What assets can be seized in a lawsuit?
https://www.oregonlegislature.gov/bills_laws/ors/ors093.html
93.740 (lis pendens)
Oregon considers dropping bar exam requirement for new lawyers — a rare move among states
The Oregonian released a piece today, outlining mostly proponent statements about dropping the bar exam requirement. A link to the original article is here.
I am quoted at the very end of the article. I sent my full statement in opposition to the Oregonian, and hoped they would provide more context for my position. Rather than repeating it here, I’m providing my full, unredacted statement as given to the Oregon Supreme Court here:
Sent: Thursday, June 24, 2021 4:00 PM
To: Martha L. Walters <Martha.L.Walters@ojd.state.or.us>
Subject: Alternatives for Bar admission under consideration (June 30, 2021 deadline)
Chief Justice Walters,
I may be a lonely voice in opposition to several recommendations proposed by the OSB task force directed to review alternatives to Bar admission. Luckily, we live in an open-minded system where my points of view are protected from threats of reprise.
I disagree with the three alternatives proposed by the OSB task force.
Here is my understanding of what the Bar wants to promote: inclusion. It turns out, this aligns with my goal as well. We need more competent attorneys representing those in need. Especially, those in rural, underserved, and impoverished communities. I live and serve rural eastern Oregon. We need more competent attorneys. Please.
The way to do that is by increasing the number of competent attorneys practicing in the state. The way to ensure competence is by maintaining the Bar exam.
So how then do we increase the pool of candidates which should thereby increase the number of practicing attorneys? I would suggest two systemic failings: 1) An outrageously expensive university system, that between undergraduate and grad school typically saddles those lucky enough to earn a diploma with significant student loan debt, and 2) A Bar application process that unnecessarily limits candidates based on outdated criteria.
RE: Point one. I would posit this systemic failing is the primary reason we are currently facing representation problems in the aforementioned rural, underserved and impoverished communities. It takes money to make money, as they say. Being poor is not an insurmountable obstacle to attending law school, but it certainly creates a barrier to entry. RE: Point two. Allowing applicants that have attended a school, even other than an ABA accredited school, or have gone to a year of law school at an ABA accredited school, followed by 3 years of apprenticeship with a member of the bar having 5 or more years experience, to sit for the Bar, would increase the applicant pool.
There are other ways to increase the pool of candidates, these are just a couple ideas. These are not even necessarily the best ideas. The bar exam is the great equalizer. The bias to adding qualified, competent attorneys to the Oregon Bar system, if such bias in the system exists, is at the university level, not at the Bar exam level. Do not lower the standard by removing the bar or providing alternatives to the bar. Increase the candidate pool and expand the pie.
It is my humble opinion that any decision other than maintaining the Bar exam as a minimum standard for entry will be seen as a legacy of regret in the decades to come.
Thank you for your time and attention.
Sincerely,
Blaine Clooten
OSB 133294
Oregon Custody Laws Article – Basic Overview
Oregon custody laws help determine which parent has custody rights over a child. These rights enable parents to make decisions regarding the child’s upbringing and determine with whom the child will live.
1. Oregon Custody Law Does Not Favor Either Parent (as written)
Some people believe that the child custody process favors the child’s mother. This is not true. Fathers’ rights in Oregon are viewed as equal to mothers’ rights.
Instead, according to Oregon custody law, courts largely base their decisions on what is in the best interests of the child.
For example, if the mother has a history of committing domestic abuse, the father may have a higher likelihood of receiving sole custody.
In reality, judges are the ones who make the final decision. You should talk to an attorney about what to expect from the judge in your particular case.
2. Oregon Custody Courts May Require Mediation (almost always do)
According to Oregon custody law, the state’s circuit courts hear all custody cases. These courts are separated by county, and each county can have slightly different rules regarding the custody process.
In some counties, parents are required to negotiate the parenting plan in mediation (True in Umatilla County). Mediation is a confidential process where the parents attempt to create a parenting plan on their own. The mediation is overseen by an impartial third-party mediator.
If you want to know whether your county’s circuit court requires mediation, talk to a Oregon custody lawyer near you.
You are not required to come to an agreement during mediation, however mediated agreements are often seen as better than letting a judge decide. The reason being the judge is not a parent and cannot possibly find out everything there is to know during a hearing or trial in the same way that parents who have been living with the children every day can.
3. Custody Orders Cannot Be Changed Without Court Approval
In Oregon, fighting for child custody ends when a judge signs a child custody order. This order will specify which parents have what type of custody, child visitation rights and child support obligations.
Even if the parents make an agreement out of court after the order has been signed, the agreement will not be viewed as legal. Instead, to alter the child custody order, a parent will have to file a motion requesting modification of the order.
4. The Basics of Legal Custody in Oregon (think decision making)
There are two types of custody that can be awarded under Oregon custody law. One of these is legal custody.
Legal custody provides a parent or parents with the ability to make decisions regarding the child’s upbringing. This includes decisions regarding medical care and education.
Oregon judges are in favor of granting legal custody to both parents. However, it may not be in the best interests of the child to award legal custody to both parents. For example, if one parent has a history of abuse, the court will likely award legal custody to one parent.
5. The Basics of Physical Custody in Oregon (where the child lives)
The other type of custody is physical custody.
Physical custody refers to which parent the child lives with. The parent who has physical custody of the child is referred to as the custodial parent. The other parent is the non-custodial parent.
6. The Basics of Oregon Child Support
The court can order the non-custodial parent to pay the custodial parent child support. Child support is money that is intended to help finance the raising of the child.
Child support is calculated according to the Oregon child support guidelines. If you have questions about how much you may owe in child support, you should contact a Oregon custody attorney. You can also use the Oregon child support calculator (click here).
7. The Basics of Oregon Parenting Time (think time spent between parent’s homes)
The court may award the non-custodial parent visitation rights, or parenting time. This means the non-custodial parent can spend quality time with his child during certain designated times. Visitation may be supervised depending on the court’s order.
The non-custodial parent’s visitation rights will depend on what the court deems is in the best interests of the child. Generally, Oregon courts favor granting some level of visitation rights to the non-custodial parent. However, this may not be the case if the parent has a history of committing domestic abuse.
8. Several Factors Affect Child Custody Decisions
Under Oregon custody law, if mediation is unsuccessful, a judge will have to make a custody determination.
Whether you are disputing child custody in Portland, Eugene, Salem or another area of Oregon, the custody court will use the same factors.
The main factor the court considers is what is in the best interests of the child. Aside from this, a judge may also take into account:
(These are pulled from the Oregon Revised Statute 107.137)
If a parent has a history of committing domestic abuse
Fitness of the primary caregiver
Whether the parents can cooperate to support each other’s parent-child relationship
Whether to maintain the child’s current arrangements
The parents’ attitudes and interest toward the child
Emotional relationships between the child and family
A healthy portion of this information is pulled from this Original Post
Oregon Tribal Court
Tribal courts are an important part of tribal self-government for Oregon’s Indian Nations. Most tribes have their own constitutions and laws that determine how tribal courts resolve civil and criminal matters that occur on Indian lands. Some tribes choose to use traditional native forms of dispute resolution (using a mending process that renews damaged personal and communal relationships) and other tribes use an adversarial process (involving a plaintiff and defendant) to settle disputes. A Tribal-State Court Forum
consisting of representatives from nine Oregon Indian tribes, nine tribal court judges, nine OJD judges, tribal law attorneys, and others work on cross jurisdictional issues affecting the delivery of justice to Oregon’s Indian people in the state courts. The Forum’s work has included cross-jurisdictional recognition of tribal court protection orders; issues surrounding the Indian Child Welfare Act (ICWA); inter-jurisdictional drug courts; and easing costs involved in out-of-state representation of out-of-state Indian children in juvenile dependency cases.
Anxiety in a pandemic (Dealing with COVID-19) Lawyer
The global (and local) COVID-19 pandemic shines a light on the extraordinary stressors that many people can face during these uncertain times.
To help recognize the signs and symptoms of behavioral health disorders that can be adversely affected by such events, this article offers strategies to address potential issues — obviously, from an attorney (Clooten Law’s) perspective.
In an emergency (pandemic) like COVID-19 (corona virus), a lot of behavioral health disorders may be exacerbated (or surface for the first time), including depression, anxiety and substance use disorders. Clooten Law is looking at promoting our own resilience so that we preserve our competence and fitness to practice.
When a state of heightened anxiety persists for long periods of time, the symptoms of anxiety and depression can cause people to anxious, unsure and have a sense of almost paralysis.
These emotions are triggered by stress and can play out differently for anxiety versus depression. Anxiety causes overwhelming feelings of fear and distress. Depression can lead to changes in patterns of sleep, appetite and movement. This pandemic (Covid) is causing everyone to experience extreme stress.
Here are some general strategies to help deal with anxiety:
Although it can be difficult, practice tolerating uncertainty. You are vulnerable to anxiety if you cannot tolerate uncertainty. The solution: take it one day at time. Certainty will return, but until then, try to find little ways to find certainty in our everyday life. Try not to text a friend or family member when you need an immediate answer. Set the phone down, and wait. Another important way to deal with uncertainty is to relish in routine.
THE IMPORTANCE OF ROUTINE IN A PANDEMIC. Finding a routine, is an excellent way to maintain balance and a sense of normalcy. Little things like the time of day you wake up, and when you make meals. The way you go about making meals, and where you eat dinner. Shows you watch with a partner, or child. Having a bedtime routine (not only for children, but yourself!). Whatever routine you have, implement and repeat, and through that pattern, you will feel normalcy and control return to your mind.
Tackle the anxiety paradox. The more you try to not feel anxious, the more anxious you get. One way to deal with this is meditation. Another is to go for a walk, while listening to classical music. Another is to run. I find it very difficult to be anxious when I am completely out of breathe after doing a really hard exercise.
Don’t try to escape anxiety, embrace it. The more we realize that this is our current world, the more we can take back control. Some people relinquish control to “God’s will”. Others to Karma. Whatever your method, the sooner you become comfortable with the lack of control, the sooner you’ll be able to move on and control anxiety.
Practice gratitude daily. It sounds cliché, but even during this pandemic, there is a lot to be thankful for in the United States. Food is delivered to our doorstep. Hopefully, your family is still in good health. Hopefully, you personally are in good health. Find the good in your life, and focus on that rather than the things that you used to be able to do, that have been temporarily halted.
Debrief and connect with others. Misery loves company. Find others to communicate with, at a very base level, we are still humans, and humans crave connection. The more
Limit social media. Consider, shutting it off. I personally disconnected from social media a couple months into the pandemic in an effort to re-connect with the world around me. I find myself looking at the blue mountains, or staring into the Umatilla River a lot more often than I used to. It has been a refreshing change to refreshing my facebook page.
Revocable Living Trusts – Oregon
Revocable living trusts are often promoted as an effective alternative to probate. Even though Oregon’s probate system is relatively simple and inexpensive, many people seek an even quicker and easier mechanism for transferring the assets of a deceased person to the beneficiaries of that person. Revocable living trusts often serve this purpose, but they often create problems, too. To help you decide if a revocable living trust is right for you, here are answers to some of the most frequently asked questions about these trusts.
What is a revocable living trust?
A revocable living trust is a legal device that can be used to manage your property during your lifetime and to distribute your property after your death.
A revocable living trust is established by a written agreement or declaration, which appoints a “trustee” to administer the property transferred to the trust, and which gives detailed instructions on how the property is to be managed and eventually distributed. If you want your trust to substitute for a probate proceeding (court administration of property after death), you should legally transfer substantially all of your property to the trustee, and you should provide instructions to the trustee regarding how to distribute trust assets after your death. A revocable living trust agreement or declaration is usually longer and more complicated than a will, and transfer of assets to the trustee can be time-consuming and expensive. Any competent adult can establish a revocable living trust.
Who can be the trustee?
In Oregon any competent adult can be the trustee, including the person setting up the trust. An Oregon bank or trust company can also act as trustee. A professional fiduciary that is not an Oregon bank or trust company can act as trustee, if a court appoints it and it posts a bond. You can appoint more than one trustee, delegating different duties to each trustee if you wish, and you can retain the power to remove the trustee and appoint a new one. Appointing a successor trustee is essential if you are the first trustee and the trust will carry on after you die or become incapacitated.
How is a revocable living trust established?
IIf a revocable living trust is appropriate for you, you will need a written agreement or declaration of trust, which sets out your plan for management and distribution of your assets. Then you must legally transfer most trust assets to the trustee. Deeds, stock transfers, new bank accounts and other legal documents may be necessary. Some assets, such as IRAs and annuities, should not be transferred to the trustee. An attorney and accountant should be consulted regarding the specific assets that should be transferred to the trustee. Assets not formally transferred to the trustee may not be considered part of the trust and might still be subject to probate.
A will also plays a role in most estate plans that include a revocable living trust. In these estate plans, the will ensures that any property not properly placed in your trust before death can be transferred to it after death.
At your death your will can transfer up to $75,000 of personal property and $200,000 in real property to your trust through an affidavit filed with the court. Your will can transfer assets of greater value to your trust through the probate process. You can also have life insurance and certain pension accounts paid directly to the trust.
Here is an example of how trust assets should be registered: “John Doe, Trustee Under the Marty Smith Trust Agreement Dated January 1, 1990.” The trustee should not hold trust assets individually as “John Doe” without the additional information. The trustee must keep separate records for trust assets and might have to file separate income tax returns for the trust. If the trustee does not obey these rules, the trust may not avoid probate.
Probate and Revocable Living Trusts
Probate is a legal process for transferring your property when you die. It is supervised by a court.
Probate usually involves validation of your will, appointment of a personal representative, collection of your assets, notification of and payment to your creditors, and transfer of your property to the beneficiaries under your will. Probate creates a public record for the administration of your estate. This public record includes all of your assets that are subject to probate and their value at the time of your death.
A revocable living trust avoids the public process of probate, because you collect your assets and transfer them to the trustee before you die. The trustee then transfers your assets to your beneficiaries after your death. If you establish a trust but fail to transfer your assets to your trustee, it is unlikely that you will avoid probate.
If you die owning real estate outside Oregon, a court proceeding might be required in each state where real estate is located. A revocable living trust can avoid these extra court proceedings only if that property is transferred to your trust.
Sometimes it is not a good idea to avoid probate.
For instance, in a probate proceeding, your personal representative has special powers to deal with your creditors and can force them to file claims with the court or lose their claims. The trustee of a revocable living trust now has similar, optional powers to deal with creditors; however, using these powers may require some additional expense and delay, as in probate.
Even if you want to avoid probate, there may be better ways to do it. With regard to real property, you can execute a transfer-on-death deed which allows the death beneficiary named on the deed to automatically assume ownership of the property upon your death, with no need for probate. Joint tenancy ownership of specific assets, with the right of survivorship, can be a cost-effective way to avoid probate on the death of the first joint owner. There are several ways to pass bank accounts at death without probate, including joint accounts with right of survivorship, trust bank accounts, and so-called “payable on death” accounts. Most pension plans and life insurance policy proceeds pass under beneficiary designations that avoid probate without use of a revocable living trust. Depending on the nature and amount of property, one or more of these non-probate devices could be a less expensive way for you to avoid probate. Be aware though, that some of these non-probate devices can result in consequences relating to creditors, taxes, eligibility for publicly provided long-term care, and loss of independent control over an asset.
What is a conservatorship?
Conservatorship is the legal process for management of your property and providing for your financial needs when you become incapacitated. If a court determines you can no longer handle your financial affairs, a conservator is appointed. The conservator must list your assets in the court file, manage your property under court supervision and file periodic accountings with the court.
If you transfer all of your assets to a revocable living trust and give your trustee detailed instructions on how to handle your assets if you become disabled, there should be no need for a conservatorship. Your written agreement or declaration can specifically define a process for establishing that you are incapacitated. In some revocable living trusts, your trustee is authorized to make this determination. In others, your trustee is authorized to rely on a letter from your physician as proof of your incapacity.
A conservator can establish, or fund, a revocable living trust if: 1) the trust would be a more efficient way to administer the property of the incapacitated person; and 2) use of the trust would be consistent with the person’s overall estate plan. A special court order is needed to do this, however.
Durable Power of Attorney
A durable power of attorney may serve as a relatively inexpensive way to avoid conservatorship.
This document appoints another person as your “attorney in fact” to handle your assets. A durable power of attorney may briefly and generally describe the authority of your attorney-in- fact, or it may specifically itemize, in great detail, the actions that you authorize your attorney-in-fact to take on your behalf. A durable power of attorney is less expensive than a revocable living trust, because it involves no transfers of assets and no estate distribution plan upon your death.
However, durable powers of attorney frequently give no direction to your attorney-in-fact regarding your plans for investments, money management or distribution. They generally contain no written restrictions on their use.
With a revocable living trust, it is possible to not transfer all assets to the trustee immediately, but specifically to authorize the attorney-in-fact to finish funding the trust if you become incapacitated. This approach will not avoid probate, however, if the trust funding is not completed before you die, because the power of attorney dies with you.
Does a revocable living trust avoid taxes?
By itself, a revocable living trust does not avoid income, estate or gift taxes. Provisions for saving estate and gift taxes can be included in a revocable living trust or in a will. Whether your assets are held in a trust or not, a state estate tax return must be filed after you die if your property exceeds $1 million in value, and a federal estate tax return must be filed after you die if your property exceeds $5 million in value. You should not set up a revocable living trust just to save taxes.
What does a revocable living trust cost?
The exact cost of a revocable living trust depends on how complicated your assets and your estate planning goals are, how many assets must be transferred to the trustee, and whether tax planning is needed. Before you direct an attorney to set up a trust for you, ask for estimates of how much it will cost, how much writing a will would cost and how much probating your estate would cost.
If you do not plan to serve as your own trustee, you should consider any fees you might want to pay the trustee and whether those fees would replace fees that you are already paying to manage your assets.
A revocable living trust plan should include the trust document, the transfer of assets to the trust, a “pour over” will to add any other assets to the trust, and a durable power of attorney. It also might include related legal documents, such as an advance directive regarding medical decisions and a certification of trust, which summarizes important trust terms and information.
Advantages of a Revocable Living Trust
Avoidance of probate. In particular, a revocable living trust can avoid expensive multiple probate proceedings when you own real estate in several different states, as well as the publication of the otherwise private financial details of your estate.
Avoidance of conservatorship. A revocable trust can avoid the additional cost of a conservatorship in the event of your incapacityy.
Efficient distribution. A revocable trust can reduce delays in distributing your property after you die, although delays caused by filing an estate tax return cannot be avoided.
Confidentiality. Generally the terms of your living trust are confidential, with only your named beneficiaries and trustee having access to that information.
Continuity. A trust can provide continuity of management of your property after your death or incapacity.
Disadvantages of a Revocable Living Trust
Expenses of planning. A revocable living trust is more complicated than a will to draft, and asset transfers can take time and can result in additional costs.
Expenses of administration. If you appoint a bank or trust company as trustee, you will have fees to pay (though these may take the place of investment advisory fees and other fees you are already paying). Setting up a revocable living trust will not eliminate the need for professional services of attorneys and accountants in the future.
Inconvenience. Once the trust is established, you must be sure that trust books are maintained and that all assets continue to be registered to the trustee. Persons dealing with the trustee (such as banks and title insurance companies) may want to review the trust instrument to check on the trustee’s powers and duties.
Unforeseen problems. Revocable living trusts can raise a variety of new problems regarding the ability to borrow against property, title insurance coverage, real estate in other countries, Subchapter-S stock, certain pension distributions, and many other issues. Only a skilled attorney familiar with estate planning can tell you whether, on the whole, a revocable living trust is right for you, your family and your assets.
Complexity. Revocable living trusts often are more complicated than wills and can leave you confused about an estate plan that will require your attention and management for an indefinite period of time.
Power of Attorney – Other powers – Oregon
Who will manage your financial matters if you become seriously ill, disabled, or injured and cannot handle them for yourself? Many people expect that a spouse or other family member automatically has the power to help with financial matters; but this is not true. Under Oregon law, someone must have special authority to act for another person. You accomplish this through a written document authorizing another person to act on your behalf. You must sign the document before you are incapacitated. Once you have lost the ability to understand and manage your own affairs, you can no longer authorize someone else to handle them for you.
Powers of Attorney
A power of attorney is the most commonly used document granting financial authority to another person. A power of attorney gives someone else, called an agent, the right to make financial decisions about the matters you specify in the document. If you limit the power to certain decisions, the document is a specific power of attorney. If you do not limit the power you give to your agent, the document is known as a general power of attorney. You may sign a specific power of attorney at the bank to give an adult child the authority to make deposits and write checks on a specific bank account. You can use general power of attorney to authorize another person to handle a wide range of matters including banking, buying and selling property, and making investments on your behalf. The document itself states whether the powers it authorizes are specific or general. You can make the power of attorney temporary if, for example, you are going to be out of the country and want an agent to handle your affairs when you are gone.
If the power of attorney does not contain an ending date, the law assumes it is “durable.” That means the authority does not end, even if you are incapacitated. A durable power of attorney is useful when the person who authorized it later becomes unable to handle his or her own business affairs; the agent simply takes over the decision-making.
By giving your agent power of attorney, you are not giving up the power to continue conducting the transactions yourself while you are able to do so. You can end the agent’s authority by revoking the authority in writing. All powers of attorney end upon your death.
A power of attorney generally become effective when you sign the document. Oregon law also specifically allows powers of attorney that take effect at the time other than when signed. You can give a specific date when it will go into effect, list a particular event that would cause the power to be effective, or describe a situation when the power could be used. This type of power of attorney is called a “springing” power, because it springs to life only if the event outlined in the document comes to pass. If you prefer to give an agent power in the future if you become unable to handle your affairs due to incapacity, you can also say who will determine if you have become incapacited, such as one or more doctors or the court.
Forms for powers of attorney are available from many sources. This is both good and bad. It is easy to buy an inexpensive form from a stationery store or find one on the internet. Without a lawyer’s advice, it can be risky to sign a document you do not understand and that might not meet your needs. It is important to understand that the agent named in the power of attorney can make decisions with serious financial consequences in all the areas listed in the document. Also, that person will have no authority to act in any areas not listed. A printed form may include too much power or too little power, depending on your individual circumstances. In addition, a power of attorney can be abused. Dishonest people may use this type of document to get control of your money or property. For this reason, it is advisable to speak to a lawyer if you plan to sign a power of attorney. The lawyer can help you decide what is needed. The lawyer may suggest the use of a printed form, perhaps adding language to limit or expand the powers in the form; or the lawyer may suggest a custo m document. In more complicated situations, the lawyer may offer additional option such as a trust.
Representative Payees, Guardians, Conservators
For the person who is no longer able to understand enough to sign documents, other legal tools are available. For example, the Social Security Administration and the Veterans Administration can appoint a representative payee to receive and handle the benefit checks on behalf of a person who is mentally or physically unable to handle the money. The government agencies will consider handling the person’s benefits this way only after being notified that the person is having a problem handling the money himself or herself; the agencies are required to investigate any report about the person’s inability to handle the funds before they arrange for a representative payee.
The power of a representative payee is limited to managing a person’s benefits at the government agency that grants it. If the person has other money or property that he or she cannot manage, it may be necessary for a state court to appoint a conservator or a guardian. A conservator handles only finances; one is appointed by the court if the person owns a house or other property that needs management or protection. A guardian generally makes decisions about health care and other personal matters, but not about significant financial matters. A guardian must honor a person’s advance directive for health care. A person for whom a conservator or guardian has been appointed loses control over his or her own finances. For that reason, the court will generally not grant them if there is a less restrictive option available to handle the person’s needs.
After a petition for conservatorship and/or guardianship is filed with the court, notices and copies are given to the person for whom the conservatorship and/or guardianship is requested, and mailed to close relatives. The court also appoints a court visitor who will interview the person along with other people who have information that may be useful, including healthcare providers. If there is an objection within 15 days, the court will hold a hearing to determine whether a guardianship and/or conservatorship is needed. If there are no objections, the judge generally signs the order appointing as conservator and/or guardian the person who asked for those powers. There are annual reporting requirements for both a guardianship and conservatorship. The guardian and conservator can be the same person or different people; and there can be one without the other.
A conservator and/or guardian usually has broad authority. A conservator is required to give a financial bond to guarantee that money or property will not be misused. Both a conservator and a guardian must make a written report to the court once a year.
Other Uses for These Tools
Powers of attorney can be useful for students or military members or others who expect to be out of the area or even out of the country, and for parents away from their children temporarily. Conservatorships and guardianships can be created over minor children and their property, too. In those cases, different rules and procedures apply than the ones for adults described in this topic. You will want to talk with a lawyer about these situations.
Advanced directive (Living Will) Oregon
Managing your final illness and appointing a health care representative to speak on your behalf is important, and can be done through a properly drafted and signed legal document. In Oregon, these documents are known as the Advance Directive and Appointment of Health Care Representative.
The Health Care Representative
Under both the advance directive and appointment of health care representative forms, you can appoint someone called a health care representative to make your health care decisions if you are unable to make them yourself. This health care representative can only make your healthcare decisions if you become incapable of making them yourself. Your health care representative must accept the nomination before the nomination is active. You must sign the advance directive and have it notarized or witnessed by two qualified witnesses. To be “qualified” a witness must be an adult who is not your attending physician, your attending health care provider, your health care representative or your alternate health care representative.
The Advance Directive
In addition to appointing a health care representative, the advance directive allows you to state your preferences regarding life support and tube feeding under certain circumstances. These circumstances are listed in the advance directive form and include: you are close to death and life support would only postpone, not prevent, death; you are permanently unconscious; you are in the end stages of an advanced progressive illness; or life support would not help your medical condition and would subject you to extraordinary suffering. You may use the checklist on the form and may also include a written narrative of your preferences for end-of-life care.
Who can serve as a health care representative?
Your health care representative can be any person you want, so long as they are an adult and are willing to serve as your representative and follow your stated preferences. People who cannot serve as your health care representative include your attending physician and their employees, the employees of a care facility (unless that person agreed to act on your behalf before he or she became employed at the facility). The form must include the health care representative’s contact information including their address, phone number(s), and email.
What are the duties of the health care representative?
The health care representative must attempt in good faith to follow your wishes as expressed in your advance directive. Once your representative agrees to serve, he or she cannot ignore the duty to do so. The only way the representative can avoid this duty is to resign altogether from serving as your representative. You should list one or two alternate representatives in case your first choice is unable to serve or resigns.
The health care representative cannot overrule your decision to a change of care even if it conflicts with your advance directive — regardless of whether you remain legally capable of making that decision. The representative does, however, have the power to allow you to be admitted to a hospital for up to 18 days in order to get treatment for dangerous behavior that is caused by dementia, even if you object.
Who can witness an advance directive?
One witness can be related to you by blood, marriage or adoption. The other cannot, and that person also should not expect to inherit anything under the terms of your will or have any claim against your estate. That witness cannot be an owner, operator or employee of a health care facility where you are a patient or resident. And neither the health care representative, nor an alternate health care representative, can serve. You may not use your attending physician as a witness.
How long is an advance directive or health care appointment valid?
The document is effective from the date you sign it before a notary or two valid witnesses, and stays in effect until you die or revoke the document.
How can it be revoked?
You can revoke your end-of-life decisions at any time, regardless of your mental state or competency. Other matters may be revoked at any time so long as you are capable of making medical decisions. If you revoke the document, you can start it again or make a new one only by doing so in writing. You must be mentally competent to execute a new document.
Who can make an advance directive?
Any capable person over the age of 18 may make an advance directive at any time. Someone under18 can make an advance directive if the person is either legally emancipated or married.
May I draft my own forms?
Oregon law states that an advance directive and appointment of health care representative must be in a certain form. If you want your document to be valid, you must use the correct form. All health care organizations, including home health agencies, hospice programs, hospitals, long-term care facilities and health maintenance organizations have the forms and will provide them to you. You may find the form online but make sure it is the current form as outlined in the Oregon Revised Statutes and not an older version. A lawyer can prepare the form and help answer questions or concerns as you complete the form.
Some people make mistakes on their forms that may prevent the document from being legally binding. Even though forms with mistakes cannot necessarily be enforced, courts look at them as having expressed a person’s wishes and desires, and should allow them to be honored if they are sufficiently clear and there is no reason to doubt the person’s capacity to express those wishes at the time the form was signed.
Isn’t an advance directive the same as mercy killing?
No. Nothing in the statute condones, authorizes, or approves mercy killing or permits a deliberate act to end life. Instead, the advance directive permits the natural process of dying as provided by the laws if your preference is for no life support or no tube feeding. You express your choices; your health care representative must follow your wishes when you are incapable. Someone who actively ends your life may be guilty of a crime.
Won’t physicians be afraid to get involved with advance directives?
Designated health care representatives, health care providers and health care facilities who act in good faith and in accordance with the law are immune from criminal and civil liability.
Can insurance companies require policy holders to sign advance directives in order to get or retain medical insurance?
No. The advance directive does not affect the terms of any life or health insurance policies.
If there is no advance directive or appointment of health care representative, who will make end-of-life care decisions?
If an incapable person has no advance directive or health care representative, the attending physician can withdraw life support at the request of the following people: a guardian who is authorized to make health care decisions; a spouse; a majority of the adult children who can be located; either parent; a majority of the adult siblings of the principal who can be located with reasonable effort; or any adult relative or adult friend, or person nominated by any of the above named people. If none of these people are available, life-support may be withdrawn by the attending physician or attending health care provider. A duly authorized health care representative may make the decision to withdraw life-support only after consulting with family and close friends.