2016 Oregon Legislation to watch

I'm aware of three pieces of legislation that have been introduced during the Oregon Legislatures 2016 short session that relate directly to estate planning and end of life issues. The first is Revised Uniform Fiduciary Access to Digital Assets Act.   This act authorizes certain fiduciaries to access electronic communications and digital assets of certain persons or decedents.  

Proposed language includes:

SECTION 7.

If a deceased user consented to, or a court directs, disclosure of the con-

tents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives the custodian:

(1) A written request for disclosure in physical or electronic form;

(2) A certified copy of the death certificate of the user;

(3) A certified copy of the letter of appointment of the personal representative or a

small estate affidavit or court order;

(4) Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney or other record evidencing the user’s consent to disclosure of the content of electronic communications

Hopefully this will make it easier for Personal Representatives to manage the estate and digital assets of someone who has passed.

The second bill is SB 1552 relating to Advance Directives in Oregon.  This bill introduces a new advance directive form that will be valid in Oregon.  There are some changes in the language of the form that I think are important but I'm not sure what the practical change will be for Physicians and Patient's family during end-of-life discussions.

4. DIRECTIONS TO MY HEALTH CARE REPRESENTATIVE.

If you wish to give directions to your health care representative about your health care decisions, initial one of the following two statements:

___ My health care representative must follow my instructions unless my medical pro-vider says my instructions are not consistent with medical standards.

___ My instructions are guidelines for my health care representative to consider

when making decisions about my care, but my health care representative should use discretion as the health situation requires.

It is not clear to me what the practical effect of the phrase "unless my medical provider says my instructions are not consistent with medical standards" will be but at first blush it does seem to take some control away from the patient.

The last bill is HB 4102 updating and modernizing certain laws pertaining to intestacy, wills and estate administration.  The bill removes "issue" from the probate code and replaces it with "descendant." I can only assume this change was made because only probate attorneys use "issue" to mean descendants.

There is also some interesting language about lifetime gifts being treated as an advancement on an inheritance or devise.  Specifically the transfer of non-probate property and the effects it has on distributing the estate.

(3)(a) Property not subject to probate administration, the transfer of which is intended by the decedent to take effect on death, is treated as an advancement against the heir’s share of the estate or the devisee’s devise under the will if declared

in writing by the decedent, or acknowledged in writing by the heir or devisee, to be an advancement. Examples of transfers under this subsection include but are not limited to beneficiary designation, right of survivorship and transfer on death deed or transfer on death designation.

My thought is that as transfer on death deeds, beneficiary designations and other similar estate planning tools become more popular, the fights between family members will only increase if there is not a clear understanding of what was intended.  These transfers are only considered an advancement against an heir's share of the estate "if declared in writing by the decedent."  I doubt the fill in the blank wills are going to be able to take advantage of these non-probate transfers and still protect the decedent's intent.

As of right now none of these bills have been passed and undoubtedly there will be amendments if they are passed.  I will post updates if they do become law in Oregon.