While it might seem arbitrary as to what makes someone vulnerable, there are certain definitions and requirements under Oregon law that dictate exactly what a vulnerable person is. While this practice overlaps with my other specialties (like many other types of cases), vulnerable persons abuse might include a sex abuse case, a wrongful death care or representation of a crime victim. An example of a vulnerable person is a child, an elder or a person with developmental delays. It can be a convoluted, nuanced undertaking. Please read on for more specifics on vulnerable persons abuse. As this does relate to other types of cases I practice, you might want to peruse those questions as well.

Q
What is the legal definition of a vulnerable person?
AOregon Revised Statute (“ORS”) 124.100 dictates that a vulnerable person is:

  • an elderly person, ages 65 or older
  • a “financially incapable” person — as defined by ORS 125.005 as: “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.”
  • an “incapacitated” person — as defined by ORS 125.005 as: “a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety.”
  • 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
Q
What are the damages for abuse of a vulnerable person?
APer ORS 124.100, a vulnerable person who suffers injury, damage or death by reason of physical abuse may sue any person who has caused the abuse or who has permitted another person to engage in the abuse. The court shall award the following to a plaintiff who prevails in an action under this section:

  • An amount equal to three times all economic damages (“treble damages”), or $500, whichever is greater.
  • An amount equal to three times all non-economic damages.
  • Reasonable attorney fees incurred by the plaintiff.
  • 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.
Q
Can I sue the Oregon Department of Human Services?
AThe Department of Human Services (“DHS”) is a state governmental entity, and has certain requirements for pursuing a claim. You can sue DHS, and in most cases, a tort claim notice is needed to preserve that right to sue. I specifically pursue cases against DHS when a foster child in their legal custody has been abused, either by a biological parent, step-parent or foster parent.
Q
What is a tort claim notice?
AA tort claim notice typically must be sent when the liable party is a public body. Generally, it has to be sent within 180 days of the incident, though this differs when it is a wrongful death or under certain circumstances when the liable party is a governmental entity, such as DHS.

A tort claim notice is formal notice of a claim sent to the liable party, which preserves the right to sue. It itself is not a lawsuit, however. Sending one does not mean that you must file a lawsuit, either. If you fail to send the tort claim notice within the time frame under Oregon law, though, you lose any right to sue that entity.

The notice must contain:

  • a statement that a claim for damages is or will be asserted against the public body
  • a description of the time, place and circumstances giving rise to the claim, so far as known to the claimant; and
  • the name of the claimant and the mailing address to which correspondence for the claim may be sent.
Q
What if DHS wrongfully took away my children?
AThis is not the type of case I pursue against DHS. Depending on the circumstances of your case, I suggest you contact a juvenile dependency attorney or a family law attorney. If you are unable to find one, you may contact the Oregon State Bar Lawyer Referral Service at 503-684-3763.
Q
What is a conservator, fiduciary, guardian and guardian ad litem?
A
  • Conservator: a person appointed by the court to act on behalf of the vulnerable person, typically to manage their finances or make important decisions for them
  • Fiduciary: a guardian or conservator appointed by the court to assume duties, such as managing the vulnerable person’s money and other assets
  • Guardian: a person appointed by the court to act as a general guardian for the vulnerable person
  • Guardian ad litem: a person appointed by the court to act as a guardian for the vulnerable person, but only for a specific case; the duties of the guardian ad litem end when the case ends.

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