Mutual Wills containing Last Will and Testaments for Man and Woman living together not Married with No Children
Note: This summary is not intended to be an all inclusive
discussion of the law of wills in Oregon, but does contain basic and other
provisions. A discussion of hand written wills is not included.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE OREGON REVISED STATUTES
ADVANCE DIRECTIVE
(§§ 127.505 through 127.660)
Definitions
An "advance directive" is a document that contains a health care instruction or a power of attorney for health care.
An "attorney-in-fact" or an "alternative attorney-in-fact" is an adult appointed to make health care decisions for a principal under a power of attorney for health care.
A "health care instruction" or "instruction" is a document executed by a principal to indicate the principal's instructions regarding health care decisions.
A "health care representative" is:
<blockquote>1. An attorney-in-fact;
2. A person who has authority to make health care decisions for a principal the provisions of § 127.635 (2) or (3); or
3. A guardian or other person, appointed by a court to make health care decisions for a principal.</blockquote>
A "power of attorney for health care" is a power of attorney document that authorizes an attorney-in-fact to make health care decisions for the principal when the principal is incapable.
127.510 Designation of attorney-in-fact; execution of health care instruction; duration. (1)
Designation of Attorney-In-Fact
A capable adult may designate a competent adult to serve as attorney-in-fact or alternative attorney-in-fact for health care. The alternative attorney-in-fact serves if the original designee is unavailable, unable or unwilling to serve as attorney-in-fact at any time after the power of attorney for health care is executed. The power of attorney for health care is effective when it is signed, witnessed and accepted as required by ORS 127.505 to 127.660 and 127.995. The attorney-in-fact so appointed can make health care decisions on behalf of the principal if the principal becomes incapable.
Execution
A capable adult may execute a health care instruction. The instruction shall be effective when it is signed and witnessed as required by ORS 127.505 to 127.660 and 127.995.
127.515 Manner of executing advance directive; forms; witnesses; directives executed out of state. (1)
An advance directive may be executed by a resident or nonresident adult of this state in the manner provided by ORS 127.505 to 127.660 and 127.995.
An advance directive must reflect the date of the principal's signature.
Form
A power of attorney for health care must be in the form provided by Part B of the advance directive form set forth in ORS 127.531, or must be in the form provided by ORS 127.530 (1991 Edition).
A health care instruction must be in the form provided by Part C of the advance directive form set forth in ORS 127.531, or must be in the form provided by ORS 127.610 (1991 Edition).
The form of an advance directive executed by an Oregon resident must be the same as the form set forth in §127.531 to be valid. In any place in the form that requires the initials of the principal, any mark by the principal is effective to indicate the principal's intent.
Oregon law does not authorize a health care representative or health care provider to withhold or withdraw life sustaining procedures or artificially administered nutrition and hydration in any situation if the principal manifests an objection to the health care decision. If the principal objects to such a health care decision, the health care provider shall proceed as though the principal were capable for the purposes of the health care decision objected to.
An instrument that would be a valid advance directive except that the instrument is not a form described in ORS 127.515, has expired, is not properly witnessed or otherwise fails to meet the formal requirements the statutes constitutes evidence of the patient's desires and interests.
Witnesses
To be valid, an advance directive must be witnessed by at least two adults as follows:
<blockquote>1. Each witness must witness either the signing of the instrument by the principal or the principal's acknowledgment of the signature of the principal.
2. Each witness must make the written declaration as set forth in the statutory form
3. One of the witnesses must be a person who is not:
<blockquote>a. A relative of the principal by blood, marriage or adoption;
b. A person who at the time the advance directive is signed would be entitled to any portion of the estate of the principal upon death under any will or by operation of law; or
c. An owner, operator or manager of a health care facility where the principal is a patient or resident.</blockquote>
4. The attorney-in-fact for health care or alternative attorney-in-fact may not be a witness.
5. The principal's attending physician at the time the advance directive is signed may not be a witness.
6. If the principal is a patient in a long term care facility at the time the advance directive is executed, one of the witnesses must be an individual designated by the facility and having any qualifications that may be specified by the Department of Human Services by rule.
7. An advance directive executed by an adult who at the time of execution resided in another state, in compliance with the formalities of execution required by the laws of that state, the laws of the state where the principal was located at the time of execution or the laws of the State of Oregon, is validly executed, subject to the laws of Oregon.</blockquote>
Limitations
Oregon law does not authorize an appointed health care representative to make a health care decision with respect to any of the following on behalf of the principal:
<blockquote>1. Admission to or retention in a health care facility for care or treatment of mental illness.
2. Convulsive treatment.
3. Psychosurgery.
4. Sterilization.
5. Abortion.
<blockquote>a. Withholding or withdrawing of a life sustaining procedure unless:
b. The appointed health care representative has been given authority to make decisions on withholding or withdrawing life sustaining procedures; or
c. The principal has been medically confirmed to be in one of the following conditions:
<blockquote>(i)A terminal condition.
(ii)Permanently unconscious.
(iii)A condition in which administration of life sustaining procedures would not benefit the principal's medical condition and would cause permanent and severe pain.
(iv)A progressive, debilitating illness that will be fatal and is in its advanced stages, and the principal is consistently and permanently unable to communicate, swallow food and water safely, care for the principal, and recognize the principal's family and other people, and there is no reasonable chance that the principal's underlying condition will improve.</blockquote>
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6. Withholding or withdrawing artificially administered nutrition and hydration, other than hyperalimentation, necessary to sustain life.</blockquote>
Revocation
An advance directive or a health care decision by a health care representative may:
<blockquote>1.If it involves the decision to withhold or withdraw life sustaining procedures or artificially administered nutrition and hydration, be revoked at any time and in any manner by which the principal is able to communicate the intent to revoke; or
2. Be revoked at any time and in any manner by a capable principal.<br />
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Revocation is effective upon communication by the principal to the attending physician or health care provider, or to the health care representative. If the communication is to the health care representative, and the principal is incapable and is under the care of a health care provider known to the representative, the health care representative must promptly inform the attending physician or health care provider of the revocation.<br />
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Execution of a valid power of attorney for health care revokes any prior power of attorney for health care. Unless the health care instruction provides otherwise, execution of a valid health care instruction revokes any prior health care instruction.<br />
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Unless the advance directive provides otherwise, the directions as to health care decisions in a valid advance directive supersede:<br />
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1. Any directions contained in a previous court appointment or advance directive; and<br />
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2. Any prior inconsistent expression of desires with respect to health care decisions.<br />
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Unless the power of attorney for health care provides otherwise, valid appointment of an attorney-in-fact for health care supersedes:<br />
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1. Any power of a guardian or other person appointed by a court to make health care decisions for the protected person; and<br />
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2. Any other prior appointment or designation of a health care representative.<br />
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Unless the power of attorney for health care expressly provides otherwise, a power of attorney for health care is suspended:<br />
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1. If both the attorney-in-fact and the alternative attorney-in-fact have withdrawn; or<br />
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2. If the power of attorney names the principal’s spouse as attorney-in-fact, a petition for dissolution or annulment of marriage is filed and the principal does not reaffirm the appointment in writing after the filing of the petition.<br />
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Any reinstatement of an advance directive must be in writing.<br />
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Conflicts Between Directives <br />
If the principal has both a valid health care instruction and a valid power of attorney for health care, and the directions reflected in those documents are inconsistent, the document last executed governs to the extent of the inconsistency.<br />
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