fiduciary breach, and financial elder abuse cases. Ms. Gorrell is a regular lecturer on fiduciary litigation issues. Tim McNeil, Davis Pagnano McNeil & Vigna LLP, Portland. Mr. McNeil is a member of the National Academy of Elder Law Attorneys and a past member of the Oregon State Bar Pro Bono Committee. He is the 2005 recipient of the Senior Law Project Volunteer of the Year Award for assisting elderly clients. He also volunteers to represent children in family court cases. Mr. McNeil is a regular presenter on elder law topics. Stephen Owen, Attorney at Law, Portland. Mr. Owen’s practice emphasizes probate, trust, and elder law litigation matters, including cases involving contested conservator and guardian proceedings. He also acts as a neutral mediator in these types of cases. Mr. Owen is a frequent speaker on guardianship, conservatorship, trust dispute, and probate law matters. Mark Johnson Roberts, Oregon State Bar, Tigard. Mr. Johnson Roberts is Deputy General Counsel to the Oregon State Bar. He provides prospective ethics advice to Oregon lawyers and counsel to the bar on regulatory, employment, and business matters. He practiced family law in Portland for 26 years before joining the bar’s staff in 2016. Mr. Johnson Roberts is chair of the American Bar Association Commission on Sexual Orientation and Gender Identity, past president of the Oregon State Bar, past president of the National LGBT Bar Association, and past chair of Oregon’s State Professional Responsibility Board. He is the 2014 recipient of the Multnomah Bar Association 2014 Professionalism Award in recognition of his many years of service to the bench and bar. Mr. Johnson Roberts holds an LL.M. in International Law from the Willamette University College of Law. Julie Meyer Rowett, Yazzolino & Rowett LLP, Portland. Ms. Rowett’s expertise includes estate planning and administration, protective proceedings, special needs planning, Medicaid, and planning for long- term care. She is a member of the Oregon State Bar Estate Planning and Administration Section and Elder Law Section and the National Academy of Elder Law Attorneys. Ms. Rowett is a frequent presenter at continuing legal education events, speaking on topics such as Medicaid, income cap trusts, and guardianships. Ms. Rowett is a long-time volunteer with the Multnomah County Senior Law Project and the Senior Milwaukie Center. She is one of the 2013 recipients of the Multnomah Bar Association Senior Law Project Volunteer of the Year. Guardianships and Conservatorships vii FACULTY (Continued) Leathan Teal, Educational Manager, Guardian Partners, Portland. Mark M. Williams, Gaydos Churnside & Balthrop PC, Eugene. Mr. Williams’s practice comprises all facets of elder law, including contested guardianships and conservatorships for individuals and working with professional fiduciaries; he also has substantial experience in estate planning matters. Mr. Williams is a member of the National Academy of Elder Law Attorneys, the State of Oregon Continuing Care Retirement Communities Advisory Council, and the Oregon State Bar Elder Law Section and Legal Ethics Committee. He also serves as adjunct professor to the Concordia University College of Health and Social Services and an adjunct instructor and lecturer at the University of Oregon Law School. Guardianships and Conservatorships viii Chapter 1 Guardianship for Adults and Alternatives TIM MCNEIL1 Davis Pagnano McNeil & Vigna LLP Portland, Oregon Contents I. General Background—Guardianships and Less Restrictive Alternatives . 1–1 A. Protective Proceedings . 1–1 B. Civil Rights and Less Restrictive Alternatives