(SAMPLE — MOTION FOR APPROVAL OF SPENDING PLAN)

Department of Probate

IN THE MATTER OF THE )

CONSERVATORSHIP FOR: ) No. 0000-00000

)

(PROTECTED PERSON), ) MOTION FOR APPROVAL

) OF CONSERVATOR'S

Protected person. ) SPENDING PLAN AND

) AUTHORITY TO CHANGE

) NATURE OF TWO JOINT

) BANK ACCOUNTS

(Conservator), the conservator for (Protected Person,) moves this Court for an Order approving the Conservator's plan of spending assets of the Conservatorship and for an Order allowing the Conservator to change the nature of two jointly-held bank accounts. These motions are based upon the following facts and relevant law:

1. The conservator has filed its Inventory of the assets of the conservatorship estate. For the purposes of this motion, these assets can be divided into three distinct categories: (1) jointly-held accounts or accounts payable on death to a designated beneficiary; (2) assets specifically devised by the protected person's Will and (3) the remainder of the assets. A breakdown of assets by the above categories is attached as Exhibit A.

2. These categories of assets are important because they reflect upon the estate plan of the protected person. Therefore, the manner or order in which these assets are spent and used for the needs of the protected person will have an impact upon the interests of the heirs and beneficiaries of the protected person's estate.

3. The purposes of this motion are two-fold: first, to obtain this court's review and approval of the conservator's plan for spending conservatorship assets and, second, to provide notice of this plan and time for filing objections to all the persons and organizations who may have an interest in the estate plan of the protected person.

4. The estate plan of the protected person consists of (a) ( his/her) Will and (b) certain jointly-held bank accounts, an annuity and accounts payable on death to designated beneficiaries.

a. The Will. The Will of the protected person disposes of ( his/her) estate, upon death, as follows:

(INSERT RELEVANT WILL PROVISIONS)

A copy of the entire Will of (Protected person) is attached as Exhibit B to this Motion.

b. Joint and POD Accounts. In addition to the protected person's Will, he/she established, prior to (his/her) incapacity, various jointly-held bank accounts, an annuity with a designated beneficiary and a bank account payable on death (POD) to a designated beneficiary. As such, these accounts contain a right of survivorship interest in the joint owner or designated beneficiary. Pursuant to ORS 125.460, these accounts are to be considered part of the protected person's estate plan.

5. The protected person is receiving 24-hour in-home care and significant medical services. (His/her) care and medical needs cost approximately (insert cost) per month. This cost exceeds (his/her) income from social security and civil service pension totaling (insert income). Therefore, the conservator must utilize income and principal from the above assets to provide for the protected persons' continuing care. Depending upon (his/her) life expectancy, it is possible that a significant portion of the conservatorship' assets will be liquidated and used for the protected person's continuing care and medical needs.

D. Conservatorship Duties And Relevant Law

6. The following Oregon statutes and case law govern the conservator's duties to both expend funds for the support and care of the protected person and to protect ( his/her) estate plan.

a. ORS 125.425(2) provides that:

1. ORS 125.460 provides that:

c. A conservator does not have discretionary rights to a joint account and may not change the nature of the account. The conservator may, however, use the joint account funds for the essential care, support and maintenance of the ward. Strain v. Rossman, 47 Or.App. 57,614 P.2d 102 (Or. App. 1980); Elardo v. Carr, 118 Or. App. 407, 847 P.2d 892 (Or.App. 1993).

d. In relation to probate estates, ORS 116.133 provides that:

7. The conservator finds neither statute nor case law establishing an order for abatement (order for spending down) of conservatorship assets being used for the care needs and expenses of the protected person. However, since the conservator is charged to protect the estate plan of the protected person (ORS 126.460) and the order for abatement for probate estates is governed by statute (ORS 116.133), it appears consistent that the conservator should abate assets in the same order as a probate estate. Therefore, the appropriate order for spending by the conservator should be:

(a) SPENT FIRST - residuary assets;

(b) SPENT SECOND - specifically-devised assets; and

(c) SPENT LAST - jointly-held accounts, annuities with designated beneficiaries and accounts payable upon death to a designated beneficiary.

8. As stated above, it is possible that a significant portion of the conservatorship assets could be liquidated and used for the protected person's continuing care needs and expenses. Due to the nature of the conservatorship assets, the protected person's estate plan may be substantially affected by the spending plan of the Conservator. For this reason, the Conservator seeks approval of this Court, after notices to all interested parties, approving the following spending plan:

Assets of the estate will be spent in the following order:

a. Assets Comprising the "Residue" of the Estate - to be spent 1st. The conservator believes that the following assets comprise the residue of the estate and should be spent first by the conservator: (LIST ASSETS COMPRISING RESIDUE)

b. Assets specifically devised by Will - to be spent 2nd. The conservator believes that the following assets comprise the specific devises and should be spent second by the conservator, only when those assets comprising the "residue" of the estate, as set forth in paragraph a. above, have been fully exhausted: (LIST SPECIFIC BEQUESTS)

c. Jointly-held accounts or accounts payable upon death to a designated beneficiary - to be spent last. The conservator believes that the following assets comprise the jointly-held accounts or accounts payable upon death to a designated beneficiary and should be spent third by the conservator, only when those assets comprising the "residue" of the estate, as set forth in paragraph a. above, and those assets comprising the specific devisees, as set forth in paragraph b., above, have been fully exhausted:

(LIST JOINTLY-HELD AND ASSETS WITH DESIGNATED BENEFICIARY )

II. MOTION TO CHANGE CHARACTER OF TWO JOINT ACCOUNTS

9. The following bank accounts are jointly-held accounts:

(LIST ACCOUNTS)

As jointly-held accounts, it is difficult for the conservator to take sole possession of the accounts or to have complete control of these funds. For these reasons, the conservator requests an order of this court allowing the conservator to change the nature of these accounts from jointly-held accounts into accounts in the sole name of the conservatorship, but payable upon death to the joint owner. More specifically, the (DESCRIBE SPECIFIC CHANGES REQUESTED). In this fashion, the Conservator shall have sole and complete control of the account and the estate planning function of the account will be preserved.

10. The following persons named above shall be given notice of this motion:

(LIST ALL PARTIES ENTITLED TO NOTICE IN THE CONSERVATORSHIP AND THOSE INTERESTED IN THE ESTATE PLAN OF THE PROTECTED PERSON)

11. Notice to the above persons shall include a copy of this Motion, the proposed Order, attached exhibits and a notice allowing a period of 15 days in which to file objections, if any.

WHEREFORE, the Conservator moves for an order of the Court, as follows:

1. Approving the Conservator's spending plan as set forth in paragraph 6. above;

2. Allowing the Conservator to change the nature of the two jointly-held bank accounts as set forth in paragraph 7., above.

Dated this day of , 2004.