Bill Text: OR HB2570 | 2013 | Regular Session | Enrolled
Bill Title: Relating to compensation in protective proceedings.
Spectrum: Committee Bill
Status: (Passed) 2013-05-13 - Chapter 99, (2013 Laws): Effective date January 1, 2014. [HB2570 Detail]
Download: Oregon-2013-HB2570-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
House Bill 2570
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of House Interim 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
proceeding 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
Enrolled House Bill 2570 (HB 2570-A) Page 1
(b) Payment for services provided by an attorney who is hired
as a mediator for mediation 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 attorney when a request for court
approval and payment of attorney fees has been made relating 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 attorney 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 determining 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,
Enrolled House Bill 2570 (HB 2570-A) Page 2
whether or not the estate of the person subject to the protective
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. + }
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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
Enrolled House Bill 2570 (HB 2570-A) Page 3
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
Enrolled House Bill 2570 (HB 2570-A) Page 4
