Brown v. MacDonald and Associates, LLC
Case #: A145659
Ortega, P.J. for the Court; Sercombe, J.; and Hadlock, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145659.pdf
Trusts and Estates: Proving a person is financially incapable under ORS 125.400 requires evidence that the risk of exploitation or bad financial management was caused by a person's lack of capacity.
Brown appealed a probate court’s rejection of his motion to terminate a conservatorship that was established in 2007 because he was deemed “financially incapable.” Brown is an elderly man who, with the help of his son (“Jeffery”), obtained a protective order against his second wife in 2006. Prior to that, Brown accumulated more than $210,000 in debt. In 2007 Brown married his third wife (“Beverly”), who had a criminal record including fraud, larceny, kidnapping, and identify theft. Jeffery was concerned and filed for a conservatorship. At the 2007 conservatorship hearing, the probate court found Brown was financially incapable and appointed Jeffery as financial conservator. Brown resisted the conservatorship and, in 2010, MacDonald & Associates were appointed as interim conservator. Brown and Beverly moved to terminate the conservatorship. After hearing conflicting testimonial evidence, the probate court denied the motion because nothing of consequence had changed since 2007. Brown argued the probate court erred by relying on the prior order of the conservatorship because the issue is current incapability of handling his financial affairs. MacDonald and Jeffery argued that plenty of evidence supported the probate court’s ruling. The Court of Appeals held that record was legally insufficient to support the probate court’s ruling because the “clear and convincing evidence” standard was not met by MacDonald and Jeffery. To prove Brown was "financially incapable" requires evidence that the risk of exploitation or bad financial management was caused by Brown’s lack of capacity. Reversed.