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In re Conservatorship of Brown

Court of Appeals of Oregon

December 26, 2013

In the Matter of the Conservatorship of Walter F. Brown, Incapacitated Person.
MACDONALD AND ASSOCIATES, LLC, interim Successor Conservator; WALTER F. BROWN and BEVERLY L. BROWN, Appellants, JEFFREY D. BROWN, former Conservator; and DAVID W. BROWN, Respondents.

Argued and submitted on August 29, 2013.

Clackamas County Circuit Court P0707042 Elizabeth Welch, Judge.

Margaret H. Leek Leiberan argued the cause for appellant Beverly L. Brown. With her on the briefs was Jensen & Leiberan. Appellant Walter F. Brown joined the opening brief pro se.

Ridgway K. Foley, Jr., argued the cause for respondents. With him on the answering brief were Gary M. St. Louis, Penny L. Davis, and Green & Markley, P.C.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


Walter Brown, a protected person, seeks reversal of the probate court's denial of his motion to terminate a conservatorship established under ORS 125.010.[1] In 2007, the probate court established the conservatorship after concluding that Brown was financially incapable under ORS 125.400. In 2010, Brown filed a motion to terminate the protective proceeding under ORS 125.090(1), contending that he was no longer financially incapable. He now challenges the denial of that motion, asserting four assignments of error. Because we conclude that the record was legally insufficient to support the probate court's conclusion that Brown continues to be financially incapable, we reverse, and do not address Brown's other assignments of error.

We begin with an overview of the relevant statutes. Pursuant to ORS 125.400, the probate court may appoint a conservator if the court finds by clear and convincing evidence that the respondent is "financially incapable." Once a conservatorship is established, the protected person may move to terminate it under ORS 125.090(1), which provides:

"A protected person is entitled to the same rights and procedures provided in the original proceedings when a motion to terminate the protective proceeding is filed and a fiduciary opposes the motion. The fiduciary has the burden of proving by clear and convincing evidence that a protected person continues to be incapacitated or financially incapable if a motion to terminate a protective proceeding is filed and the fiduciary opposes the motion."

(Emphasis added). ORS 125.005(3) provides the following definition:

"'Financially incapable' means 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. 'Manage financial resources' means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income."

Neither party has requested de novo review and the case does not appear to warrant it. See ORS 19.415(3)(b); ORAP 5.40(8)(c) (stating that we exercise de novo review only in "exceptional cases"). Accordingly, as in other equitable proceedings, "we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013) (stating our standard of review in juvenile dependency cases). "We are bound by the trial court's findings of fact that are supported by evidence in the record." State v. A. D. S., 258 Or.App. 44, 45, 308 P.3d 365 (2013) (citing ORS 19.415(3)(b)).

We state the following facts consistently with our standard of review and supplement with procedural facts as needed. Brown is an elderly gentleman. In 2006, Brown's son, Jeffrey Brown, helped Brown obtain a protective order against his second wife (now ex-wife) and began to assist Brown with his finances. Brown had failed to pay $100, 000 in federal and state taxes between 2000 and 2006 and also owed about $110, 000 on his credit cards, debts which Jeffrey assisted him in paying off. Brown accumulated significant additional debts during that time period.

In 2007, Brown married his third wife, Beverly. Jeffrey became concerned when he discovered that Beverly had a criminal record which included convictions for fraud, larceny, kidnapping, and identity theft, and ultimately filed a petition for conservatorship. Immediately after the original petition was filed, Brown deeded a large plot of land, worth about $800, ...

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