124.005 Definitions for ORS 124.005 to 124.040. As used in ORS 124.005 to 124.040:
(1) "Abuse" means one or more of the following:
(a) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury.
(b) Neglect that leads to physical harm through withholding of services necessary to maintain health and well-being.
(c) Abandonment, including desertion or willful forsaking of an elderly person or a person with a disability or the withdrawal or neglect of duties and obligations owed an elderly person or a person with a disability by a caregiver or other person.
(d) Willful infliction of physical pain or injury.
(e) Use of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person or person with a disability.
(f) Causing any sweepstakes promotion to be mailed to an elderly person or a person with a disability who had received sweepstakes promotional material in the United States mail, spent more than $500 in the preceding year on any sweepstakes promotions, or any combination of sweepstakes promotions from the same service, regardless of the identities of the originators of the sweepstakes promotion and who represented to the court that the person felt the need for the court's assistance to prevent the person from incurring further expense.
(g) Wrongfully taking or appropriating money or property, or knowingly subjecting an elderly person or person with a disability to alarm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the elderly person or person with a disability to believe that the threat will be carried out.
(h) Sexual contact with a nonconsenting elderly person or person with a disability or with an elderly person or person with a disability considered incapable of consenting to a sexual act as described in ORS 163.315. As used in this paragraph, "sexual contact" has the meaning given that term in ORS 163.305.
(2) "Elderly person" means any person 65 years of age or older who is not subject to the provisions of ORS 441.640 to 441.665.
(3) "Guardian petitioner" means a guardian or guardian ad litem for an elderly person or a person with a disability who files a petition under ORS 124.005 to 124.040 on behalf of the elderly person or person with a disability.
(4) "Interfere" means to interpose in a way that hinders or impedes.
(5) "Intimidate" means to compel or deter conduct by a threat.
(6) "Menace" means to act in a threatening manner.
(7) "Molest" means to annoy, disturb or persecute with hostile intent or injurious effect.
(8) "Person with a disability" means a person described in:
(a) ORS 410.040 (7)(b); or
(b) ORS 410.715.
(9) "Petitioner" means an elderly person or a person with a disability who files a petition under ORS 124.005 to 124.040.
(10) "Sweepstakes" means:
(a) A procedure for awarding a prize that is based on chance;
(b) A procedure in which a person is required to purchase anything, pay anything of value or make a donation as a condition of winning a prize or of receiving or obtaining information about a prize; or
(c) A procedure that is advertised in a way that creates a reasonable impression that a payment of anything of value, purchase of anything or making a donation is a condition of winning a prize or receiving or obtaining information about a prize.
(11) "Sweepstakes promotion" means an offer to participate in a sweepstakes. [1995 c.666 §§3,3a; 1999 c.738 §1; 1999 c.875 §6; 2003 c.257 §1a; 2003 c.264 §1; 2005 c.671 §1; 2007 c.70 §24]
REPORTING OF ABUSE OF ELDERLY PERSONS
124.050 Definitions for ORS 124.050 to 124.095. As used in ORS 124.050 to 124.095:
(1) "Abuse" means one or more of the following:
(a) Any physical injury to an elderly person caused by other than accidental means, or which appears to be at variance with the explanation given of the injury.
(b) Neglect.
(c) Abandonment, including desertion or willful forsaking of an elderly person or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.
(d) Willful infliction of physical pain or injury upon an elderly person.
(e) An act that constitutes a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.
(f) Verbal abuse.
(g) Financial exploitation.
(h) Sexual abuse.
(i) Involuntary seclusion of an elderly person for the convenience of a caregiver or to discipline the person.
(j) A wrongful use of a physical or chemical restraint of an elderly person, excluding an act of restraint prescribed by a licensed physician and any treatment activities that are consistent with an approved treatment plan or in connection with a court order.
(2) "Elderly person" means any person 65 years of age or older who is not subject to the provisions of ORS 441.640 to 441.665.
(3) "Facility" means:
(a) A long term care facility as that term is defined in ORS 442.015.
(b) A residential facility as that term is defined in ORS 443.400, including but not limited to an assisted living facility.
(c) An adult foster home as that term is defined in ORS 443.705.
(4) "Financial exploitation" means:
(a) Wrongfully taking the assets, funds or property belonging to or intended for the use of an elderly person or a person with a disability.
(b) Alarming an elderly person or a person with a disability by conveying a threat to wrongfully take or appropriate money or property of the person if the person would reasonably believe that the threat conveyed would be carried out.
(c) Misappropriating, misusing or transferring without authorization any money from any account held jointly or singly by an elderly person or a person with a disability.
(d) Failing to use the income or assets of an elderly person or a person with a disability effectively for the support and maintenance of the person.
(5) "Intimidation" means compelling or deterring conduct by threat.
(6) "Law enforcement agency" means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) Any district attorney.
(7) "Neglect" means:
(a) Failure to provide the care, supervision or services necessary to maintain the physical and mental health of an elderly person that may result in physical harm or significant emotional harm to the elderly person; or
(b) The failure of a caregiver to make a reasonable effort to protect an elderly person from abuse.
(8) "Person with a disability" means a person described in:
(a) ORS 410.040 (7)(b); or
(b) ORS 410.715.
(9) "Public or private official" means:
(a) Physician, naturopathic physician, osteopathic physician, chiropractor, physician assistant or podiatric physician and surgeon, including any intern or resident.
(b) Licensed practical nurse, registered nurse, nurse practitioner, nurse's aide, home health aide or employee of an in-home health service.
(c) Employee of the Department of Human Services or community developmental disabilities program.
(d) Employee of the Oregon Health Authority, county health department or community mental health program.
(e) Peace officer.
(f) Member of the clergy.
(g) Regulated social worker.
(h) Physical, speech or occupational therapist.
(i) Senior center employee.
(j) Information and referral or outreach worker.
(k) Licensed professional counselor or licensed marriage and family therapist.
(L) Any public official who comes in contact with elderly persons in the performance of the official's official duties.
(m) Firefighter or emergency medical technician.
(n) Psychologist.
(o) Provider of adult foster care or an employee of the provider.
(p) Audiologist.
(q) Speech-language pathologist.
(10) "Services" includes but is not limited to the provision of food, clothing, medicine, housing, medical services, assistance with bathing or personal hygiene or any other service essential to the well-being of an elderly person.
(11)(a) "Sexual abuse" means:
(A) Sexual contact with an elderly person who does not consent or is considered incapable of consenting to a sexual act under ORS 163.315;
(B) Sexual harassment, sexual exploitation or inappropriate exposure to sexually explicit material or language;
(C) Any sexual contact between an employee of a facility or paid caregiver and an elderly person served by the facility or caregiver;
(D) Any sexual contact between an elderly person and a relative of the elderly person other than a spouse; or
(E) Any sexual contact that is achieved through force, trickery, threat or coercion.
(b) "Sexual abuse" does not mean consensual sexual contact between an elderly person and a paid caregiver who is the spouse of the elderly person.
(12) "Sexual contact" has the meaning given that term in ORS 163.305.
(13) "Verbal abuse" means to threaten significant physical or emotional harm to an elderly person or a person with a disability through the use of:
(a) Derogatory or inappropriate names, insults, verbal assaults, profanity or ridicule; or
(b) Harassment, coercion, threats, intimidation, humiliation, mental cruelty or inappropriate sexual comments. [Formerly 410.610; 1999 c.463 §6; 2001 c.104 §36; 2005 c.671 §4; 2007 c.70 §29; 2009 c.442 §33; 2009 c.595 §84; 2009 c.708 §1; 2009 c.837 §9]
CIVIL ACTION FOR ABUSE OF VULNERABLE PERSON
124.100 Definitions for ORS 124.100 to 124.140; action authorized; relief; qualifications for bringing action; service on Attorney General. (1) As used in ORS 124.100 to 124.140:
(a) "Elderly person" means a person 65 years of age or older.
(b) "Financially incapable" has the meaning given that term in ORS 125.005.
(c) "Incapacitated" has the meaning given that term in ORS 125.005.
(d) "Person with a disability" means a person with a physical or mental impairment that:
(A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and
(B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.
(e) "Vulnerable person" means:
(A) An elderly person;
(B) A financially incapable person;
(C) An incapacitated person; or
(D) A person with a disability who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the person's physical or mental impairment.
(2) A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse. The court shall award the following to a plaintiff who prevails in an action under this section:
(a) An amount equal to three times all economic damages, as defined in ORS 31.710, resulting from the physical or financial abuse, or $500, whichever amount is greater.
(b) An amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical or financial abuse.
(c) Reasonable attorney fees incurred by the plaintiff.
(d) Reasonable fees for the services of a conservator or guardian ad litem incurred by reason of the litigation of a claim brought under this section.
(3) An action may be brought under this section only by:
(a) A vulnerable person;
(b) A guardian, conservator or attorney-in-fact for a vulnerable person;
(c) A personal representative for the estate of a decedent who was a vulnerable person at the time the cause of action arose; or
(d) A trustee for a trust on behalf of the trustor or the spouse of the trustor who is a vulnerable person.
(4) An action may be brought under this section only for physical abuse described in ORS 124.105 or for financial abuse described in ORS 124.110.
(5) An action may be brought under this section against a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.
(6) A person commencing an action under this section must serve a copy of the complaint on the Attorney General within 30 days after the action is commenced. [1995 c.671 §1; 1997 c.249 §41; 1999 c.305 §1; 2001 c.843 §3; 2003 c.211 §1; 2005 c.87 §1; 2005 c.386 §1a; 2007 c.70 §30]
124.105 Physical abuse subject to action. (1) An action may be brought under ORS 124.100 for physical abuse if the defendant engaged in conduct against a vulnerable person that would constitute any of the following:
(a) Assault, under the provisions of ORS 163.160, 163.165, 163.175 and 163.185.
(b) Menacing, under the provisions of ORS 163.190.
(c) Recklessly endangering another person, under the provisions of ORS 163.195.
(d) Criminal mistreatment, under the provisions of ORS 163.200 and 163.205.
(e) Rape, under the provisions of ORS 163.355, 163.365 and 163.375.
(f) Sodomy, under the provisions of ORS 163.385, 163.395 and 163.405.
(g) Unlawful sexual penetration, under the provisions of ORS 163.408 and 163.411.
(h) Sexual abuse, under the provisions of ORS 163.415, 163.425 and 163.427.
(i) Strangulation, under ORS 163.187.
(2) An action may be brought under ORS 124.100 for physical abuse if the defendant used any unreasonable physical constraint on the vulnerable person or subjected the vulnerable person to prolonged or continued deprivation of food or water.
(3) An action may be brought under ORS 124.100 for physical abuse if the defendant used a physical or chemical restraint, or psychotropic medication on the vulnerable person without an order from a physician licensed in the State of Oregon or under any of the following conditions:
(a) For the purpose of punishing the vulnerable person.
(b) For any purpose not consistent with the purposes authorized by a physician.
(c) For a period significantly beyond that for which the restraint or medication was authorized by a physician. [1995 c.671 §2; 2003 c.577 §4; 2005 c.386 §2]
124.110 Financial abuse subject to action. (1) An action may be brought under ORS 124.100 for financial abuse in the following circumstances:
(a) When a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person.
(b) When a vulnerable person requests that another person transfer to the vulnerable person any money or property that the other person holds or controls and that belongs to or is held in express trust, constructive trust or resulting trust for the vulnerable person, and the other person, without good cause, either continues to hold the money or property or fails to take reasonable steps to make the money or property readily available to the vulnerable person when:
(A) The ownership or control of the money or property was acquired in whole or in part by the other person or someone acting in concert with the other person from the vulnerable person; and
(B) The other person acts in bad faith, or knew or should have known of the right of the vulnerable person to have the money or property transferred as requested or otherwise made available to the vulnerable person.
(c) When a person has at any time engaged in conduct constituting a violation of a restraining order regarding sweepstakes that was issued under ORS 124.020.
(2) A transfer of money or property that is made for the purpose of qualifying a vulnerable person for Medicaid benefits or for any other state or federal assistance program, or the holding and exercise of control over money or property after such a transfer, does not constitute a wrongful taking or appropriation under subsection (1)(a) of this section or the holding of money or property without good cause for the purposes of subsection (1)(b) of this section. [1995 c.671 §3; 1999 c.305 §2; 1999 c.875 §8; 2005 c.386 §3]
124.115 Persons not subject to action. (1) Except as provided by subsection (2) of this section, an action under ORS 124.100 may not be brought against:
(a) Financial institutions, as defined by ORS 706.008;
(b) A health care facility, as defined in ORS 442.015;
(c) Any facility licensed or registered under ORS chapter 443; or
(d) Broker-dealers licensed under ORS 59.005 to 59.541.
(2) An action may be brought under ORS 124.100 against a person listed in subsection (1) of this section if:
(a) The person is convicted of one of the crimes specified in ORS 124.105 (1); or
(b) The person engages in conduct constituting financial abuse as described in ORS 124.110, and the person is convicted of a crime by reason of the conduct. [1995 c.671 §3a; 1997 c.631 §408; 1999 c.305 §3]
124.120 Relief available. The court may restrain and remedy the conduct described in ORS 124.105 and 124.110 by issuing appropriate orders including but not limited to:
(1) A judgment for the remedies provided by ORS 124.100.
(2) Restraining orders, temporary injunctions or other actions as the court deems proper, including the acceptance of satisfactory performance bonds, the creation of receiverships, the appointment of qualified receivers and the enforcement of constructive trusts.
(3) Ordering any person to divest direct or indirect interest or contact with any person or enterprise.
(4) Imposing reasonable restrictions, including permanent injunctions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor or conduct to the extent permitted by the Constitution of the United States and this state. [1995 c.671 §4]
124.125 Action by Attorney General, Department of Human Services or district attorney; investigative demands. (1) The Attorney General, the Department of Human Services or any district attorney may bring an action against any person who engages in conduct described in ORS 124.105 and 124.110. In addition to remedies otherwise provided in ORS 124.100 to 124.140, upon prevailing in the action, the court shall award to the Attorney General, Department of Human Services or district attorney costs of investigation and penalties. Penalties awarded under this section may not exceed $25,000 per occurrence.
(2) The Attorney General may intervene in any civil action brought under ORS 124.100 if the Attorney General certifies that, in the opinion of the Attorney General, the action is of general public importance. In the action, the state shall be entitled to the same relief as if the Attorney General instituted the action under the provisions of this section.
(3) When it appears that a person is engaging in conduct described in ORS 124.105 or 124.110, the Attorney General or any district attorney may execute in writing and cause to be served an investigative demand upon any person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation. The investigative demand shall require the person, under oath or otherwise, to appear and testify, to answer written interrogatories or to produce relevant documentary material or physical evidence for examination, at a reasonable time and place as stated in the investigative demand.
(4) At any time before the return date specified in an investigative demand, or within 20 days after the demand has been served, whichever period is shorter, a petition to extend the return date, or to modify or set aside the demand, stating good cause, including a request for privileged material, may be filed in the appropriate court.
(5) Service of an investigative demand under subsection (3) of this section shall be made personally within this state. If personal service within this state cannot be made, substituted service may be made by any of the following methods:
(a) Personal service outside of this state;
(b) Mailing the investigative demand by registered or certified mail to the last-known place of business, residence or abode within or outside of this state of the person for whom service is intended;
(c) As to any person other than a natural person, in the manner provided for service of summons in an action or suit; or
(d) Such service as the court may direct.
(6) If any person after being served with an investigative demand under subsection (3) of this section fails or refuses to obey an investigative demand issued by the Attorney General or a district attorney, the Attorney General or district attorney may, after notice to an appropriate court and after a hearing, request an order:
(a) Granting injunctive relief to restrain the person from engaging in conduct that is involved in the alleged or suspected violation; or
(b) Granting other relief as may be required, until the person obeys the investigative demand.
(7) Any disobedience of any final order of a court under subsection (6) of this section shall be punished as a contempt of court.
(8) ORS 192.550 to 192.595 apply to the disclosure of financial records by a financial institution pursuant to the service of an investigative demand under subsection (3) of this section. [1995 c.671 §5; 2003 c.265 §1]
124.130 Statute of limitation. An action under ORS 124.100 to 124.140 must be commenced within seven years after discovery of the conduct described in ORS 124.105 and 124.110 that gives rise to a cause of action under ORS 124.100 to 124.140. [1995 c.671 §6]
124.135 Remedies not exclusive. The remedies provided by ORS 124.100 to 124.140 are in addition to any other remedy, civil or criminal, that may be available under any other provision of law. [1995 c.671 §7]
124.140 Estoppel based on criminal conviction. A defendant convicted in any criminal proceeding of conduct that gives rise to a cause of action under ORS 124.100, whether the conviction results from a plea or verdict, is estopped from denying the conduct for purposes of an action under ORS 124.100 to 124.140. [1995 c.671 §8]
PENALTIES
124.990 Criminal penalty. A person who violates ORS 124.060 commits a Class A violation. [Formerly 410.990]