June 28, 2017

Colorado Court of Appeals: Probate Court Had Jurisdiction to Appoint Temporary Co-Guardians

The Colorado Court of Appeals issued its opinion in In the Interest of L.B. on Thursday, January 12, 2017.

Probate—Child—Subject Matter Jurisdiction—Guardianship—Home State.

L.B.’s mother died and her father, Berzins, hired Dusalijeva as L.B.’s nanny. Later, they developed a romantic relationship. Berzins had and L.B. has dual citizenship in the United States and Latvia. Berzins died in 2015 in Denver. He had two wills: a 2012 Will executed in Latvia, and a 2014 Will executed in Denver. The 2014 Will expressly revoked all prior wills and left the residuary estate in trust for the benefit of L.B. and Blumberg (Berzins’s other daughter) or Blumberg’s descendants.

In March, May, and July 2015, the court appointed Dusalijeva and Blumberg as temporary co-guardians, initially at their request. In April 2015, without informing the Denver Probate Court, Dusalijeva moved for sole guardianship of L.B. in Latvia. After a four-day hearing, the Denver probate court appointed Blumberg and a Latvian couple, the Carlins, as permanent co-guardians of L.B. in August 2015. Ultimately, the Latvian appellate court found that Dusalijeva and her attorney had attempted to deceive the Latvian orphan’s court by relying on the superseded 2012 Will and failing to inform the court of the 2014 Will, and it concluded that matters regarding L.B. should be determined by a U.S. court.

On appeal, Dusalijeva primarily contended that the probate court lacked subject matter jurisdiction. First, she contended that the court lacked jurisdiction under C.R.S. § 15-14-204(5) and (1) on the three occasions it temporarily appointed her and Blumberg as co-guardians. Based on the Colorado Court of Appeals’ review of the record, the court had jurisdiction under C.R.S. § 15-14-204(5). The probate court also had jurisdiction under C.R.S. § 14-13-204(1) because L.B. had been “abandoned” within the meaning of the statute.

Dusalijeva next contended that the probate court lacked permanent subject matter jurisdiction pursuant to C.R.S. § 14-13-204(2). Subsection (2) is arguably inapplicable in this case because the court did not say that its temporary orders appointing co-guardians would become permanent. Instead, the court held a hearing in August 2015 to determine independently who should be L.B.’s permanent guardian. The court did not decide this issue because it found the probate court had jurisdiction under C.R.S. § 14-13-201.

Dusalijeva also appeared to contend that the probate court lacked subject matter jurisdiction to determine permanent guardianship under C.R.S. § 14-13-201(1). The probate court properly exercised subject matter jurisdiction because Colorado was found to be L.B.’s home state. Further, even if Latvia had adopted a provision in substantial conformity with C.R.S. § 14-13-201(1)(a), the Latvian courts declined to exercise jurisdiction, ruling that Colorado was a more appropriate forum.

The court also considered and rejected six other alleged errors by the probate court and declined to address several arguments that Dusalijeva raised for the first time in her reply brief.

The orders were affirmed.

Summary provided courtesy of The Colorado Lawyer.

SB 16-199: Amending Regulation of Programs of All-Inclusive Care for the Elderly

On April 22, 2016, Sens. Ray Scott & Pat Steadman and Reps. Brian DelGrosso & Joann Ginal introduced SB 16-199Concerning Programs of All-Inclusive Care for the Elderly. The bill was assigned to the Senate Health & Human Services Committee, where it was amended and referred to Appropriations. The bill was again amended in Appropriations and referred to the Senate floor for Second Reading. After being amended on Second Reading, the bill passed Third Reading with no amendments.

The bill makes a number changes with respect to the State Department’s interaction with and regulation of organizations and facilities providing a program of all-inclusive care for the elderly (“PACE”).

The bill requires that contracts between the Department of Health Care Policy and Financing (“Department”) and a PACE organization include the negotiated monthly capitated rate for services. The rate must be based upon a prospective monthly capitation payment to a PACE organization for a Medicaid participant enrolled in a PACE program that is less than what would otherwise have been paid under the state Medicaid plan if the participant were not enrolled in the PACE program.

The Department shall participate with Colorado PACE organizations to develop an actuarially sound upper payment limit methodology that complies with federal law, while addressing and employing information on the PACE population. The Department shall provide state long-term care options data, as well as relevant Medicare and Medicaid data, necessary for the computation of the upper payment limit. An actuary experienced in these methods shall assist with the computation. Until the upper payment limit methodology is developed and adopted in state board rules, the percentage of the upper payment limit used to calculate the monthly capitated rate shall not be less than the percentage negotiated for the 2016-2017 state fiscal year.

The bill creates the state PACE ombudsman (“ombudsman”) in the state long-term care ombudsman program. Each PACE program shall post at all PACE facilities a notice, prepared by the ombudsman, informing PACE participants of the existence of and contact information for the ombudsman. The ombudsman shall have immediate access to a PACE program or facility, and to PACE participants, for the purposes of carrying out the duties of the ombudsman.

The bill establishes the following duties of the ombudsman: (1) establish policies and procedures to identify, investigate, and resolve complaints made by or on behalf of a PACE participant related to any act or omission of any PACE organization; (2) provide training and technical assistance to PACE organizations and their employees; (3) establish procedures to analyze the development and implementation of federal, state, and local law and policies with respect to PACE services, programs, and facilities (and recommend changes to Colorado’s laws and policies); and (4) pursue administrative, legal, or other appropriate remedies on behalf of PACE participant.

The bill establishes a civil penalty for any person who takes any discriminatory, disciplinary, or retaliatory action against any PACE participant or any employee of a PACE organization for any communication with an ombudsman.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Trial Court Not Required to Order Accounting at Request of Interested Person

The Colorado Court of Appeals issued its opinion in Sidman v. Sidman on Thursday, March 24, 2016.

Legal Guardian—Motion for Accounting—Discretion.

In 2002 Michael and Renee Sidman were appointed as legal guardians for their nephew, who was born in 1999. The parents paid child support and filed a motion for an accounting. The trial court denied the motion, and the parents appealed.

The guardians filed a motion to dismiss the appeal, arguing that (1) the order denying the motion for an accounting was not a final, appealable order because a motion to modify child support was pending and the order did not resolve all pending matters, and (2) the court should have followed the law of the case and not reached the merits of the motion, based on its two previous orders denying similar requests for accountings. Even if the order was not final at the time the appeal was filed, the jurisdictional defect was cured when the motion to modify child support was resolved in November 2014. Furthermore, the trial court was not compelled by the law of the case to refrain from considering the parents’ motion; the decision was a matter in the court’s discretion.

The parents contended on appeal that the trial court abused its discretion in denying their motion for accounting. The Court of Appeals determined that CRS § 15-14-207(2)(e) did not require the court to order the guardians to provide an accounting. Instead, the parents’ motion triggered the court’s duty to exercise its discretion as to whether to order an accounting and the extent of any such accounting. The court properly exercised its discretion.

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Probate, Name Change, and More JDF Forms Amended by State Judicial in January

In January 2016, the Colorado State Judicial Branch issued 13 new forms. Many of the forms are in the Probate category, specifically dealing with adult guardianships, and the rest of the forms include forms about name changes, request for payment of fees, and appointments of guardians ad litem. The forms are available here in PDF format and are available from the State Judicial forms page in Word or PDF.

PROBATE

  • JDF 895 – “Instructions to Register Out of State Guardianship or Conservatorship Orders for Adult in Colorado” (1/16)
  • JDF 797 – “Rights of Respondent in Appointment of Guardian/Conservator” (R01/16)
  • JDF 799 – “Information for Respondent in Appointment of Guardian” (R01/16)
  • JDF 805 – “Acceptance of Office” (R01/16)
  • JDF 854 – “Order for Termination of Guardianship” (R01/16)

NAME CHANGE

  • JDF 385 – “Instructions for Filing a Change of Name Following Conviction/Adjudication of a Felony” (R01/16)
  • JDF 388 – “Instructions for Filing a Change of Name for an Individual 70 Years of Age or Older” (R01/16)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (R01/16)
  • JDF 387 – “Final Decree for Change of Name to Obtain Identity Related Documents” (R01/16)
  • JDF 433 – “Petition for Change of Name (Adult)” (R01/16)

CRIMINAL

  • JDF 208 – “Application for Public Defender, Court-Appointed Counsel, or Guardian Ad Litem” (R01/16)

DOMESTIC

  • JDF 1318 – “Order Appointing Child and Family Investigator” (R01/16)

MISCELLANEOUS

  • JDF 207 – “Request and Authorization for Payment of Fees” (R01/16)

For all of State Judicial’s JDF forms, click here.

Colorado Court of Appeals: Status as VA Designated Payee Does Not Confer Priority for Appointment as Conservator

The Colorado Court of Appeals issued its opinion in In re Estate of Runyon on Wednesday, December 31, 2014.

Appointment of Uniform Veterans’ Guardianship Act Guardian—Appointment of Guardian by Incapacitated Person.

Gladys Runyon (mother) was the authorized payee for Sidney Runyon’s Department of Veterans Affairs (VA) benefits until August 2011, when Elizabeth Knight (sister) became the payee. In February 2012, the VA designated Colorado State Bank and Trust (Bank) as payee.

The Bank petitioned for appointment as Runyon’s guardian under the Uniform Veterans’ Guardianship Act (UVGA). It also petitioned to have Jeanette Goodwin appointed as Runyon’s guardian under the Colorado Probate Code. The Denver Probate Court concluded that the Bank’s petitions were filed in the wrong venue but appointed Goodwin as emergency guardian through August 2012.

Ten months after the expiration of the emergency guardianship, mother and sister sought appointment as co-guardians and conservators in Arapahoe County. Runyon advised the court-appointed visitor that he didn’t want mother and sister appointed. The court appointed counsel for Runyon.

The Bank then entered an appearance and sought appointment as conservator and UVGA guardian, and nominated Goodwin as guardian. At the hearing, Runyon’s attorney advised the court of Runyon’s preferences to appoint the Bank and Goodwin as conservator and guardian, and the court granted the appointments.

On appeal, mother and sister argued that the trial court erred because (1) their purported status as designated payees for Runyon’s VA and Social Security Administration (SSA) benefits entitled them to be appointed, and (2) the court should not have given effect to Runyon’s preferences. The Court of Appeals disagreed with the first point and remanded for further proceedings on the second.

The appointment of a guardian lies within the sound discretion of the probate court. A respondent’s nomination of a guardian creates a priority for that nominee, but only if the respondent had “sufficient capacity to express a preference” at the time of the nomination. The respondent may make an oral nomination at an appointment hearing. There is a similar scheme for appointment of conservators and UVGA guardians.

Here, mother and sister had no priority claim to be a guardian or conservator, and being appointed as designated payees of Runyon’s SSA and VA benefits did not confer any such priority claim on them. By nominating the Bank and Goodwin at the hearing, Runyon conferred on them a priority for appointment. However, the record did not reflect whether the trial court found that Runyon had sufficient capacity to express a preference at the time of the nomination. The Court remanded for such a determination, but noted that a finding that a respondent is an “incapacitated person” under the statute does not necessarily mean that the respondent lacks sufficient capacity to express a preference as to a guardian or conservator.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Cannot Sua Sponte Certify Question for Interlocutory Review

The Colorado Court of Appeals issued its opinion in People in Interest of M.K.D.A.L. on Thursday, October 23, 2014.

CAR 4.2—Sua Sponte Certification of an Issue for Interlocutory Review.

J.A.A.U., the biological father of M.K.D.A.L., petitioned under CRS § 15-14-304(1) for his appointment as a permanent guardian. According to the petition, “[r]espondent is unable effectively to communicate in the English language to the extent that he lacks the ability to satisfy essential requirements for physical health, safety, or self-care even with appropriate and reasonably available technological assistance.”

The trial court denied the petition, finding that, as a matter of law, speaking English is not a requirement for competency. The court also stated that, pursuant to CAR 4.2, it “will stay this order for 14 days and certify that there is no current case law on this point and that determination of this issue will determine the case.” Petitioner timely filed a petition for interlocutory appeal. There was no motion or stipulation for certification.

Under CAR 4.2(c), the appealing party must move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed. The trial court then has discretion to certify the order as immediately appealable; however, if all parties stipulate, the trial court must certify the order. No case interpreting CAR 4.2 has addressed a petition to appeal based on a trial court’s sua sponte certification.

The Court of Appeals concluded that a trial court cannot certify sua sponte an issue for interlocutory review.The Court recognized that a case may arise in which, despite the parties’ inaction, the trial court perceives that its order clearly involves “a controlling and unresolved question of law,” immediate review of which would “promote a more orderly disposition or establish a final disposition of the action,” as provided by CAR 4.2(b). However, the rule only empowers trial courts to grant or deny a motion for certification, not to initiate certification. Accordingly, the petition was dismissed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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.

Many Probate JDF Forms Amended by Colorado Supreme Court and State Judicial

The Colorado State Judicial Branch issued several new and revised JDF forms in the Probate category in June and July, after the Colorado Supreme Court issued Rule Change 2013(08) on June 19, 2013.

Most of the instruction forms were changed, as well as forms regarding guardianships for adults and minors, the Conservator’s Report, and the small estate affidavit. Click the links below to view and download the forms.

PROBATE FORMS

  • JDF 782 – Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State (revised 7/13)
  • JDF 786 – Instructions to File a Petition to Transfer Adult Guardianship and/or Conservatorship from Colorado to Receiving State (revised 7/13)
  • JDF 820 – Instructions for Appointment of Guardian by Will or Other Signed Writing (revised 7/13)
  • JDF 823 – Instructions for Appointment of Guardian – Minor (revised 7/13)
  • JDF 840 – Instructions for Appointment of Guardian – Adult (revised 7/13)
  • JDF 860 – Instructions for Appointment of Conservator – Minor (revised 7/13)
  • JDF 875 – Instructions for Appointment of Conservator – Adult (revised 7/13)
  • JDF 887 – Instructions to File a Petition to Terminate Conservatorship (revised 7/13)
  • JDF 906 – Instructions for Probate With a Will (revised 7/13)
  • JDF 907 – Instructions for Probate Without a Will (revised 7/13)
  • JDF 957 – Instructions for Closing an Estate Formally (revised 7/13)
  • JDF 958 – Instructions for Closing a Small Estate Informally (revised 7/13)
  • JDF 959 – Instructions for Closing an Estate Informally (revised 7/13)
  • JDF 989 – Instructions to Re-Open an Estate (revised 7/13)
  • JDF 998 – Instructions for Completing Affidavit for Collection of Personal Property (revised 6/13)
  • JDF 827 – Order Appointing Guardian for Minor (revised 6/13)
  • JDF 828 – Order Appointing Temporary Guardian for Minor (revised 6/13)
  • JDF 829 – Order Appointing Emergency Guardian for Minor (revised 6/13)
  • JDF 830 – Letters of Guardianship – Minor (revised 6/13)
  • JDF 843 – Order Appointing Emergency Guardian for Adult (revised 6/13)
  • JDF 846 – Order Appointing Temporary Substitute Guardian – Adult (revised 6/13)
  • JDF 848 – Order Appointing Guardian for Adult (revised 6/13)
  • JDF 885 – Conservator’s Report (revised 6/13)
  • JDF 999 – Collection of Personal Property by Affidavit (revised 6/13)

For all of State Judicial’s JDF forms, click here.