HOUSE COMMITTEE ON JUDICIARY

 

 

February 27, 2003   Hearing Room 357

1:00 P.M.  Tapes 59 - 61  

 

MEMBERS PRESENT:            Rep. Max Williams, Chair

Rep. Robert Ackerman, Vice-Chair

Rep.  Gordon Anderson, Vice-Chair

Rep. Jeff Barker

Rep. Jerry Krummel

Rep. Greg Macpherson

Rep. Lane Shetterly

 

MEMBER EXCUSED:             Rep. Floyd Prozanski

 

STAFF PRESENT:                  Bill Joseph, Cousel

Nancy Massee, Committee Assistant

 

MEASURE/ISSUES HEARD:            Introduction of LC 1568, 3172, 3018, 3019

                                                HB 2150 Public Hearing

                                                HB 2155 Public Hearing

                                                HB 2156 Public Hearing

                                                HB 2342 Public Hearing

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 59, A

004

Chair Williams

Opens meeting at 1:10 p.m.  Explains four LC’s to be introduced as committee measures (EXHIBITS A-D).

INTRODUCTION OF MEASURES

006

Chair Williams

MOTION:  Moves LC's:  1568, 3172, 3018, 3019 BE INTRODUCED as committee bills.

 

 

VOTE:  6-0-3

EXCUSED:  3 - Anderson, Prozanksi, Shetterly

008

Chair Williams

Hearing no objection, declares the motion CARRIED.

010

Chair Williams

Opens public hearing on HB 2150.

HB 2150 PUBLIC HEARING

020

Bill Joseph

Committee Counsel.  Explains HB 2150 that specifies small estate procedures.

059

Richard Mills

Department of Human Services (DHS).  Gives overview of HB 2150, HB 2155, and HB 2156.  Clarifies HB 2150; supports HB 2150 and submits testimony (EXHIBIT E).  States that Section 3 should be deleted.

090

Chair Williams

Confirms Section 3 should be deleted.

175

Bruce Miller

Judicial Department. Agrees that Section 3 should be deleted. Supports HB 2150.

186

Geoff Bernhardt

Portland Attorney. Oregon State Bar, Elder Law Section. Submits testimony (EXHIBIT F) in opposition to HB 2150. Discusses how claims can be opened.

244

Rep. Shetterly

Asks about Section 2, is that where DHS is the affiant.

269

Bernhardt

Responds the court certifies the copy. The bill allows DHS to certify their own copies.

277

Rep. Krummel

Asks if a declaration is better than an affidavit.  Asks about the two- year limitation.

290

Mills

Explains that there is a two-year limitation when a creditor can request a court hearing if their claim has not been paid. Gives example of what could happen.

343

Rep. Shetterly

Ask how many cases a year does DHS file as the affiant.

361

Mills

Mr. Ryder says it is close to 75.

410

Bernhardt

Does not object to DHS certifying their own copies. Wants to streamline the process for families.

TAPE 60, A

029

Bernhardt

Says DHS indicated they are withdrawing section three which is agreeable to them.

035

Chair Williams

Asks Mr. Joseph to check with Division of State Lands (DSL).  Asks for an amendment to withdraw section three.

040

Kenneth Ryder

DHS. Gives example of request for a summary review of administration of an estate.

082

Bernhardt

Explains concerns about extending the two-year time limit for creditors’ claims.

094

Rep. Macpherson

Asks about allowing filing of an affidavit that would only run two years.

108

Bernhardt

Says it would be possible with additional drafting and an alternative of two years after the person’s death or a shorter but sufficient amount of time for DHS to file.

112

Ryder

Responds that two years from date of death or 6 to 9 months from date of filing small estate affidavit would be acceptable.

120

Chair Williams

Closes public hearing on HB 2150.  Opens public hearing on HB 2155.

HB 2155 PUBLIC HEARING

134

Bill Joseph

Committee Counsel. Explains HB 2155 that authorizes Department of Human Services (DHS) to bring action under certain conditions to recover amount of assistance paid to a public assistance recipient.

145

Richard Mills

DHS.  Submits testimony in support of HB 2155 (EXHIBIT G). Explains why this bill is needed.  

224

Vice Chair Ackerman

Asks how counterclaims are defended by DHS.

230

Mills

Responds that personal injury law is not his area of expertise.

253

Karl Goodwin

Assistant Attorney General, DOJ. Answers regarding issue preclusions; this does not impair the plaintiffs’ rights.  Allows DHS to bring action for the amount of medical expenses provided.  

285

Vice Chair Ackerman

Explains why he thinks the recipient might be precluded.  Raises the issue of counterclaims. 

304

Goodwin

Replies the other party would have to raise that defense against the plaintiff.

310

Vice Chair Ackerman

Asks if it is correct that when agency gives notice to the recipient and after six months if the recipient has not initiated action, the agency does that without anyone’s knowledge.

322

Goodwin

Answers that the department must give notice.

315

Rep. Jenson

Asks for clarification on the previous questions. Asks if there is a countersuit, what happens.

350

Rep. Shetterly

Asks about lines 10 and 11 of the bill.

TAPE 59, B

001

Ruth Simonis

Attorney and Co-chair of the Elder Law Legislative Subcommittee.  Opposes HB 2155. Explains why she does not support the bill as a whole. Agrees with parts of HB 2155 and submits testimony in opposition to HB 2155 (EXHIBIT H).

026

Vice Chair Ackerman

Asks about the department filing liens for recovery purposes.

032

Simonis

Replies the concern might gain more reimbursement by pursuing these claims.

038

Vice Chair Ackerman

Closes public hearing on HB 2155.  Opens public hearing on HB 2156.

HB 2156 PUBLIC HEARING

040

Richard Mills

DHS. Explains the necessity of HB 2156 which relates to public assistance; creating new provisions, and amending ORS 205.246, and submits testimony in support of the bill (EXHIBIT I).

087

Mills

Continues giving examples of public assistance recipients’ eligibility.

100

Kenneth Ryder

Estate Administrator, DHS. Discusses the -1 amendment, Exhibit I.  Explains concern for the change in the bill from “transfer” to “sale.”

135

Rep. Shetterly

Comments that most of these transactions would not go through a title company.

149

Mills

Comments it would not be enforceable.

163

Susan Ford Burns

Attorney, Oregon State Bar, Elder Law Section. Submits testimony in opposition to HB 2156 (EXHIBIT J). Explains areas of concern.  Says this bill will create a “hit list” for distressed property investors and loan companies.

210

Chair Williams

Points out that elder abuse issues are going to be dealt with through further legislation.

220

Burns

Points out problems that could occur with HB 2156.  Discusses weakening bargaining power and creating the “hit list.”

240

Geof Bernhardt

Attorney for elders. Adds that he is aware of DHS problems in administrating estates; concern is with the “cloud” on the property. Submits testimony in opposition to HB 2156 (EXHIBIT K).

295

Rep. Krummel

Asks position of DHS and title insurance. Asks about spending down by public assistance recipients and reinstatement of recipients.

303

Burns

Explains that historically the title company requests a written release from DHS.  There are then time extensions and increased costs.

330

Mills

Comments there is nothing for DHS to release; this bill requires notifying DHS.

366

Rep. Krummel

Asks if a public assistance recipient can be forced to sell their property.

392

Mills

Answers DHS cannot force a client to sell their property. Explains excluded resources, which means their home. Explains accountable resources, and how eligibility could be affected.

TAPE 60, B

020

Rep. Krummel

Reiterates in cases where the recipient cannot return to his home, and the family sells the property, the bill requests notice to DHS, is that right?

022

Mills

Responds, that is correct. Comments in response to a “hit list.” Points out that senior tax deferral lists are available to anyone at the county courthouse.

045

Bernhardt

Mentions protections of DHS in reporting value of assets by persons on public assistance.  

047

Mills

Responds about a client who is in over-resource.

092

Chair Williams

Closes public hearing on HB 2156.  Opens public hearing on HB 2342.

HB 2342 PUBLIC HEARING

103

Richard Mills

Department of Human Services (DHS). Explains HB 2342 that allows claim to be made against estate of decedent at any time after personal representative is appointed, and submits testimony in support of HB 2342 (EXHIBIT L).  Discusses possible amendments to HB 2342.

154

Bruce Miller

Office of the State Court Administrator.  Explains concerns with HB 2342.

177

Geoff Bernhardt

Attorney, Elder Law Section of Oregon State Bar. Explains how valid claims are sought in creditor claim period. Evidence, other than one’s word, of decedent’s wishes of disposal of property is needed. Opposes HB 2342 and submits testimony (EXHIBIT M).

239

Rep. Shetterly

Discusses what documentary evidence and testimony are sufficient. Suggests wording in the statute to include both kinds of evidence.

280

Mills

Asks to discuss the proposal with DOJ counsel.

290

Vice Chair Anderson

Asks what documents are used to support services.

312

Mills

Answers the records consist of microfiche lined items showing date and service payment, with a code number.

323

Chair Williams

Asks Mr. Mills if the document is easily decipherable.

322

Mills

Replies that the microfiche is not readily decipherable to the average person.  DHS creates an assistant summary to help clarify the records.

329

Mills

Gives examples when a deceased’s estate is opened more than two years after death. Having a two-year limit has cost the department money already. DHS often finds out after the fact that there are assets.

391

Bernhardt

States DHS knows when a recipient dies. 

436

Mills

Replies that DHS does not always know that a recipient has died.

TAPE 61, A

007

Bernhardt

Objects stretching out an additional two years beyond the present two years.

012

Mills

Explains the bill removes the two-year limitation. It doesn’t say creditors have two more years.

020

Chair Williams

Closes public hearing on HB 2342.  Adjourns meeting at 3:00 p.m.

 

 

EXHIBIT SUMMARY

 

A – LC 1568, staff, 42 pp

B – LC 3172, staff, 9 pp

C – LC 3018, staff, 3 pp

D – LC 3019, staff, 2 pp

E – HB 2150, written testimony, R. Mills, 3 pp

F – HB 2150, written testimony, G. Bernhardt, 1 p

G – HB 2155, written testimony, R. Mills, 3 pp

H – HB 2155, written testimony, R. Simonis, 1 p

I– HB 2156, written testimony, R. Mills, 3 pp

J – HB 2156, written testimony, S. Burns, 1 p

K – HB 2156, written testimony, G. Bernhardt, 1 p

L - HB 2342, written testimony, R. Mills, 3 pp

M – HB 2342, written testimony, G. Bernhardt, 2 pp