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In re Symons

Court of Appeals of Oregon

August 13, 2014

In the Matter of the Guardianship and Conservatorship of Phyllis M. Symons, a Protected Person. STATE OF OREGON, Long Term Care Ombudsman, Appellant,

Argued and Submitted September 6, 2013

Multnomah County Circuit Court. 020791261. Paula J. Kurshner, Judge.

Carolyn Alexander, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Matthew Whitman argued the cause and filed the brief for respondent Molly K. Smith.

No appearance for respondent Phyllis M. Symons.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.


Page 1171

[264 Or.App. 771] SCHUMAN, S. J.

This case involves the long term care of a protected person, Symons, who was moved by her guardian and conservator, Smith, from one care facility to another. When Smith refused to disclose the address of the facility to which she had moved Symons, the Long Term Care Ombudsman (LTCO) petitioned the circuit court for an order compelling Smith to provide the LTCO with that information. The LTCO maintained that it had not only the legal authority to visit Symons at that address, but a legal obligation to do so even if doing so caused Symons distress, until and unless Symons herself personally informed the LTCO that she did not want the visits. Smith, on the other hand, argued that she had a legal obligation to act in the best interest of Symons and that disclosing Symons's address would be contrary to that interest. The circuit court agreed with Smith and denied the petition. The LTCO appeals. We affirm.

Most of the facts are undisputed. Where a dispute exists, we accept the trial court's findings where there is evidence in the record to support them. Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or. 476, 489, 326 P.3d 1181 (2014). Symons suffered a stroke in 2002 at the age of 58. As a result, she is partially paralyzed, has a severely compromised ability to communicate, and is easily manipulated. When the events relevant to this litigation began, she was receiving long term adult foster care at a facility called Maria's Care Home. While there, she became dissatisfied with the relative then serving as her guardian and conservator. That relative was replaced by Smith, who is an attorney, a registered nurse, and a court-approved fiduciary. In February 2010, however, Symons (through counsel) filed an objection to Smith. While Symons, her attorney, the representatives of Maria's Care Home, and Smith attempted to reach an agreement, Symons appears to have vacillated between wanting to keep Smith as her guardian, to change guardians, and to remove the guardianship and conservatorship entirely. Ultimately, no new guardian was appointed. The LTCO nonetheless responded to some concerns that Symons had by invoking its obligation to open an investigation into the care she was [264 Or.App. 772] receiving. See ORS 441.109(1) (LTCO " shall * * * [i]nvestigate and resolve complaints made by or for residents of long term care facilities" ).[1]

On January 30, 2012, Smith--concerned about Symons's treatment at Maria's Care Home--moved Symons to another facility. Apparently, the transition was not smooth; a Department of Human Services representative concluded that Maria's Care Home interfered with Symons's transfer and caused her stress. Smith subsequently notified the court that the transfer had occurred. The notice did not disclose the address or name of the new facility, nor was it expressly required to; Smith did not send a copy of the notice to the LTCO, which she was required to do. ORS 125.320(3)(c)(B). The LTCO learned of the transfer independently and, in a letter to the court, explained that it needed Symons's address in order to complete its investigation of her treatment. Before the court could act, the LTCO filed a Petition to Disclose Protected Person's Information, seeking an order requiring Smith to reveal Symons's whereabouts.

At the hearing to address that petition, the deputy LTCO argued that, under the relevant statutes and rules, the LTCO has the

Page 1172

right of entry into adult foster care facilities and to interview residents in private regarding complaints, and, if the protected person did not want to communicate with the LTCO, that decision had to be communicated directly to the LTCO and not by an intermediary. Thus, the LTCO argued, the order to disclose Symons's whereabouts was necessary in order for the LTCO to perform its statutory obligations. Smith, in response, presented the court with a letter from Fisher, a psychologist who was acting [264 Or.App. 773] as the court-appointed visitor.[2] Fisher supported Smith's refusal to disclose Symons's location to the LTCO, noting that " [t]he ...

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