December 21, 2014

Learned Lawyer: Elisabeth Arenales Receives Colorado Medical Society Award

ArenalesThe Colorado Medical Society bestowed its “Tip of the Spear” award on Elisabeth Arenales at its annual meeting in Vail last week. Arenales is the Health Program Director for the Colorado Center on Law and Policy, where she focuses on public health insurance programs, including Medicaid, and works to preserve, protect, and expand access to healthcare for lower-income Coloradoans. She received the “Tip of the Spear” award for her creation of the Colorado Commission on Affordable Health Care. She had an idea to create a commission to study health care costs without becoming mired in politics. She approached Sen. Irene Aguilar and Sen. Ellen Roberts with her idea, and they helped gather the former members of the Colorado Blue Ribbon Commission on Healthcare Reform to address the issue. Arenales drafted SB 14-187, which passed with bipartisan support and was signed into law by the governor on May 29, 2014.

Arenales has received many awards in her distinguished career, including the Colorado Bar Association’s Donald Hoagland Award in 2000, which recognizes outstanding leaders in the development and implementation of pro bono representation; the CBA Jacob V. Schaetzel Award  in 2005, which honors attorneys or non-attorneys whose commitment, energy, and innovative approaches to the delivery of legal services serve as models for others in the community, for her work on the Taylor Ranch case; and the Colorado Lawyers Committee Award in 2004 for her work representing individuals in cases involving the state’s computer benefits system. Arenales also received the Colorado Health Foundation’s distinguished John K. Iglehart Award for Leadership in Health Policy this summer for her continuing efforts to ensure access to healthcare for lower-income Coloradoans. Other awards include the University of Colorado Law School Alumni Award for Distinguished Achievement, Trial Lawyer of the Year from Trial Lawyers for Public Justice, and the Community Health Leader designation from the Robert Wood Johnson Foundation.

Prior to her work at the Colorado Center on Law and Policy, Arenales was a staff attorney for the Colorado Lawyers Committee, and she worked for a year in the San Luis Valley organizing plaintiffs for the Taylor Ranch litigation. She is the Board Chair of the Colorado Consumer Health Initiative, and is also one of the founders of CCHI. She serves on the advisory committee for Colorado Covering Kids and Families, the advisory board of Medicaid Ombudsmen for Managed Care, and the advisory board of Family Voices Colorado. Arenales received her undergraduate degree, summa cum laude, from the University of Pennsylvania, and her law degree from the University of Colorado School of Law, where she was a member of the Order of the Coif.

Congratulations to Arenales for receiving the Tip of the Spear Award, and for her dedication to helping lower income Coloradoans access health care.

Denver DA Mitch Morrissey is Keynote Speaker at the 16th Annual Senior Law Day on July 19

Layout 1Denver District Attorney Mitch Morrissey is the keynote speaker for this year’s 16th Annual Denver Senior Law Day. As the chief prosecutor in Denver, he is responsible for the prosecution of more than 6,000 felony and 18,000 misdemeanor criminal cases every year, and is a staunch advocate for fraud prevention and education in the Denver community.

With incredible resources and educational workshops, this event is not only for seniors in the community, but also valuable for adult children and caregivers who are helping aging parents, relatives, or friends. The event is from 8:00 a.m. to 1:20 p.m. on Saturday, July 19 at the Denver Mart.

The 16th Annual Senior Law Day offers the public the opportunity to hear from experienced elder law attorneys and other professionals involved in elder care issues.  This year there are thirty-three unique, informative workshops to choose from that will help seniors learn how to better manage family and financial issues and prepare for retirement.

Workshops this year include “How Hospice and Palliative Care Can Save Your Life,” “Aging in Place – Maintaining Your Independence at Home,” “ Assisted Living and Nursing Home Issues,” “ Estate Planning: Wills, Trusts & Your Property,” “ Hanging Up the Car Keys for Good,” “ Living Wills, Advance Medical Directives, DNR Orders, Proxies, and End of Life Issues,” “Medicaid and Medicare 101,” “ Planning For Your Pets,” “Powers of Attorney and Guardianship & Conservatorship,” “ Social Security,” “To Marry or Not to Marry—That is the Question,” “ VA Benefits,” and “ What to do When Someone Dies.”

Attendees are also available to meet with an attorney at the “Ask-A-Lawyer” Session, a free 15-minute meeting with an attorney to ask about elder law and trust and estate issues. For more information on this and a full list of workshops, go to http://www.seniorlawday.org/denver.

Much of the content presented at Denver Senior Law Day also can be found in the comprehensive 2014 Senior Law Handbook, which is distributed free at the event. The Senior Law Handbook is supported through the generous contributions from organizations and law firms, including Rose Community Foundation—an organization that supports efforts to improve the quality of life throughout the Greater Denver community through its endowed grantmaking programs, and by advising and assisting donors who wish to make thoughtful charitable investments to better the community.

A $10 contribution is suggested but not required to attend the event. Registration is requested; call (303) 860-0608 or dial toll-free (888) 860-2531, or go online to register at  www.seniorlawday.org and click on the “Denver” tab. Business vendors and potential exhibitors should contact Sherrill Wolf at (303) 860-0608.

Full details on the event are available at  www.seniorlawday.org/denver.

Inherited IRAs in Light of the U.S. Supreme Court’s Decision in Clark v. Rameker

This post originally appeared on Barbara Cashman’s Denver Elder Law blog on June 18, 2014.

CashmanBy Barbara Cashman

Everyone knows what an IRA is – right?  We think IRAs have been around a really long time, but they only came into being in 1975 with ERISA legislation, and Roth IRAs came in 1997. IRAs are classic nonprobate property that someone can pass to others without probate in many circumstances.

Q: What happens if I complete the beneficiary designation form?

A: Your beneficiaries will have much more flexibility and protections (especially on the tax front).

Q: What happens if I don’t bother with the beneficiary form?

A: Well, you won’t be around to find out – right?!  Here’s a link to a Colorado Business Magazine article about the importance of designating a beneficiary to maintain that flexibility.

Some handy IRA vocabulary words:

  • RBD – required beginning date (701/2 years of age), after which you are required to withdraw the
  • RMD – required minimum distribution, an annual distribution.

Here it is important to consider whether the decedent died after his or her RBD.  If she or he was already receiving RMDs, you will want to determine whether the distribution for that final year needs to be paid. Be sure to check with the account custodians to determine if the distribution was made before the date of death.  There are two basic types of IRAs that can be passed along to survivors:

  1. Spousal IRA 
    This is generally the simplest to accomplish and a spouse will want to consider among several choices –  to roll them over into an IRA, start receiving benefits, have them paid out in a lump sum, or disclaim some portion to minimize estate taxes in the spouse’s estate.
  2. Inherited IRA
    There is an important distinction initially regarding whether the beneficiary designation was made out to the beneficiaries or left blank. . .  There is generally much more flexibility when the designations are completed.

So here’s a question . . . . Whether inherited IRAs are generally exempt from creditors depends on where you live! Are these funds still qualified and exempt, or are they just another inherited asset?

In an inherited IRA scenario, a beneficiary (often an adult child) will need to take out the RMD in the parent’s IRA every year and declare that as income. In addition, the IRA cannot be added to by the inheritor. You might be wondering what types of protections are afforded inherited IRAs from the creditors of the inheritor. Well, I can say with all lawyerlike confidence . . .  it depends. Under Colorado law, specifically Colo. Rev. Stat. § 13-54-102(1)(s), there is an exemption from judgment creditors for certain types of retirement accounts and benefits. The definition includes IRAs “as defined under Section 408 of the Code” (this would be 26 U.S.C. § 408(d)(3)(C)(ii)). Under the Bankruptcy Abuse Preventive and Consumer Protection Act of 2005 (BAPCPA), many states opted out of the federal bankruptcy exemptions in favor of state law exemptions. Read more on this topic here from my learned colleague Laurie Hunter.

It is important to consider that there are at least three different layers to the inherited IRA treatment: federal tax law, state law relating to bankruptcy and what creditors can collect, and bankruptcy. Until just a few days ago, when the U.S. Supreme Court ruled on a writ of certiorari on the U.S. Court of Appeals for the Seventh Circuit’s 2013 decision, In re Clark, there was a split among the federal circuit courts of appeal – you can read more about it here.

The Federal Circuit Courts of Appeal Were Split Over the Meaning of the Phrase “Retirement Funds”

Two federal courts of appeal – the Fifth and Seventh Circuits (whose decisions were binding in the regions that they cover – Colorado is part of the Tenth Circuit) had come to opposite conclusions while interpreting the meaning of the same term. In 2013, the Fifth Circuit decided that the phrase “retirement funds” in the bankruptcy exemption statute quoted above means any funds “set apart” in anticipation of “withdrawal from office, active service, or business” and that the statute does not limit “retirement funds” solely to funds of the bankrupt debtor, so long as the funds were originally “set apart” for someone’s retirement. In re Chilton, 674 F.3d 486 (5th Cir. 2012). Once the funds were set apart for retirement, they maintained that same character for bankruptcy exemption purposes. The court thereby permitted the debtor in Chilton to exempt all of a $170,000 IRA inherited from her mother.

In Clark, the Seventh Circuit expressly disagreed with the Fifth Circuit, adding that it “do[es] not think the question is close.” The Seventh Circuit observed that, while inherited IRAs do shelter money from taxes until it is withdrawn, they lack many of the other attributes of an IRA. That court noted in particular that the beneficiary of an inherited IRA is prohibited from rolling those funds over into his or her own IRA and from adding her own funds to the inherited IRA. The beneficiary must take distributions from the inherited IRA within a year of the original owner’s death and complete those payouts over a defined period, often as little as five years, regardless of the beneficiary’s age and employment status. In short, once the original owned died, “the money in the inherited IRA did not represent anyone’s retirement funds.” That court of appeals declined to extend the character of a decedent’s retirement funds into the inheritance context and therefore decedent’s daughter could not then use that money as her own retirement savings, and it became no different from an inherited certificate of deposit or money market account: non-exempt and available to distribute to the daughter’s creditors.  That was the essence of the split in the circuits.

Just a few days ago, the U.S. Supreme Court ruled unanimously in Clark v. Rameker that inherited IRAs are not protected in bankruptcy. Here’s a link to the SCOTUSblog coverage of the decision. The US Supreme Court followed the line of reasoning of the bankruptcy court and the Seventh Circuit, disallowing the attempt by petitioner in bankruptcy court, Hedi Heffron-Clark, to exclude the funds in the IRA from the bankruptcy estate using the “retirement funds” exemption under Section 522 of the Bankruptcy Code, which exempts tax-exempt retirement funds from a bankruptcy estate. Just in case you are an insomniac and want to read the entire decision, rendered June 12, 2014, here it is in pdf format.

I still think that, notwithstanding the U.S. Supreme Court’s ruling, inherited IRAs are  an important legacy for a parent to leave an adult child, and it is important to not underestimate the “emotional” value of the money from a deceased parent’s retirement savings for the use of a child’s retirement. But beware, they won’t be protected from an adult child’s creditors in a bankruptcy proceeding. So please remember that an IRA and an inherited IRA are not really the same animal!

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is the incoming chair of the Solo/Small Firm section. She contributes to the SOLOinCOLO blog and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Veterans Bills, Hepatitis C Bill, Marijuana Bills, and Many Others Signed by Governor

Though the General Assembly has adjourned for 2014, the governor continues to sign legislation. To date, the governor has signed 283 bills and vetoed two bills. He signed bills most days during the week of May 19, and signed veterans bills on Memorial Day – May 26, 2014. Some of these are summarized here.

Monday, May 19, 2014

  • SB 14-173 – Concerning the Recommendation that Certain Persons be Offered a Test for the Hepatitis C Virus, by Sens. Cheri Jahn & Steve King and Reps. Jonathan Singer & Frank McNulty. The bill recommends that health care providers offer a test to screen for hepatitis C to anyone born between 1945 and 1965.
  • SB 14-174 – Concerning the Creation of the Prosecution Fellowship Program, by Sens. Rollie Heath & Mike Johnston and Reps. Mike McLachlan & Dan Pabon. The bill provides a fund in the Department of Higher Education for fellowships for recent Colorado law school graduates to pursue careers as prosecutors in rural areas.

Tuesday, May 20, 2014

  • HB 14-1178 – Concerning a Sales and Use Tax Exemption for Qualified Property Used in Space Flight, and, In Connection Therewith, Making and Reducing Appropriations, by Reps. Mark Ferrandino & Brian DelGrosso and Sens. Mary Hodge & Kevin Grantham. The bill exempts qualified space flight personal property from sales and use tax.

Wednesday, May 21, 2014

  • SB 14-123 – Concerning the Authority of the Peace Officers Standards and Training Board, and, In Connection Therewith, Providing Additional Rule-Making Authority; Raising the Maximum Fee for Certification and Skills Exams; Allowing Awarding Grants to Nonprofit Organizations; Denying Certification for Municipal Violations; and Making an Appropriation, by Sen. Lucia Guzman and Rep. Daniel Kagan. The bill makes several adjustments to the rule-making authority of the Peace Officers Standards and Training Board and allows fee increases, denial of certification, and more.
  • SB 14-155 – Concerning Grant Funding for Medical Marijuana Health Effects Studies, by Sen. Pat Steadman and Reps. Jenise May & Crisanta Duran. The bill creates a grant program to fund scientific research on the use of marijuana as a part of medical treatment.
  • HB 14-1032 – Concerning the Provision of Defense Counsel to Juvenile Offenders, and, In Connection Therewith, Making and Reducing Appropriations, by Rep. Daniel Kagan and Sen. Lucia Guzman. The bill makes several changes to the procedures concerning providing defense counsel for juvenile offenders.
  • HB 14-1288 – Concerning Information Available Regarding Personal Belief Exemptions to Immunization Requirements for Children Prior to Attending School, by Rep. Dan Pabon and Sen. Irene Aguilar. The bill expands the requirements necessary for parents to waive the immunization requirement for their children prior to attending school.
  • HB 14-1361 – Concerning the Authority of the State Licensing Authority to Establish Equivalencies for Retail Marijuana Products, and, In Connection Therewith, Making an Appropriation, by Reps. Frank McNulty & Jonathan Singer and Sens. Lucia Guzman & Steve King. The bill requires the Department of Revenue to establish rules regarding the equivalency of marijuana flowers and marijuana concentrate by January 1, 2016.
  • HB 14-1366 – Concerning Reasonable Restrictions on the Sale of Edible Retail Marijuana Products, by Reps. Jonathan Singer & Frank McNulty and Sens. Mike Johnston & Steve King. The bill removes the requirement that marijuana flowers be sold in childproof packaging and maintains the requirement for edible marijuana products.

Thursday, May 22, 2014

  • SB 14-051 – Concerning Access to Records Relating to the Adoption of Children, and, In Connection Therewith, Making an Appropriation, by Sen. Lois Tochtrop and Rep. Lori Saine. The bill eliminates different standards for the release of adoption records, and generally seals those records from all but eligible recipients.
  • SB 14-118 – Concerning Improving Protections for Individuals with Disabilities, by Sen. Pat Steadman and Rep. Jovan Melton. The bill changes definitions to conform to the federal Americans with Disabilities Act and increases penalties for certain offenses.
  • HB 14-1042 – Concerning Access by Birth Parents to Records Relating to the Relinquishment of Parental Rights, and, in Connection Therewith, Making an Appropriation, by Rep. Lori Saine and Sen. Lois Tochtrop. The bill requires the custodian of records to release certain records to relinquishing birth parents at the time of relinquishment.
  • HB 14-1372 – Concerning Unauthorized Advertising for Adoption Purposes, by Reps. Kathleen Conti & Beth McCann and Sen. Vicki Marble. The bill prohibits advertising through a public medium for purposes of facilitating adoptions.

Monday, May 26, 2014

  • HB 14-1205 – Concerning the Veterans Assistance Grant Program, by Rep. Su Ryden and Sen. Larry Crowder. The bill creates the Veterans Assistance Grant Program, which will provide financial assistance to nonprofit organizations and governmental agencies providing services to improve the health and well-being of veterans in the state.
  • HB 14-1373 – Concerning Individuals Who May Claim the Property Tax Exemption for Qualifying Seniors and Disabled Veterans, by Reps. Steve Lebsock & Ray Scott and Sens. Larry Crowder & Rachel Zenzinger. The bill allows certain individuals to claim a property tax exemption when those individuals would not ordinarily be allowed to claim the exemption.

For a list of the governor’s legislative decisions, click here.

HB 14-1373: Extending State’s Homestead Exemption to Certain People Who Are Not Currently Eligible

On April 11, 2014, Reps. Steve Lebsock & Ray Scott and Sens. Larry Crowder & Rachel Zenzinger introduced HB 14-1373 – Concerning Individuals who May Claim the Property Tax Exemption for Qualifying Seniors and Disabled Veterans. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A senior who is 65 years old or older and has owned and occupied the same primary residence for at least 10 years or the surviving spouse of such a senior may claim a property tax exemption (exemption) for the primary residence in an amount equal to 50% of the first $200,000 of actual value. In addition, a disabled veteran who has a service-connected disability that the United States department of veterans affairs has rated as 100% permanent and total disability, but not the surviving spouse of such a veteran, may claim the exemption.

For property tax years commencing on or after January 1, 2015, the bill specifies that:

  • A senior who has received an exemption for his or her former primary residence but moved to a new primary residence after January 1, 2014, may continue to claim an exemption for his or her new primary residence if a natural disaster forced the move by destroying the former primary residence or otherwise rendering it uninhabitable. The surviving spouse of a deceased senior may also claim the exemption for his or her new primary residence if the deceased senior:
    1. Previously qualified for a property tax exemption for the new primary residence; or
    2. Would have qualified for a property tax exemption for the new primary residence if he or she had not died before the surviving spouse moved to the new primary residence.
  • The surviving spouse of a deceased disabled veteran who had received an exemption before his or her death may claim the exemption.

The bill was approved by the House on April 21. The Senate Finance and Appropriations Committees approved the bill on May 29 and 30 and was adopted on 2nd Reading by the full Senate on May 2.

Since this summary, the bill passed 3rd Reading in the Senate with no amendments and is on its way to the governor for action.

SB 14-207: Providing that Contributions to Pooled Trusts by Individuals 65 Years of Age or Older Are Not Transfers Without Fair Consideration for Purposes of Medicaid Eligibility

On April 17, 2014, Sen. Nancy Todd introduced SB 14-207 – Concerning Contributions to Pooled Trusts by Individuals Who Are 65 Years of Age or Older. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The transfer of assets by an individual who is 65 years of age or older to a pooled trust does not constitute a transfer without fair consideration. The department of health care policy and financing (department) shall not delay an individual’s eligibility for medical assistance or otherwise penalize an individual for entering into a joinder agreement, transfer agreement, or other agreement to transfer assets to a pooled trust so long as an actuarially sound spending plan is submitted with the agreement to the department or to a county department of social services that is responsible for acceptance of Medicaid applications.

The bill is assigned to the Finance Committee.

e-Legislative Report: April 28, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC did not meet on Friday, April 25.

At the Capitol—Week of April 21

A scorecard of the committee and floor work follows.

In the House

Monday, April 21

Passed on 3rd reading.

  • SB 14-123. Concerning the authority of the peace officers standards and training board, and, in connection therewith, providing additional rule-making authority; raising the maximum fee for certification and skills exams; allowing awarding grants to nonprofit organizations; denying certification for municipal violations; and making an appropriation. Vote: 36 yes, 26 no, and 3 excused.
  • SB 14-161. Concerning the modernization of provisions of the “Uniform Election Code of 1992” that ensure voter access for eligible electors, and, in connection therewith, reducing the deadline by which a voter registration application must be submitted via certain methods, altering procedures pertaining to national change-of-address searches, allowing emergency ballots to be obtained for nonmedical reasons, amending provisions relating to military and overseas voters, increasing the penalty for providing false residential information, making the aiding or abetting the provision of false residential information a new felony offense, and making and reducing appropriations. Vote: 42 yes, 20 no, and 3 excused.
  • HB 14-1357. Concerning in-home support services provided in the Medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 48 yes, 14 no, and 3 excused.
  • HB 14-1356. Concerning an increase in the Colorado oil and gas commission’s penalty authority, and, in connection therewith, making an appropriation. Vote: 40 yes, 22 no, and 3 excused.
  • HB 14-1373. Concerning individuals who may claim the property tax exemption for qualifying seniors and disabled veterans. Vote: 58 yes, 4 no, and 3 excused.
  • HB 14-1355. Concerning department of corrections reentry initiatives for successful reintegration of adult offenders into the community, and, in connection therewith, making an appropriation. Vote: 47 yes, 15 no, and 3 excused.
  • HB 14-1334. Concerning the petroleum cleanup and redevelopment fund. Vote: 50 yes, 12 no, and 3 excused.
  • HB 14-1311. Concerning the credit against the state income tax for the costs incurred in connection with the preservation of historic structures, and, in connection therewith, making and reducing appropriations. Vote: 50 yes, 12 no, and 3 excused.
  • HB 14-1368. Concerning the transition of youth ages eighteen through twenty-one who have intellectual and developmental disabilities to the adult program of services for persons with intellectual and developmental disabilities, and, in connection therewith, making and reducing appropriations. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1310. Concerning the provision of breath testing devices to law enforcement agencies. Vote: 55 yes, 7 no, and 3 excused.
  • HB 14-1361. Concerning the authority of the state licensing authority to establish equivalencies for retail marijuana products, and, in connection therewith, making an appropriation. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1358. Concerning continuation of in-home support services, and, in connection therewith, authorizing in-home support services for spinal cord injury waiver pilot program participants. Vote: 55 yes, 7 no, and 3 excused.
  • SB 14-154. Concerning funds administered by the division of fire prevention and control in the department of public safety. Vote: 62 yes, 0 no, and 3 excused.
  • SB 14-30. Concerning the fee charged to issue a special license plate to a person with a distinguished flying cross that was awarded for valor, and, in connection therewith, making an appropriation. Vote: 59 yes, 3 no, and 3 excused.
  • SB 14-51. Concerning access to records relating to the adoption of children, and, in connection therewith, making an appropriation. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1044. Concerning consequences for a parolee who tampers with an electronic monitoring device that the parolee is required to wear as a condition of parole. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1371. Concerning property taxation of oil and gas leaseholds and lands, and, in connection therewith, specifying that the wellhead is the point of valuation and taxation for such leaseholds and lands. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1353. Concerning powers of appointment. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1363. Concerning the nonsubstantive revision of statutes in the Colorado Revised Statutes, as amended, and, in connection therewith, amending or repealing obsolete, imperfect, and inoperative law to preserve the legislative intent, effect, and meaning of the law. Vote: 62 yes, 0 no, and 3 excused.
  • HB 14-1359. Concerning medication synchronization for patients who are prescribed multiple medications. Vote: 58 yes, 4 no, and 3 excused.
  • HB 14-1366. Concerning reasonable restrictions on the sale of edible retail marijuana products. Vote: 62 yes, 0 no, and 3 excused.

Tuesday, April 22

Passed 3rd Reading:

  • SB 14-92. Concerning the creation of the crime of insurance fraud, and, in connection therewith, making an appropriation. Vote: 65 yes and 0 no.
  • HB 14-1362. Concerning great-grandparent visitation with great grandchildren. Vote: 65 yes and 0 no.
  • SB 14-49. Concerning endangering public utility transmission, and, in connection therewith, making an appropriation. Vote: 64 yes and 1 no.

Thursday, April 24

Passed on 3rd reading.

  • HB 14-1383. Concerning the required number of physicians that must be provided to an injured employee for selection of a treating physician in workers’ compensation cases. Vote: 37 yes, 27 no, and 1 excused.
  • HCR 14-1002. Submitting to the registered electors of the state of Colorado an amendment to the Colorado constitution concerning the petition signatures required for a citizen initiated constitutional amendment, and, in connection therewith, requiring a portion of the petition signatures for the amendment be gathered from voters who reside in each Colorado congressional district, increasing the total number of petition signatures required for the amendment, and excluding the repeal of an amendment passed prior to 2015 from these petition signature requirements. Vote: 47 yes and 18 no.
  • HB 14-1372. Concerning unauthorized advertising for adoption purposes. Vote: 65 yes and 0 no.

Friday, April 25

Passed 3rd Reading:

  • HB 14-1360. Concerning the continuation of the regulation of home care agencies by the department of public health and environment, and, in connection therewith, implementing the recommendations of the 2013 sunset report by the department of regulatory agencies, as modified by the legislative sunset committee, and making an appropriation. Vote: 48 yes, 16 no, and 1 excused.
  • HB 14-1380. Concerning the Colorado coroners standards and training board, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • SB 14-117. Concerning the reauthorization of the regulation of real estate appraisers by the board of real estate appraisers through a recreation and reenactment of the relevant statutes incorporating no substantive amendments other than those approved during the first regular session of the 69th general assembly. Vote: 49 yes, 15 no, and 1 excused.
  • SB 14-129. Concerning changes to criminal provisions related to marijuana and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.

In the Senate

Monday, April 21

Passed on 3rd Reading:

  • HB 14-1321. Concerning the membership of the Colorado task force on drunk and impaired driving. Vote: 35 yes and 0 no.
  • HB 14-1003. Concerning the exemption from state income tax of income that is earned by a nonresident individual working temporarily in the state to assist with disaster emergency relief activities, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • HB 14-1034. Concerning the creation of a wine packaging permit to allow certain alcohol beverage licensees to package wine produced by another wine manufacturer, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1042. Concerning access by birth parents to records relating to the relinquishment of parental rights, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1228. Concerning the repeal of certain requirements for defensive driving schools attended in accordance with a court order resulting from a violation of a law regulating the operation of a motor vehicle, and, in connection therewith, reducing an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1339. Concerning the creation of the hazardous substance site response fund. Vote: 35 yes and 0 no.
  • SB 14-183. Concerning an increase in the maximum term of a business incentive agreement that a local government enters into with a taxpayer who pays business personal property tax. Vote: 34 yes and 0 no.
  • SB 14-181. Concerning the elimination of the use of automated vehicle identification systems for traffic law enforcement. Vote: 34 yes and 1 no.
  • HB 14-1045. Concerning the continuation of the breast and cervical cancer prevention and treatment program, and, in connection therewith, making and reducing appropriations. Vote: 29 yes and 6 no.
  • HB 14-1185. Concerning the issuance of travel insurance policies. Vote: 35 yes and 0 no.
  • HB 14-1207. Concerning the creation of the household medication take-back program, and, in connection therewith, making and reducing appropriations. Vote: 25 yes and 10 no.
  • HB 14-1006. Concerning the remittance of the marketing and promotion tax collected by lodging establishments in a local marketing district, and, in connection therewith, making and reducing appropriations. Vote: 33 yes and 2 no.

Tuesday, April 22

Passed on 3rd Reading:

  • SB 14-12. Concerning increasing the assistance payment for the program for aid to the needy disabled, and, in connection therewith, making and reducing appropriations. Vote: 22 yes and 13 no.
  • SB 14-14. Concerning the property-related expense assistance grants for low-income seniors and individuals with disabilities, and, in connection therewith, making and reducing appropriations. Vote: 21 yes and 14 no.
  • HB 14-1313. Concerning a requirement that the owner of a pet animal provide a valid rabies vaccination certificate prior to registering the animal with a county. Vote: 23 yes and 12 no.

Wednesday, April 23

Passed on 3rd Reading:

  • SB 14-186. Concerning the aggregation of efficiency projects in small communities in order to attract private sector investment through performance contracting. Vote: 23 yes and 12 no.
  • SB 14-184. Concerning oversight of the industrial hemp program. Vote: 35 yes and 0 no.
  • HB 14-1260. Concerning the creation of three mandatory minimum presumptive ranges for defendants convicted of a felony sex offense involving intrusion against a child who is under 12 years of age when the adult defendant is at least 10 years older that has one of the ranges starting at ten years as the minimum in the range, and, in connection therewith, creating an indeterminate lifetime sentence with a mandatory minimum presumptive range of 10 to 16 years for a class 4 felony; a mandatory minimum presumptive range of 18 to 32 years for a class 3 felony; and a mandatory minimum presumptive range of 24 to 48 years for a class 2 felony. Vote: 35 yes and 0 no.
  • HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties. Vote: 34 yes and 1 no.
  • HB 14-1280. Concerning limits on liability for agritourism. Vote: 35 yes and 0 no.
  • HB 14-1354. Concerning the ability of a county clerk and recorder to seek judicial review of final action by the secretary of state relating to elections. Vote: 31 yes and 4 no.
  • HB 14-1288. Concerning information available regarding personal belief exemptions to immunization requirements for children prior to attending school. Vote: 19 yes and 16 no.

Friday, April 25

Passed 3rd Reading:

  • HB 14-1347. Concerning statutorily established time periods that are multiples of seven days. Vote: 35 yes and 0 no.
  • HB 14-1344. Concerning the use of electronic means to document transactions related to the business of insurance. Vote: 35 yes and 0 no.
  • HB 14-1266. Concerning the penalties for certain value-based offenses, and, in connection therewith, reducing an appropriation. Vote: 35 yes and 0 no.
  • SB 14-194. Concerning the issuance of identification documents by the department of revenue, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1199. Concerning changes to the regulation of consumer goods service contracts, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. Vote: 35 yes and 0 no.
  • HB 14-1144. Concerning measures to improve the performance of district attorneys, and, in connection therewith, making and reducing appropriations. Vote: 33 yes and 2 no.
  • SB 14-3. Concerning child care assistance for working families, and, in connection therewith, making an appropriation. Vote: 19 yes and 16 no.
  • SB 14-176. Concerning crimes related to entities that trade in stolen vehicles, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-187. Concerning creation of the Colorado commission on affordable health care to analyze health care costs in Colorado, and, in connection therewith, making an appropriation. Vote: 23 yes and 12 no.
  • SB 14-164. Concerning aerial firefighting efforts through the division of fire prevention and control in the department of public safety, and, in connection therewith, implementing recommendations made by the division regarding the Colorado firefighting air corps. Vote: 35 yes and 0 no.

Stay tuned for 10 Bills of Interest.

Registration Still Open for 18th JD Fraud Prevention and Safety Summit

Registration is still open for the 18th Judicial District & AARP ElderWatch Fraud Prevention and Safety Summit. This free informative event will take place on May 15, 2014 at the Parker Arts, Culture, & Events Center. Registration is open through May 7, 2014. UPDATE: Registration extended until May 13, 2014. You can register by phone at (877)  926-8300 or click the link below. 

Click here to register

An informational flyer about the event is available here for download and is also reprinted below. Forward this information to friends, family, and coworkers – it will be a great event.

Summit Registration Flyer

Don’t miss this terrific informative event! Register today.

e-Legislative Report: April 14, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

Friday, April 11
At the request of the Juvenile Law Section, the LPC voted to oppose HB 14-1362. Concerning great grandparent visitation with great-grandchildren. The bill is sponsored by Rep. Dominick Moreno.

At the Capitol—Week of April 7

A scorecard of the committee and floor work follows.

In the House

Monday, April 7

Passed on 3rd reading.

  • HB 14-1013. Concerning the creation of the advanced industries workforce development program, and, in connection therewith, making and reducing appropriations. Vote: 37 yes, 27 no, and 1 excused.
  • HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1072. Concerning an income tax credit for child care expenses paid by a resident individual with a federal adjusted gross income of $25,000 or less, and, in connection therewith, making and reducing appropriations. Vote: 39 yes, 25 no, and 1 excused.
  • HB 14-1199. Concerning changes to the regulation of consumer goods service contracts, and, in connection therewith, making and reducing appropriations. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1203. Concerning funding to maintain the infrastructure for the digital trunked radio system, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1173. Concerning continuation of the controlled substances abuse act, and, in connection therewith, the treatment of controlled substances abuse and making an appropriation. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1283. Concerning modifications to the electronic prescription drug monitoring program, and, in connection therewith, making an appropriation. Vote: 42 yes, 22 no, and 1 excused.
  • HB 14-1009. Concerning changing the wildfire mitigation income tax deduction to the wildfire mitigation income tax credit, and in connection therewith, making and reducing appropriations. Vote: 52 yes, 12 no, and 1 excused.
  • HB 14-1029. Concerning a recodification of the laws governing reserved parking for persons with disabilities, and in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1278. Concerning continuation of the workers’ compensation accreditation program administered by the division of workers’ compensation, and, in connection therewith, implementing the recommendations of the 2013 sunset report by the department of regulatory agencies. Vote: 51 yes, 13 no, and 12 excused.
  • HB 14-1316. Concerning methods to determine whether disparities involving certain historically underutilized businesses exist within the state procurement process, and, in connection therewith, commissioning a study to make such determination, requiring the department of personnel to track contracts awarded to historically underutilized businesses, and making and reducing appropriations. Vote: 37 yes, 27 no, and 1 excused.
  • SB 14-27. Concerning criminal history background checks for professionals who have the authority to appear in court, and, in connection therewith, making an appropriation. Vote: 52 yes, 12 no, and 1 excused.
  • HB 14-1095. Concerning the Colorado bureau of investigation’s authority to investigate computer crime, and, in connection therewith, making an appropriation. Vote: 61 yes, 3 no, and 1 excused.
  • HB 14-1266. Concerning the penalties for certain value-based offenses, and, in connection therewith, reducing an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1011. Concerning the funding of advanced industry economic development programs. Vote: 39 yes, 25 no, and 1 excused.
  • HB 14-1014. Concerning modifications to the job growth incentive tax credit, and, in connection therewith, reducing an appropriation. Vote 51 yes, 13 no, and 1 excused.

Tuesday, April 8

Passed 3rd Reading:

  • HB 14-1273. Concerning human trafficking, and, in connection therewith, making and reducing appropriations. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1321. Concerning the membership of the Colorado task force on drunk and impaired driving. Vote: 64 yes, 0 no, and 1 excused.

Wednesday, April 9

Passed on 3rd reading.

  • HB 14-1330. Concerning an update of telecommunications terminology for intrastate telecommunications services. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1327. Concerning measures to expand the deployment of communication networks, and, in connection therewith, enacting the “Broadband Deployment Act.” Vote: 57 yes, 7 no, and 1 excused.
  • HB 14-1328. Concerning the deployment of broadband into unserved areas of Colorado through grant-making from moneys allocated from the Colorado high cost support mechanism, and, in connection therewith, making an appropriation. Vote: 47 yes, 17 no, and 1 excused.
  • HB 14-1127. Concerning disclosure of information for asset recovery, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1338. Concerning planning for the effective use of Colorado’s regional centers for persons with intellectual disabilities, and, in connection therewith, making an appropriation. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1211. Concerning ensuring access to quality complex rehabilitation technology in the medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 49 yes, 15 no, and 1 excused.

Thursday, April 10

Passed 3rd Reading:

  • HB 14-1354. Concerning the ability of a county clerk and recorder to seek judicial review of final action by the secretary of state relating to elections. Vote: 50 yes and 15 no.
  • HB 14-1159. Concerning a state sales and use tax exemption for components used in biogas production systems. Vote: 54 yes and 11 no.

Friday, April 11

No bills were heard on 3rd Reading.

In the Senate

Monday, April 7

No bills were heard on 3rd Reading.

Tuesday, April 8

Passed on 3rd Reading:

  • HB 14-1057. Concerning the Colorado fraud investigators unit. Vote: 30 yes and 5 no.
  • HB 14-1176. Concerning the state audit cycle of the emissions program for motor vehicles. Vote: 20 yes and 15 no.

Wednesday, April 9

Passed on 3rd Reading:

  • HB 14-1299. Concerning the repeal of the six-year limitation on applying a salvage brand to a motor vehicle whose cost of being repaired exceeds the value of the vehicle without the recent damage. Vote: 22 yes, 12 no, and 1 excused.

Thursday, April 10

No bills were heard on 3rd Reading.

Friday, April 11

No bills were heard on 3rd Reading.

Probate JDF Forms Revised in Protective Proceedings Category

In April 2014, the Colorado State Judicial Branch issued several revised forms in the Probate category. The revised forms deal with protective proceedings. The forms are available here in PDF format, and may be downloaded in Word format from State Judicial’s website.

PROBATE

  • JDF 847 - “Instructions for Filing a Petition for Appointment of Co-Guardian/Conservator or Successor Guardian/Conservator” (Revised 4/14)
  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (Revised 4/14)
  • JDF 821 – “Affidavit of Acceptance of Appointment by Written Instrument as Guardian for Minor” (Revised 4/14)
  • JDF 878 – “Order Appointing Conservator for Adult” (Revised 4/14)
  • JDF 882 – “Conservator’s Financial Plan with Inventory and Motion for Approval” (Revised 3/14)
  • JDF 960 – “Petition for Final Settlement” (Revised 4/14)
  • JDF 964 – “Order for Final Settlement” (Revised 4/14)

Click here to access all of State Judicial’s JDF forms.

Colorado Court of Appeals: No Fiduciary Duty Owed by Party to Real Estate Transaction so Attorney Fee Award Inappropriate

The Colorado Court of Appeals issued its opinion in In the Interest of Delluomo v. Cedarblade on Thursday, April 10, 2014.

Revocable Living Trust—Trustee—Beneficiary—Breach of Fiduciary Duty—Undue Influence—Attorney Fees—Breach of Trust Exception.

Respondent Phillip Delluomo created a revocable living trust. He named himself trustee and Wells Fargo Bank as co-trustee. The beneficiaries of the trust were his niece, appellant Brenda Cedarblade, and his nephew, Timothy Corcoran. A few months after the creation of the trust, Delluomo transferred five parcels of real property from the trust to Cedarblade.

The court thereafter appointed Janice Eder as Delluomo’s conservator. Eder initiated an action on Delluomo’s behalf to quiet title, seeking to set aside the real property transactions involving Cedarblade on the basis of undue influence and breach of fiduciary duty. A jury found that Cedarblade had exerted undue influence on Delluomo with regard to the conveyances of property into joint tenancy. Thus, the court set aside the property transfers to Cedarblade and awarded attorney fees to plaintiffs.

Cedarblade argued on appeal that the court erred in awarding attorney fees to plaintiffs. Cedarblade was not a trustee or custodian of funds (or other trust assets). Although she breached her duty as an individual, she did not breach any duty owed based on a relationship to manage property.

Because the circumstances of this case did not fit within the breach of trust exception to the general rule that parties in a lawsuit must pay their own legal expenses, the Court of Appeals ruled that the district court erred when it denied Cedarblade’s motion for directed verdict and allowed the jury to award attorney fees to plaintiffs. The portion of the judgment awarding attorney fees was vacated.

Summary and full case available here.

Bills to Allow Governments to Invest in Securities, Decriminalize Prohibited Practices by Lobbyists, Extend Duty to Warn, and More Signed by Governor

On Monday, April 7, 2014, Governor Hickenlooper signed 10 more bills into law. To date, he has signed 129 bills into law and vetoed two bills. The bills signed on Monday are summarized here.

  • SB 14-022 – Concerning Certified Community Development Financial Institutions, and, in Connection Therewith, Authorizing Such Institutions to Serve as a Qualified Holder and to Present a Request for Full or Partial Release of Collateral Pledged without Presentation of the Original Promissory Note, by Sen. John Kefalas and Rep. Rhonda Fields. The bill allows local governments to invest funds in certain securities offered by a community development financial institution.
  • SB 14-058Concerning High School Equivalency Examinations in Colorado, by Sen. Nancy Todd and Rep. Carole Murray. The bill changes the term “General Equivalency Diploma” or “GED” to “High School Equivalency Examination.”
  • SB 14-098 – Concerning Clarifications to Statutory Language on Crimes Against At-Risk Elders, by Sen. Rachel Zenzinger and Reps. Mike Foote & Sue Schafer. The bill clarifies statutory language regarding crimes against at-risk elders.
  • SB 14-109 – Concerning the Use of the Prevention, Early Detection, and Treatment Fund, and, in Connection Therewith, Eliminating the Annual Transfer of Two Million Dollars from the Fund to the Department of Health Care Policy and Financing for Medicaid Disease Management and Treatment Programs that Address Cancer, Heart Disease, and Lung Disease or Risk Factors Associated with Those Diseases and Increasing the Amount Annually Appropriated from the Fund to the Prevention Services Division of the Department of Public Health and Environment for the Cancer, Cardiovascular Disease, and Chronic Pulmonary Disease Prevention, Early Detection, and Treatment Program by Two Million Dollars, by the Joint Budget Committee. The bill eliminates an appropriation of $2 million that was to be used for disease management and treatment programs because no such programs were created.
  • SB 14-110Concerning the General Assembly’s Development of Recommendations Regarding New Methods of Financing the State’s Ongoing Capital Construction Needs, by the Joint Budget Committee. The bill changes the deadline for a report containing recommendations for new methods of financing the state’s ongoing capital construction.
  • SB 14-119Concerning the Decriminalization of Certain Prohibited Practices by Persons Engaged in Lobbying, by Sens. Rollie Heath & Bill Cadman and Reps. Dickey Lee Hullinghorst & Brian DelGrosso. The bill decriminalizes certain financial, dishonest, threatening, or unprofessional practices by lobbyists, including making excessive payments to covered officials, knowingly attempting to deceive covered officials, attempting to influence covered officials by threats or intimidation, and knowingly promoting legislation in order to oppose it in the future.
  • HB 14-1105 – Concerning the Exemption from the State Gasoline and Special Fuel Tax of Sales Between Governmental Entities, by Rep. Diane Mitsch Bush and Sen. Nancy Todd. The bill allows governmental entities with fuel tax exemptions to sell or purchase fuel from other governmental entities with fuel tax exemptions.
  • HB 14-1136 – Concerning Exempting a Continuing Professional Education Program that is Approved by a State Professional Licensing Board from Regulation by the Division of Private Occupational Schools in the Department of Higher Education, by Rep. Dianne Primavera and Sen. Nancy Todd. The bill exempts certain qualifying nonprofit occupational schools from oversight by the Department of Higher Education.
  • HB 14-1271 – Concerning Extending a Mental Health Provider’s Duty to Warn to Include Specific Entities that, if Purposefully Damaged or Attacked as a Result of a Mental Health Patient’s Violent Behavior, Would Jeopardize Public Health and Safety, by Rep. Jovan Melton and Sen. Linda Newell. The bill extends civil liability for mental health providers to organizations that provide mental health services, and extends the duty to warn to include a warning to specific entities that, if attacked, would pose harm to public health and safety.
  • HB 14-1274 – Concerning the Modification of Certain Limitations on the Managers of a Bank Chartered by Colorado, by Reps. Tracy Kraft-Tharp & Chris Holbert and Sen. Cheri Jahn. The bill repeals certain limitations on the qualifications for state bank directors.

For a list of Governor Hickenlooper’s legislative decisions, click here.