Meeting of Elder Law Section of the CBA
November 16, 2006
Co-Chairs:
Marcie McMinimee
John Campbell
Secretary:
Frank Slaninger
Treasurer:
Marco Chayet
Council Members:
Bert Myrin
Michele Lawonn
Elizabeth Tulloch
Liaison Coordinator:
John Campbell
CBA Liaison:
Gretchen Eoff
Representative to CBA Marcie McMinimee
Board of Governors
Uniform Trust Code Eric Solem
Committee
Denver
Denver
Denver
Denver
Aspen
Denver
Denver
Denver
Denver
Denver
303-534-5100
303-290-7497
303-758-5200
303-355-8500
970-925-8645
303-751-7012
303-388-3500
303-290-7497
303-860-1115
303-534-5100
Englewood
303-761-4900
The Executive Council Meeting of the Colorado Bar Association Elder Law Section was
called to order at 8:15 A.M. Bert Myrin was absent but will talk about adjunct members at a
later meeting. Several matters were discussed. There will be a division between actual
committees and delegates. The position of Liaison Coordinator will be abolished. Robert
Steenrod is drafting a statute regarding how and when a court can raise questions about a
fiduciary’s possible misconduct, remedies, and other matters that will affect guardians,
conservators, and trustees. Two areas of major change are public benefits and protecting
vulnerable persons. We have created several protective proceedings committees. See
Guardianship Standards Committee, Guardianship Jurisdiction Act Committee, Public
Guardianship Committee, and Fiduciary Misconduct Committee. Regarding the audit on
oversight of probate cases, Carl Glatstein and Denver Probate Judge C. Jean Stewart have started
a task force, and the state judicial department is drafting a mission statement.
1.
Call to Order and call for review and approval of October 2006
Minutes --- The meeting was called to order by Marcie McMinimee at
9:12 a.m.
The minutes with an amendment to correct the name in Old Business 2 (c) to read
Melissa Schwartz were approved.
Introductions followed, and the sign-in sheet was circulated. Those attending in person
or by phone were:
John Campbell
Richard Kautt
Mindy Chapman
Stanley Kent
Marco Chayet
Michael Kirtland
Page 1 of 10
Charles Connell
Clifton Kruse, Jr.
W. Dirk Costin
Michele Lawonn
Marvin Dansky
Jennifer Mauldin
Claire Dineen
Karen A. McDowell.
Gretchen Eoff
Marcie McMininee
Aaron Evans
Eileen Muench
Stewart Fleisher
Kathleen Negri
Jay Fox
Frank Slaninger
Nancy Germany
R. Eric Solem
M. Carl Glatstein.
D. Wayne Stewart
K. Gabriel Heiser
Tamra Waltemath
Marcie McMinimee stated the name “Melissa Schwartz” should replace the name” Melissa
Sugar” on page 3, Item 2 (c). With this amendment, they were approved.
2.
Treasurers Report– Marco Chayet reported we have $9,519.23 in our account.
3.
Old Business
a.
Committee Reports (Chairperson of the committee may report any current
matters). Our current committees are:
i.
Civic and Community Affairs Committee: Carl Glatstein – there was
no report in October, 2006. This committee will begin again soon to
raise funds and materials for the next Senior Law Day scheduled for
June 2, 2007. They will update some of the CBA brochures. Carl will
also work on a 2007 budget. A financial exploitation education
program is being conducted today in Ft. Collins. Past programs have
been presented in Adams County, Pueblo County, Boulder County, La
Plata County (Durango), and will soon be conducted in Jefferson and
El Paso counties.
ii.
Trust and Estate Council Liaison: Billie Castle – passed.
iii.
AARP Liaison: Elizabeth Tulloch –passed.
iv.
Department of Health Care Policy and Financing Liaison:
Campbell – passed.
v.
Guardianship Standards: Marco Chayet –passed. This will dovetail
into a new committee.
Page 2 of 10
John
vi.
CBA Legislative Policy Committee Liaison: Michele Lawonn – she
noted that an Elder Law attorney, Ellen Roberts, was elected as a state
representative to the Colorado legislature.
vii.
Guardianship Jurisdiction Act Committee: Kate Seal – passed.
viii.
CLE and Publication Committee: Jennifer Gormley – passed.
ix.
Uniform Trust Code Committee: Eric Solem – they met November
13, 2006 to discuss Colorado Estate Planning and Colorado Special
Needs proposals, and there will be a four hour conference meeting
December 6, 2006 beginning at 2:00 P.M. at the office of Dick
Hughes, 4155 E. Jewell Ave., Suite 500.
x.
Advance Directive Task Force: Michael Kirtland – passed with the
comment that the proposals were taken to the Department of Health,
the Ombudsman office, Elizabeth Kelly at the Hospice of St. John, and
others. The Focus on the Family group had no problems with it. They
are working with CPR directives.
xi.
Public Guardianship: Val Corzine – this involves a lot of work. Pat
Stannis is working to gather and collect information. The problem is
that there is little time to do it, and thee are no funds to pay a third
party to do the work.
xii.
Fiduciary Misconduct: Marcie McMinimee – Unlike court action to
review compensation under CRS § 15-12-721 which can be triggered
in three ways (court action after notice, motion, or petition), court
action to determine if assets are concealed or embezzled under CRS §
15-12-723 may occur after a complaint is filed in writing with the
court. Our goal is to establish procedures for judges to follow and to
seek a new statute setting forth when and how a court can initiate
action in these circumstances. Under CRS § 15-12-723, the court can
order a person to appear and submit to examination or answer
interrogatories, but the statute doesn’t give the court power to order the
person to produce documents. Marco Chayet commented that the 5th
Amendment and other criminal law safeguards may be involved if the
contempt sanction is imposed, since the person can go to jail.
You can file a complaint. Some courts require a pending case.
Consider the economic crimes unit of the D.A.’s office. Under CRS §
15-12-723, you can ask the court to bring in the person to answer
questions. The order can be specific, that if the person fails to appear,
the person may be subject to contempt and jail until he or she complies
with the order. Eric Solem feels the contempt is ineffective, and you
may be better advised to remove yourself from the probate case and try
to recover the money.
Page 3 of 10
b.
4.
Audit on oversight of probate cases – a task force is being assembled.
This was an audit ordered by the legislature and aimed at the courts.
New Business and Announcements
a.
BOARD OF GOVERNORS REPORT – Marcie McMinimee stated that
“Vote NO on 40” was successful, and the effort to impose term limits on
appellate judges was defeated in the election. $1.3 million was collected,
including $500,000 from the CBA, $444,000 from law firms, $90,000
from sections, $25,000 from the U. S. Chamber of Commerce. $950,000
was spent on the media campaign, and $104,000 was spent on staff.
Justice Eid said that all judges needed to stay neutral on this issue. He said
Colorado is the 4th largest “drug hub” in the country. It has 50% of the
illegal prior felons, more than any other state. They are arrested and
deported, but they come back. -------was cut by 30 positions. There are
only two officials patrolling the entire area south of Grand Junction. The
state of Colorado has the same amount of money for witness travel
expenses as does New York City.
b.
TOPICS AND SPEAKERS: Please continue to let the Co-Chairs know
your ideas for possible speakers and topics. The names and email
addresses for the Co-Chairs are:
Marcie McMinimee
(mmcminimee@steenrodlaw.com)
and
John
Campbell
(jcampbell@jjcelderlaw.com)
c.
CLEs and PROGRAMS
 Julie Gefke, Privacy Officer for Denver Department of Human
Services – “New Identification Requirements for Receipt of Public
Benefits – November 16, 2006
 Denver Dumb Friends League presents Estate Planning for Pets December 1, 2006
 The Probate Process from Start to Finish, and Advanced Probate:
Information, Ideas, and Legal Updates - December 18, 2006Advanced Probate:
Information, Ideas, and Legal Updates –
December, 19, 2006
 What to Do in Denver When You’re Dead or Divorced – December 8,
2006 (the program will include: acronyms used by estate and trust
lawyers; discussion of when a trust is property, its valuation, and
creation of new trusts; issues involving dead executors; luncheon
ethics talk; drafting and litigating marital agreements; technology
update; and annual case law update).
 Pulling the Plug: Clinical, Legal, and Ethical Lessons from Schiavo,
January 11-12, 2007
Page 4 of 10
5.
d.
December meeting date – to avoid holiday schedule conflicts, we will hold
our December, 2006 meeting one week early, on December 14, 2006. It
was moved and passed that we will have a party afterwards. There will be
no speaker on December 14, 2006.
e
Reorganization of subcommittees. At our last meeting we voted to
discontinue our Liaison Coordinator Committee. Beginning in December,
2006 we will combine and separate these committees. For example, we
will combine Guardianship Standards (v), Guardianship Jurisdiction Act
(vii), Public Guardian (xii), Fiduciary Misconduct (xiii), and matters
involving the future audit committee. The Fiduciary Misconduct
Committee actually operated through the Statutory Revisions Committee
whose members include Marcie McMinimee and Carl Glatstein. The
coordinators of the subcommittees are asked to report directly to their
section leaders.
Hot Topics Discussion
a.
Notice to .Creditors with disallowed claims in ,probate
Marcie
McMinimee reported that one court is requiring that creditors with
disallowed claims be given notice of the closing of the estate. The estate
is closed one year after the death of the decedent.
b.
Michele Lawonn reported a new e-mail scam purporting to be from Social
Security regarding “Cost of Living for 2007 Update.” It advises the
recipients that they need to give their social security number and other
confidential information. Another scam reported by another member
alleges the recipient missed jury duty and may be subject to penalties, and
asks the recipient to submit date of birth and social security number in
order to have the alleged mistake cleared up.
c.
It was proposed to have as a speaker someone to distinguish delayed
annuities from reverse mortgages, the “Financial Freedom” assertions that
include surrender fees over 18 years of 18%. Complaints may be filed
with the Colorado Department of Insurance. For purposes of a 1035
exchange, the purchase date is used for the purpose of annuities.
That ended our business meeting on November 16, 2006.
SPEAKER
Our speaker today was Julie Gefke, Privacy Officer for the Denver Department of Human
Services, and her topic was “New Identification Requirements for Receipt of Public Benefits.”
Julie Gefke is the Privacy Officer for the City and County of Denver. She earlier worked
with HCPF (Colorado’s Department of Health Care Policy and Financing) and before that, with
the U. S. Department of Justice.
Page 5 of 10
She titled her remarks as “Citizenship Identity Requirements for Those Seeking Medicaid
Benefits.” She handed out a chart tracing the laws and regulations, federal and state. Federal
law was the Deficit Reduction Act (DRA) and regulations, effective July 1, 2006. State law and
regulations came from Colorado House Bill 06S-1023, signed into law July 31, 2006. These two
are “strict.” There are “loose” federal rules for food stamps. See 10 CCR 2506-1, “Volume 4.”
Under DRA and 06S-1023, you must prove you are a U.S. citizen, and you are who you
say you are. You must deal with these laws separately. There is CBMS – “Colorado Benefits
Management System” which could be used to find all benefits one is entitled to receive. Now,
there are three tests to meet, and there is a lack of consistency. There is confusion when five
agencies put out regulations. Today, she will tell us “where Denver landed.”
The exemptions are more important than the rules. There are exemptions for Medicare
and for SSI. “Date” means the date received. DRA applies to Medicaid only and covers persons
of any age, but not qualified aliens. The State has decided to exempt foster and adoptive kids and
also newborns born to Medicaid Moms.
Needy newborns come under different definitions. Under DRA the Medicaid Mother
will continue to be covered, but an undocumented Mother will not. Denver follows the federal
rules and covers the Mother.
DRA requires two documents. You have ten (10) business days to provide them, based
on the CBMS. There is a window of 10 weeks during which the documents can be back dated.
1023 was signed into law July 31, 2006. To verify lawful presence in the United States, it
requires a new term “lawfully present” based on a Georgia law not effective until 2007. You
must be eighteen years of age or older. 1023 only applies to public benefits. Question: what
about federal grants and such programs as:
TANEF – Temporary Aid to Needy Families
ATB – Aid to the Blind
OAP –Old Age Pensions
LEAP – Low Income Energy Assistance Program
AND -- Aid to Needy Disabled
1023 requirements must also be met by 18-21 year olds receiving child welfare after care,
as foster parents, and adoptive parents. Those under 18 years of age, those on Medicare only,
and those receiving food stamps only are exempt.
1023 requires two steps. First, produce a document to prove lawful presence in the U.S.
Second, execute an affidavit stating he/she is a US citizen or a legal permanent resident or is
otherwise lawfully present in the US pursuant to federal law. The affidavit doesn’t have to be
signed in the presence of a witness or notarized. The affidavit is checked through the SAVE
program (federal Systematic Alien Verification of Entitlement) operated by the U.S. Department
of Homeland Security (formerly by INS). At present, it is operating approximately seven (7)
weeks behind.
Page 6 of 10
Not on the list of acceptable 1023 documents are birth certificates and passports. You
can’t get public benefits or a driver’s license with just a passport.
You may request a waiver if you don’t have all documentation. Send a person with the
documents you have to DMV, fill out the waiver form, and DMV will decide whether to grant
the waiver. The information will be in the DMV data base. The waiver expires in March, 2007.
No one has successfully navigated the waiver process in Denver County. Michael Cook,
Executive Director of the Colorado Department of Revenue, said 111 waivers have been granted
in Colorado. If it looks suspicious, DMV will keep all the information. DMV doesn’t release the
information, and Denver DHS and can’t act until it sees something on the DMV data base. A
DMV worker makes the decision.
We have a problem with the homeless population.
addressed to them at a homeless shelter.
.They may only have a letter
A person must come back to the Denver Department of Human Services after going to
DMV for a waiver, in order to complete an application for benefits.
DMV has no set rules. DMV has no appeal process, no governing board, only a
“frequently asked questions” section on its website, and these change. Rules change daily.
Passports aren’t accepted. ,Children may have problems proving their identity and need to
obtain a state ID. But if the Mother’s name on her driver’s license doesn’t match the name of the
mother on the birth certificate, DMV won’t grant the child an ID card.
The Colorado legislature says it plans to “fix” 1023 in 2007.
The meeting ended at 10:51 A.M.
November 16, 2006 Minutes
NOTES:
Aller v. Law Offices of Carole C. Schriefer, PC., 140 P.3d 23 (Colo.App. 2005)
Former client brought lawsuit against attorney and law firm based on alleged breach of
fiduciary duty. Alleged added fees were not quantified as costs. Noneconomic damages
can’t be recovered. 13-21-102.5(2) (b), CRS. 2004 unless plaintiff is subjected to an
unreasonable risk of harm. Those resulting solely from economic loss aren’t recoverable
in a legal malpractice action based on negligence. Some courts distinguish breach of
fiduciary claim and attorney negligence. This distinction is deficient when applied to
claims of malpractice based on negligence. Some law states breach of fiduciary duty
breach by an attorney is no different than attorney negligence. A certificate of review is
required (27, 28, 13-20-602)). Don’t distinguish when all that is alleged is an attorney's
breach of the standard of care, here allegedly making a decision based on professional
judgment. Limit damages in both attorney negligence cases and breach of fiduciary duty
cases. Special circumstances must be pleaded to show that a professional malpractice
breach of fiduciary claim is based upon something other than negligence.
Page 7 of 10
Denver Foundation v. Wells Fargo Bank, N.A., 140 P.3d 78 (Colo.App. 2005), cert. granted
08/14/2006
Trust residual beneficiary was a charitable foundation which changed its corporate
structure to allow it to act as trustee. Court said no. This would merge beneficial interest
with legal interest and terminate the trust. Change in corporate structure was insufficient
“change in circumstances” to justify change under either “cy pres” or “equitable
deviation” doctrines.
In re Marriage of Fiffe, 140 P.3d 160 (Colo. App. 2005)
Treat pre-nuptial agreement as another contract.
Cope v. Woznicki, 140 P.3d 239 (Colo. App. 2006)
In this complicated real estate dispute, garnishor was represented by attorneys at early
stages. Some settlements were negotiated.
Garnishor acted alone and obtained
$253,328.43 judgment against fellow D and client of the attorneys, the judgment debtor.
Attorney P was designated as witness and withdrew, filed and served notice of attorneys
lien via 12-5-119 and 12-5-120, CRS 2005 on opposing counsel and counsel for insurer
for $336,510.99. It attached to the $150,000 settlement. Case describes three scenarios
when lien attaches.
Page 241: “The garnishor cites no Colorado cases for this proposition.”
Monez v. Reinertson, 140 P.3d 242 (Colo. App. 2006)
1983 case by Eric Solem – need not exhaust administrative remedies unless deprivation
of rights was caused by random and unauthorized acts of individuals.
Hanson v. Colorado Department of Revenue, 140 P.3d 256 (Colo. App. 2006)
First impression – only corporate officers responsible for the corporation’s tax
compliance and who willfully fail to collect, account for, or pay taxes may be held
personally liable for the corporation’s unpaid taxes.
Ehrlich Feedlot, Inc. v. Oldenburg, 140 P.3d 265 (Colo. App. 2006)
P sued former attorneys for breach of fiduciary duty and civil theft. Breach of fiduciary
duty claim was dismissed because P didn’t file a certificate of review. P wasn’t entitled
to present evidence at trial of alleged civil theft by retention of client funds, where he
alleged only that the prior attorneys had retained legal documents in which he claimed he
had a possessory and proprietary interest, and civil theft issue was not tried by implied
consent.
Lattany v. Garcia, 140 P.3d 348 (Colo. App. 2006)
Motion to intervene, of right or by discretion, is discussed, and must be timely.
Attorneys fees “as costs” are ancillary to the case, are usually awarded after the litigation
has ended, 121-1-22(2), and orders regarding them are separately appealable.
Scheuner and Bailey, “A Legal and Practical Guide to the Disposition of Tangible Personal
Property at Death,” Probate & Property, May/June, 2006 page 66.
Ad for ABA Charitable Planning Seminar 12/05/06
Page 8 of 10
“The Pension Protection Act of 2006 includes many changes that affect charitable giving,
including incentives for lifetime gifts from IRAs (“Charitable IRA Rollover”), gifts from
Subchapter S Corporations and gifts of conservation easements. It also imposes new
restrictions on donor advised funds and supporting organizations. In addition to new
appraisal rules and restrictions on partial interests in art work and other types of gifts,
new records will be required to substantiate cash gifts under $250 beginning in 2007.
“Who Needs a Buy-Sell Agreement?”, Young Lawyers Network, Probate & Property, Nov/Dec.
2006, page 6
One page discussion. How to fund it – installment sale combined with insurance. Two
ways to structure it are (1) “entity purchase” (redemption method) (the business contracts
to purchase the interest of the departing, disabled, or deceased member each owner
promises to sell upon that triggering event, fund with life/and/or disability insurance,
business is named the beneficiary of the policy and pays the premiums, the business
receives the policy payout, which is used to meet the purchase obligation, and (2) “crosspurchase” method (contract between the owners themselves, each owns and pays
premiums on the other owners and is listed as the beneficiary – this is complicated).
Jones v. Flowers, 126 S. Ct. 1708 (2006)
State must take additional steps to notify owner of tax sale when notices sent by certified
mail are not delivered. For example, sending the notice by regular mail or posting the
notice on the front door of the house.
Annuities – especially “grantor retained annuity trusts” (GRATS) – are discussed in Probate &
Property, Nov/Dec., 2006.
GRAT – the grantor makes a completed gift of a remainder interest in trust property. If
he retains a “right to receive fixed amounts payable not less frequently than annually,”
the grantor will calculate the value of the retained interest using actuarial tables and an
assumed rate of return prescribed under Code 7520. The value of the remainder interest
for gift tax purposes equals the value of the entire property transferred to the trust less the
value of the retained annuity interest.
Dennis I. Belcher, and Dana G. Fitzsimons Jr., “Tax Planners – Beware of Patented Estate
Planning Techniques,” Probate & Property, Nov/Dec.., 2006, page 24
Since 1998 it is possible to patent tax reduction techniques. The U.S. Patent and
Trademark Office (USPTO) assigned “36T” as the subcategory for tax patents under
category “705,” the general category number for business methods. Check the USPTO
web site, at w.w.w. uspto.gov/patft/index.html fro patents classified as tax strategies and
search using the term “ccl/705/36T.” Since 1998 48 patents were granted and 81 more
tax method patents are pending. Get permission.
Michael Gilfix and Bernard A. Krooks, “Asset Preservation and Long-term Care, Probate &
Property, Nov/Dec., 2006, page 34
This discusses the Deficit Reduction Act of 2005, signed February 8, 2006. It creates
hardships for the elderly, particularly single women. The home has an “equity interest”
cap of $500,000. It treats annuities.
Page 9 of 10
John Jeffrey Pankauski and Robert E. Conner, “Looking for the Exits,” Probate & Property,
Nov./Dec., 2006, page 40.
A fiduciary’s sell strategy under the prudent investor act.
Burnell E. Steinmeyer Jr. and Todd D. Turner, “Second-Generation Planning – the Corporate
Division Alternative,” Probate & Property, Nov/Dec., 2006, page 48.
This discusses ways and taxes on passing down the family farm.
“What to do with the Body”, Probate & Property, Nov/Dec., 2006, page 55
Sample agreement, plus discussion of use of funeral director, embalmed, cremated,
burial, frozen, freeze-dried, where to dispose of cremains, kind of funeral service,
viewing or not, how much to spend for a casket, where burial is done, what grave
marker, etc. An irrevocable trust may be rescinded for mistake, here because it would not
result in the intended estate tax savings. Generaux v. Dobyns, 134 P.3d 983 (Or. Ct.
App. 2006)
Page 10 of 10