Meeting of Elder Law Section of the CBA
April 20, 2006
Co-Chairs:
Secretary:
Treasurer:
Council Members:
Liaison Coordinator:
CBA Liaison:
1.
Jennifer Gormley
Marcie McMinimee
Frank Slaninger
Melissa Sugar
Bert Myrin
Michele Lawonn
Marco Chayet
John Campbell
Gretchen Eoff
Centennial
Denver
Denver
Denver
Aspen
Denver
Denver
Denver
Denver
303-783-9600
303-534-5100
303-758-5200
303-873-7579
970-925-8645
303-751-7012
303-355-8500
303-290-7497
303-860-1115
The meeting was called to order by Jennifer Gormley at 9:13 a.m.
Introduction of members followed. The sign in sheet was circulated.
Those members attending in person or by telephone were:
Ellen Alires-Trujillo
Richard Hughes
Donald Alspaugh
Richard Kautt
John Archibold
Sue Kokinos
Baird Brown
Michele Lawonn
Susan Buchanan
Thomas Linn
John Campbell
Carol Mullins
Billie Castle
Bert Myrin
Mindy Chapman
Linda Phillips
Chuck Connell
Elaine Proctor
Valerie Corzine
Tom Rodriguez
Dirk W. Costin
Kathleen Schoen
Jerry Donley
Frank Slaninger
Henry Eastland
Carl Stevens
Gretchen Eoff
Wayne Stewart
M. Carl Glatstein
Elizabeth Tulloch
Jennifer Gormley
Clifton Venerable
Susan Halloran
Nancy Wallace
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Marilyn Henning
Tamra Waltermath
2.
Call for review of March 2006 Minutes – members were asked to review them,
and a vote to approve them will be taken later in the meeting.
3.
New Business and Announcements:
A.
Reminder:
Today is Law Student Day at the Bar – DU Law School
Students are attending meetings today and being introduced to the
Sections and Committees. Please welcome the students and attend the
reception at 3 p.m. today.
B.
Topics and Speakers:
 April: Topic: Medicare, Part D, speaker Crispin Sargent.
 May: Topic: financial exploitation by brokers and financial planners.
Speakers: David Mowatt, President of Mowatt Financial Services
Industries, and Nathaniel Kock, also of Mowatt Financial Services.
C.
Amendment of Bylaws re Board of Governors was presented to the
members, discussed, voted on, and passed.
D.
The following nominations for officers in the upcoming election were
made:
 Co-Chair – John Campbell
 Treasurer – Marco Chayet
 Secretary – Frank Slaninger
 At Large Member – Gabriel Heiser and Elizabeth Tulloch
E.
Carl Glatstein will be honored for his extensive pro bono work at a dinner
on May 19, 2006. Watch for fliers containing the details.
F.
Wayne Stewart arrived wearing a jacket and pewter medal attesting to his
participation and running in the Boston Marathon held on Monday, April
17, 2006. (Secretary note – Wayne looked fresh as a daisy and didn’t
comment whether he had filed his taxes on time.)
G.
We voted to approve non-attorney members in this way. Non-attorney
persons may attend our meetings, and they can learn from us and we can
learn from them. They will pay $10.00 per year and have no voting rights.
H.
The prior Minutes from 2003 to the present will be put on our website.
I.
There was an unfavorable editorial in the paper claiming that attorneys are
staging programs dealing with problems of the elderly solely to make
money. We will respond to it, and Wayne Stewart volunteered to write a
draft.
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J.
4.
Our Committee will promptly leave this room at 11:00 a.m. at the
conclusion of our meetings so that the following meeting by the Civic and
Community Affairs Committee can take place.
Hot Topics Discussion
A.
Competency of counsel in guardianship and mental health proceedings –
Val Corzine reported that Kathleen Mullen and other have expressed
concern over the mental health situation. In many regions of the state,
attorneys handling such cases are overburdened. One attorney had 950
cases. Some raised the questions, are mental health attorneys able to do a
good job of lawyering when they are overwhelmed? Are they able to
communicate and meet with clients? Are they doing a doing a good job,
even when they are winning their cases? Please send suggestions for any
changes by email. Val feels there is a need for an office and a staff. In
Louisiana there is a mental health advocacy office with an eighteen person
staff that serves the state. In guardianship proceedings there is a good
model in Colorado Springs which started mandatory training several
months ago. Professional fiduciaries may put be into a conflicted role. Val
Corzine will seek legislation which will have fiscal note. AARP, the
Disability Committee and others will cooperate. DU students can also
assist with the 50 hours they need to contribute as pro bono effort.
B.
Senior Law Day volunteers are needed – Carl Glatstein passed around a
sign-up list for volunteers. We need people to arrive “before dawn.”
Channel 9 and Cobar.org will have the Senior Law Day information.
C.
Legislation: SB 06-219 “Concerning an Administrative Reorganization of
Programs Administered by the State Department of Health Care Policy
and Financing” – a copy is posted on our Section website, all 431 pages –
Elizabeth Tulloch was not present to comment on this huge bill. The goal
is to move different functions into the proper departments. Some people
are in favor of it. Some people are opposed to it.
D.
New CPC Forms: 18; 18-AO; 49 – see State page Website – Frank
Slaninger handed out these forms at the meeting.
E.
Another handout- a list of twenty common nursing home problems – just a
list of the problems, no discussion, was distributed.
F.
A March, 2006 email from the ABA Ethics Department dealing with
problems that can occur when a lawyer dies. In summary, ethics
departments from several states were reviewed, together with
recommendations for proceeding and handling an estate of an attorney and
contacting clients and deciding the fate of files in ongoing legal matters.
G.
Another handout contained the following materials:
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1.
2.
3.
4.
5.
6.
An April 6, 2006, letter seeking an Oklahoma Attorney General
opinion whether the nationally recognized “Five Wishes” gives an
attending physician sufficient basis to rely upon it, whether it
constitutes fair and convincing evidence, whether it is in
substantially the form of the Oklahoma Advance Directive For
Health Care, and an opinion whether the Local Home Rights of the
Terminally Ill or Persistently Unconscious Act is unconstitutional.
Medicare Fact Sheet, March 19, 2006, stating that Medicare takes
steps to help people with limited incomes and resources to take
advantage of comprehensive Medicare drug coverage.
New Social Security rules for disability and disability
determination.
Legal Times article on April 13, 2006, that the U.S. Supreme Court
on Wednesday, April 19, 2006, adopted a historic rule change that
will allow lawyers to cite so-called unpublished opinions in federal
courts. Ruling can be cited that are issued on or after January 1,
2007. Courts can still give varying precedental weight to them just
as they do ruling from other circuits or other authorities, such as
law review articles, but they cannot stop attorneys from citing
them. One judge said that they were designated as “unpublished
opinions” because they were drafted “entirely” by law clerks and
staff attorneys.
The Denver Legal Center on Friday, April 14, 2006, filed suit in
the Denver District Court alleging that a community-centered
board and two state agencies unlawfully denied a person
developmental disability services and the proprietary right to a fair
hearing and due process.
Short article- -Why a Life “Settlement” Can Be Better Than
Surrendering An Insurance Policy. You can sell your insurance
policy to a third-party company. This company will take over for
the monthly fees and beneficiary status of your policy in exchange
for a lump sum payment directly to you, often close to the face
value.
5.
Committee Reports (Chairperson of the committee may report any current
matters) – All were passed.
6.
Approval of March 2006 Minutes – the March 2006 Minutes were approved with
the following correction: In the second to last paragraph on page 6, this sentence
will read – “The fair market value of the promissory note is irrelevant and is not
countable for Medicaid purposes.” The following sentence was deleted – “The
value is based on the payment due on the date of the Medicaid application.”
That ended our business meeting.
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SPEAKER
The speaker today was Crispin Sargent with CS AdvoCare, Inc. who spoke to us on Medicare
Part D.
Our speaker today can help people get through any changes in their lives. She went today
quickly through Medicare, Medicaid, Social Security, and in particular Part D of Medicare
dealing with prescription drugs which began in 2006. There were several pages of materials.
1.
Social Security:
Social Security began in 1935. Then, forty workers
supported each recipient. Now, three workers support each recipient. Benefits
today include retirement, disability, survivor, and medical benefits – Medicare
was added in 1965. Some groups, such as certain government workers and
railroad employees, are not eligible for Social Security because they have their
own system of benefits.
You must be eligible for Social Security to be eligible for Medicare. (There is an
exception in some school districts and government entities where employees
contribute to Medicare but not to Social Security.) To be eligible for Social
Security benefits, you must have forty quarters of earnings, earnings in four
quarters per year, $970 is earnings for one quarter, and $3,880 is earnings for four
quarters in 2006. You must apply for Social Security benefits by telephone, inoffice appointment, or you can apply over the Internet. Your “quarters” income
comes from your work, your spouse’s work, or the record of your ex-spouse.
You’re entitled to 100% of your benefits or 50% of your spouse’s, whichever is
higher. A surviving spouse also receives the higher benefit amount.
You can take early retirement Social Security benefits between the ages of 62 and
full retirement. In 2006 this age is 65 + 8 months. You can delay retirement until
age 70 and have an increase in the benefit formula. Full retirement will
eventually be age 67. The age at which you start affects both Social Security and
Medicare. If you start Social Security earlier, you will receive fewer benefits.
How much you receive depends on your life expectancy. If you live a short time,
your beneficiaries will not receive any part of it. The initial effective date for
Medicare is still the first day of the month in which you turn 65, or the first day of
the prior month if your birth date is the first day of the month.
If you retire before the age of 65 and need insurance, consider extending your
group health insurance under COBRA. If you continue working past the age of
65 and are covered under a group health insurance plan, you can delay enrolling
in Medicare until retirement and then enroll under an SEP (Special Enrollment
Period).
2.
Medicare:
You are eligible for Medicare in the first full month in which you
reach age 65. If you start Medicare at age 62, you will receive fewer benefits.
How much you receive depends on your life-expectancy. If you don’t live a long
time and get it all, your beneficiaries will not get it all. The last sheet of one set
of materials lists all the websites you may contact for information. There are
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three times to enroll for Medicare – the initial period, the special period, and the
general period. If you enroll during the general period, there will be a penalty.
Medicare Parts A and B became law in 1965. Part A is hospital coverage – you
pay no premium for coverage, but you pay $3.93 per month premium if you are
not covered under SSA or have not been covered under the Medicare system.
Medicare Part B is medical coverage – the current premium is $88.50 per month
and provides no coverage for out-patient prescriptions. You may want to consider
whether you want to buy insurance to cover things that Medicare does not.
Medicare Part B currently provides 80% coverage for services like doctor visits,
therapy charges and durable equipment. Make note that Medicare will cover an
ambulance ride to take you to the hospital, but only rarely will it pay for your
journey back home. The return trip is normally paid by the beneficiary.
Several different HMO, TSO, PPO and POS plans are listed. Part C of Medicare
“follows the money” – you’re either managed by Medicare or by one of these
companies. The same is true of Part D. Medicare will let a private insurance
company handle the prescriptions of Medicare while you are on Medicare.
Presently, eighteen companies operate in Colorado and they may decline in
number. Five years ago there were ten HMO plans; in 2006 only three survived.
3.
Medicare Drug Insurance Program, Medicare Part D: Part D was introduced
in 2003. Enrollment was in two parts, 2004-2005 and in 2006. The initial
enrollment period ends May 15, 2006. A problem emerging in 2006 is that
insurance companies and the government have no experience on which to base
their predictions. No one is certain if there will be a rumored 1% monthly delay
penalty; whether it will be forgiven; if the penalty is 7%, then 7% of what? All
that is known for sure is that seniors could end up carrying three cards in their
wallets – Medicare card, drug card, and supplemental medical card. Persons
should investigate Medicare, Part D, and supplemental insurance. One plan may
not cover all drugs or may have different limitations on the coverage. In general,
beneficiaries will be able to make plan changes on an annual basis. The one
disease exception is ESRD -“end-stage renal disease.” This diagnosis can cause
some difficulties in obtaining coverage after the initial enrollment period. You
must decide at the start what you are going to do. Further, an insulin pump and
other “hard goods” may be covered 100% or only 20% or less, depending on your
plan. (Secretary Note: United Healthcare is listed in the materials; ABC’s Good
Morning America reported during the week of April 17, 2006 that it had made a
lot of positive efforts to adjust the product it was offering.)
Do you need Part D prescription coverage? You probably don’t, if you have
prescription coverage through a retiree plan, PERA, or state or federal retiree
plan, or if you have VA or TRICARE prescription coverages. The government
wants to keep as much healthcare as possible under the arms of employers. If you
switch out of a retiree plan, it is likely you will not be able to get back in.
You need to be careful that you understand the consequences of your decisions.
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What are the positive benefits? More low income people will be eligible for extra
help from the Medicaid system. There will be catastrophic coverage by these
plans. What is negative? The computer programs to handle these plans were
designed by thirty year old computer geeks who think that all seniors have a
computer and know how to use it. It takes one to two hours to go through the
programs, and you must be able to use “split screens.”
What should be your approach? Go into a plan based on the drugs you are using
now, and maybe you can make changes later, either in the plan or by asking the
pharmacist to switch to generic drugs that are tolerated. Page 12 of the materials
lists several computer sites that can be used to compare different plans. All
figures are not the same on all sites. Humana has a good website, but you will
experience challenges reaching a live person. Other carriers are just experiencing
other start up problems. The system takes patience. It is just important to
remember that not everyone will get coverage for every drug, but that, in general,
we have seen very positive outcomes from the plans.
The meeting ended at 10:58 a.m.
NOTES:
10TH CIRCUIT - Eric Solem will be arguing one of the “waiting list” cases before the 10th
Circuit at 9:00 a.m. on May 10, 2006.
SUPREME COURT – MEDICAID – Arkansas Department of Health and Human Services v.
Ahlborn, 547 U.S. ---- (May 1, 2006) – state recovery from proceeds coming from settlement or
lawsuits of a Medicaid recipient is limited to payments for “medical care” from any third party.
§42 U.S.C. 1396k(a)1)(A) and 1396k(b). The state cannot demand full reimbursement of all its
costs. This position is supported by the anti-lien statute, § 42 U.S.C. 1396p.
(Secretary’s Note: parallel logic in Colorado Compensation Insurance Authority v. Jones, 131
P.3d 1074 (Colo. App. 2005) – the subrogation right of a workers’ compensation insurer extends
only to the employee’s right to recover economic damages from the tortfeasor; it does not
include every right of recovery that the employee has against the tortfeasor and does not extend
to the employee’s right to recover noneconomic damages.)
U.S. SAVINGS BONDS – it’s a good time to check if your bonds are so old they are no longer
earning interest at all. Among the bonds which just reached the end of their interest-earning
years are Series E and H bonds issued in early 1976 and Series HH bonds from early 1986. See
www.publicdebt.treas.gov/sav/savstop.htm. You can check the current rate, value and final
maturity of your old bonds by using an online tool at treasurydirect.gov. Enter the
“Individual/Personal” section and scroll to the bottom of the list. Click on “Price your savings
Bonds” and then “Savings Bond Calculator.” There’s also a downloadable “Savings Bond
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Wizard” program. Lost or destroyed savings bonds can be reissued. D. Post, WSJ Sunday,
04/30/2006, WSJ1.
CRIMES AGAINST THE ELDERLY – INTEREST IMPOSED – the defendant in Roberts v.
People, 130 P.3d 1005 (Colo. 2006) was a caregiver who diverted over $6,000 from an elderly
client. She was found guilty of theft from an at-risk adult, and restitution was ordered.
Restitution included pre-judgment interest. No specific pre-judgment interest rate is required. It
can be fashioned by the court, which here used the statutory eight per cent compounded
annually, found at §5-1-101 to 5-13-105 C.R.S. (2005) (page 1010). A separate statute requires
the trial court to impose post-judgment interest in addition to the restitution amount, §18-1.3603(4), C.R.S. (2005) at the rate of twelve per cent per annum until the order is paid in full.
Whether criminal or civil restitution is pursued, each is instructive to the other (1009). Footnote
5, page 1008: “…Post-judgment interest must be assessed at a rate of twelve per cent (per
annum), and trial courts have discretion to determine what rate of pre-judgment interest to
impose….”
DRUDGERY-FREE ESTATE PLANS – David Beckman and David Hirsch recommend West’s
“Drafting Wills and Trust Agreements” release 3.0 which came out in the fall of 2005. It is
under $900/year, regularly updated, and it stops working when the license expires. West has
help-line research attorneys, there is built-in analysis and help, it not only generates final
documents but also a document explaining why things were done the way they were. It was
described in the October 2005 ABA Journal at page 65. (The CBA should obtain one for its
members. It’s expensive.)
DISQUALIFICATION OF PROBATE COUNSEL – A paralegal of a law firm representing an
objector in a consolidated will and trust contest allegedly unlawfully by a ruse obtained a copy of
the purported trustee’s credit report. This was not sufficient grounds to disqualify counsel.
Violation of an ethical rule, in itself, is neither a necessary not a sufficient condition for the
serious sanction of disqualification of counsel. In re Estate of Myers, 130 P.3d 1023 (Colo.
2006).
FIDUCIARY & STATUTE OF LIMITATIONS – There is a long-standing rule that the statute
of limitations may not run for matters in which the parties are in a fiduciary relationship absent
repudiation of the relationship. An executor’s possession of land could not be adverse to an
estate beneficiary. In re Estate of Seifert, 26 Cal. Rapt. 3d 560 (Cal. Ct. App. 2005)
IRA & BANKRUPTCY – The Bankruptcy Act applies to bankruptcy petitions filed on or after
October 17, 2005. It expands, modernizes, and greatly clarifies the Code protections that apply
to a debtor’s retirement arrangements by adopting a broad federal exemption for retirement
funds. IRAs are exempt from the claims of creditors in bankruptcy. Rousey v. Jacoway, 125 S.
Ct. 1561 (2005).
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LOST WILL – “DUPLICATE ORIGINAL” – The statutory term “duplicate original” does not
include a photocopy that is not personally signed by the testator. Lauermann v. Superior Court,
26 Cal. Rptr. 3d 258 (Cal. Ct. App. 2005)
REVOCATION OF TRUST BY WILL – A revocable trust provided for revocation by a writing
signed by the settlor and delivered to the trustee/settlor. The settlor deeded real property to the
trustee. The settlor then executed a will revoking all prior wills and stating her intent to dispose
of all her property by will. This subsequent will complied with the trust provision for revocation
by a writing delivered to the trustee.
WITNESS SIGNS AFTER TESTATOR DIES – Under Arizona law based on UPC § 2-502, the
witnesses must sign the will “within a reasonable time” of having witnessed the testator’s signing
or acknowledgement of the will. This statute allows a witness to sign a will after the testator’s
death so long as the signature occurs within the prescribed reasonable time. In re Estate of
Jung, 109 P.3d 97 (Ariz. Ct. App. 2005). (Secretary Note: query, what would be the result in
Colorado if the will’s affidavit self-proving clause stated that the testator and the witnesses
witnessed each others’ signatures?)
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