Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:32
I'm Steve Altishin, Director of Client Partnerships at Pacific Cascade Legal and I'm here with our Lead Family Law Attorney, Will Jones, to talk about how to get an elderly abuse protective order. Will, how're you doing today?
Will Jones 0:46
Not too bad, Steve. Still another cloudy day, raining of course. Welcome to the Pacific Northwest.
Steve Altishin 0:54
Yep, yep, you've just defined Oregon in a nutshell, which Oregon is very famous at producing. So before we get into the nuts and bolts of this, let's talk about what an elderly abuse restraining order is because it has more to do with just elderly people, doesn't it?
Will Jones 1:16
It does, it also protects people with disabilities, we should kind of set out at the outset. These restraining orders, I've always called them EPAPD restraining orders, elderly persons and people with disability. They're not that common. They do happen a lot. obviously Elder abuse is an issue. The more common restraining order is the FAPA, where someone's been physically abused, generally. I see a lot of those. These are a little bit more rare. But they do protect a different class of people. So they do fill a hole that the FAPA doesn't, right?
Steve Altishin 1:46
So what are the requirements of getting one?
Will Jones 1:49
So elderly persons, that one's pretty easy, 65 years of age or over. Finally, the law gives us a bright line. If you're over 65, I'm sorry. But legally in Oregon, you're considered elderly, right? It's the persons with disabilities that's a little bit more tricky. So generally, disabilities, we have, you know, the common ones kind of deal with physical or mental impairment that limits more major life activities. So pretty broad. So what fits in there, all kinds of stuff. And you can argue about that for days. Some of them are just very, very clear, a brain injury that results in some loss of function for a sufficient period of time. What's loss of function, what sufficient period of time again, pretty broad. I wish it was clear, but a lot of the cases we see at least on this part of the qualification, it's clear, there's a reason this person is labeled as disabled. Obviously, if someone has a guardian or a guardian ad litem, the court has already determined that they have a disability. That's why they have a guardian or guardian ad litem. That's someone that's assigned to help take care of some or all of their affairs. So the courts already made the determination that they're disabled. So a guardian or guardian ad litem can apply for whoever they're caring for. So those are the people who can get it.
Steve Altishin 3:03
What has to be done? Abuse can be defined differently in various different actions. And so in this particular case, what does abuse mean?
Will Jones 3:13
So abuse here, and obviously, this is a different realm than your standard FAPA. It's not just physical in this realm. So when you're talking about someone who's elderly, or who has a disability, abuse can take on all different kinds of forms, rather than abuse of someone you would see in a Fatcow. Right? So if you have someone with a disability, you could see and these are, some of them cause physical injury or pain, right? Obviously, that's abuse, it would be under fabric just like anything. So that's encompassed here. But you're talking about things like neglect, that results in harm. So someone has neglected someone who's elderly or disabled that causes them are abandoned neglect, desertion, so a caregiver just takes off could qualify under this assuming someone over 65 rooms disabled. Also encompassed in this is threats, calling an elderly or disabled person derogatory names cursing at you, inappropriate sexual comments, verbal abuse, that maybe threatens physical harm or sexual harm. Obviously, forcing someone who's elderly or disabled into non consensual sexual contact is underneath this one. And then kind of one of the bigger ones that we're seeing a little bit more brings in some interstate issues wrongfully took money or property from you. That one gets really weird. Specifically, when you're dealing in the age of scams, what's wrongful taking of money. There's a whole lot of scams out there. They really target the elderly, and mildly disabled who still have control of their funds to hand over money. So wrongful taking of money or property can be another big one. So, with all of that, assuming you prove one of those things, there has to be continued threat of further abuse. If those things happen. Yeah, you may have a civil claim for damages, that could happen. But the restraining order as it exists is meant to prevent further abuse, but can't do anything about prior abuses here. So you have to have a continued threat, immediate and present threat or danger of further abuse. Because this restraining order looks forward. It looks back to get the facts to get the order, but it looks forward. We're trying to protect someone moving forward.
Steve Altishin 5:23
Yeah. How long does it look back? Can someone come in and say, Well, you know, two years ago, my caregiver took all my money and then went to Vegas and didn't see her for three weeks.
Will Jones 5:34
So conceptually, it's 180 days. But things outside of that period and going all the way back are clearly relevant. So you got to have something that's more recent. But if you're talking about two years ago, you can go look, this is a pattern, this is continuing to happen. This happened five years ago, and hasn't happened since then the courts gonna go, what are we protecting from them? Something happened five years ago that you don't have that continued threat. So it's still relevant, although not within the time.
Steve Altishin 6:02
So how does someone obtain an EPAPD, because it's, you know, if someone is elderly or someone has disabilities, it can be kind of difficult for them to necessarily fulfill some of like, you know, going to the courthouse stuff.
Will Jones 6:25
So, courthouse, obviously, any circuit court can grant these forms are generally available online, although a little harder to find than the fact that restraining order forms, but they are available online. So there's a petition that you fill out that says, hey, here's who I am. Here's why I meet over 65 are disabled requirements can be filled out either by the person or their guardian, or household member for that matter. So file that in the circuit court at a proceeding called ex parte. What ex parte means is only one side appears right. So you don't have to bring the abuser in with you go to the court with your petition judge is going to review it maybe maybe not ask some questions depends on how individual judges handle their ex parte appearances. They're going to look at it and go does this or does not meet the requirements. If it does, the courts going to grant the order of sign it great. If the court looks at it and goes, Look, you're not over 65, and you're not disabled, sorry, denied. If it's denied, that's the understory doesn't mean he can't reapply. But the order has no effect. Even a granted order has no effect until it's served on the other party. So until they get the order, it has no effect. So you go you get the order you hang on to it, you run around you do whatever you do, if you never serve it on, it's never an effect. Service can be done through the sheriff, which is generally free in this realm, or it can be done via a private process server, the person who is the petitioner who filled out the order cannot serve it, right. Nor would you want to, you don't want to go to the person who's abusing you and go Don't abuse me anymore. But under law service can't happen by a party to the case. So once it's served, or is in effect, and you're off and rolling.
Steve Altishin 8:09
So this was kind of an interesting one. And my question is starts with, who can object? And what happens if they object? Because there's sort of a different person who can object that you wouldn't really think about in a normal protective order.
Will Jones 8:28
Well, these are a little bit different. Because in most restraining orders, specifically FAPA, stalking protective order as well, a hearing date isn't automatically set. For most of these it is you get the order and the judge sets a contested hearing date. So in other ones, you have to file a request for hearing most of the time. And these you do not can be a little bit county specific. So if you get served with one of these, make sure you look at it, the elderly or disabled person also has the right to appear. So if someone is say disabled, and their guardian goes ahead and gets the order for them against another person, the elderly or disabled person who's actually protected can check to the order as well, and say, no, no, I'm fine with this person wrongfully taking property from me. But it can't happen that way, where the person who is either elderly or disabled goes, I don't want the order. This person who got it for me thinks I need the order, and I don't. So it's kind of a little bit different than your standard facto, but a lot of the same principles and policies will still apply.
Steve Altishin 9:28
Yeah. So once that happens, if the judge says yes, your objection, I'm not going to-- I'm going to overrule it, I'm going to allow it to continue into effect. How long does it remain in effect?
Will Jones 9:39
A year. So 365 American days, it can be renewed though, so you can continue to deal with renewal after renewal, assuming you're timely within that renewal. Once it's dismissed, you'd have to reapply for the order.
Steve Altishin 9:52
Can that continue, or is there a limit on how many times you can do that?
Will Jones 9:59
Not really. In a legal fiction sense, but you can see factually, if you have the order, there's been no abuse after three, four or five renewals, a judge is gonna be pretty questionable going, why do I need to continue this order? You haven't had contact in five years? Do you even know where they are?
Steve Altishin 10:16
Yeah. So what happens if someone violates the order?
Will Jones 10:21
Automatic arrest. So, call the sheriff, the cops, whoever it is, is gonna pick them up as quick as they can. They're pretty busy these days, but they'll get over there, instant arrest, they go right to jail.
Steve Altishin 10:31
If they, I mean, since they automatically go to jail, does the district attorney need to then go forward to press criminal charges? Or can they do that? Or how does that kind of terminate? They don't just stay in jail with nothing happening today?
Will Jones 10:50
No they don't just keep them there forever, which would be nice. Really it can take two paths, depending on how criminal it is. Generally, what you see is contempt. Contempt is the willful violation of the court's order or judgment. So generally, you're going to see some manner of contempt penalty, eventually it becomes what's called punitive contempt. And punitive contempt can result in jail time. Now you're talking to criminal side that we need a DA to bring those charges so DEA could be involved. Or it could just be contempt, it could be just part of a release agreement. Kind of depends on how egregious we're talking about.
Steve Altishin 11:20
Got it. Well, that was incredibly informative. And thank you for sitting down to talk with us about, you know, how you get an elderly abuse protective order. So thankful you were here today because again, these are really not easy things to understand, but you make them sound easy, so thank you.
Will Jones 11:40
Happy to help, anytime.
Steve Altishin 11:42
You bet, and everyone else. Thank you for joining us. If anyone has any further questions, feel free to contact our firm. You can get connected with an attorney who can help you. Stay safe, stay happy, and be well.
Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.
