June 27, 2017

Colorado Court of Appeals: District Court Has Broad Jurisdiction Over Any Matter Essential to Resolving Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Owens on Thursday, April 20, 2017.

EstateJurisdictionConstructive TrustTestamentary CapacityUndue InfluenceJury TrialContempt.

Dr. Arlen E. Owens (the decedent) hired Dominguez as his private caregiver in 2010. The decedent died in July 2013. After the decedent’s death, his brother and only living heir, Owens, filed a petition for informal probate of the decedent’s will, and later a petition for determination of testacy and for determination of heirs, alleging that the will that the decedent had signed in 2012 was the product of undue influence by Dominguez and that the decedent had lacked the capacity to execute the will. He also filed a complaint for recovery of estate assets and asked the court to invalidate the will and order the decedent’s estate to be administered under intestate distribution statutes. In 2015, Owens also filed a petition to set aside non-probate transfers for three bank accounts for which Dominguez was payable-on-death (POD) beneficiary. The court imposed a constructive trust over the POD accounts. The court later upheld the will but found that the decedent had not had the capacity to execute the POD designations and had been unduly influenced by Dominguez. After issuance of the final judgment, the court issued a contempt order against Dominguez for violating the constructive trust that included the condition that she could purge the contempt by paying back the money from the bank accounts.

On appeal, Dominguez contended that the district court did not have jurisdiction to set aside the POD designations and impose a constructive trust on the POD accounts because Owens and the estate did not have standing to make such requests. A district court has jurisdiction to determine every legal and equitable question arising in connection with estates. The claims regarding the POD designations arose in connection with and were essential to the estate administration. Thus, the court had jurisdiction to impose a constructive trust, Owens had standing, and the court had jurisdiction to resolve the issues surrounding the POD designations.

Dominguez next asserted that the district court erred when it determined that the decedent had not had the testamentary capacity to designate Dominguez as beneficiary of the POD accounts and that Dominguez had unduly influenced the decedent to designate her as beneficiary of the three accounts. However, the record supports the court’s factual findings and its assessment of the credibility of each witness, and the court of appeals did not displace the district court’s conclusions.

Dominguez next argued that the district court erred when it prevented her from exercising her right to a jury trial. Because Dominguez had the opportunity to exercise her right to a jury trial and failed to do so, she waived her claims to such right.

Dominguez also contended that the district court erred in concluding that the existence of nonliquid assets can be the basis for determining that a contemnor has the present ability to pay. Here, Dominguez could not provide a coherent, consistent account of what had happened to the funds in the POD accounts. The contempt order was supported by analysis of evidence on the record. Thus, the court did not err in holding Dominguez in contempt.

The court of appeals also concluded that neither party was entitled to attorney fees.

The judgments were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney Fee Award Appropriate Where Claims Lacked Substantial Justification

The Colorado Court of Appeals issued its opinion in In re Estate of Shimizu on Thursday, November 3, 2016.

Decedent—Deed–Undue Influence—Lack of Capacity—Attorney Fees—Groundless—Vexatious—C.R.S. § 13-17-102.

Decedent died intestate and was survived by his half-sister, Szoke. Szoke challenged the validity of a deed that decedent had executed near the end of his life. In that deed, decedent purported to convey his house to three of his close friends (the recipients). The probate court rejected Szoke’s claims, finding the recipients’ case far more persuasive because it was based on evidence from persons who had direct contact with decedent near or at the time the deed was executed, and not all of whom were interested in the outcome of the case. The court also determined that the recipients were entitled to an award of attorney fees under C.R.S. § 13-17-102 because Szoke’s claims “lacked substantial justification” and were “groundless, in that she presented valid theories of undue influence and lack of capacity, but offered little or nothing to support those claims.” The probate court awarded the recipients attorney fees.

On appeal, Szoke contended that the probate court erroneously awarded attorney fees to the recipients under C.R.S. § 13-17-102. The probate court found that Szoke’s claims were “groundless” because she did not present much evidence to support her claims, and the court did not believe her evidence in light of the recipients’ evidence. Based on the evidence presented by Szoke, a reasonable fact finder could have found undue influence and lack of capacity. Because Szoke presented some credible evidence in support of her claims, her claims were not sanctionable as groundless under C.R.S. § 13-17-102. On the other hand, although the trial court did not explicitly characterize Szoke’s action as “vexatious,” that was the gist of its findings and conclusions. Because the court’s findings are supported by the record, the court did not abuse its discretion in awarding fees for conduct that was “stubbornly litigious, or disrespectful of the truth,” and, thus, “substantially vexatious.”

The award of attorney fees was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence Insufficient to Support Involuntary Administration of Medication

The Colorado Court of Appeals issued its opinion in People in Interest of R.K.L. on Thursday, May 19, 2016.

Involuntary Administration of Medication—Due Process—Clear and Convincing Evidence.

On request of the People, R.K.L., a/k/a A.J.J., was found to be mentally ill and a danger to others and gravely disabled, and was certified to Colorado Mental Health Institute at Fort Logan for short-term treatment for a period not to exceed three months. The probate court also authorized involuntary administration for 11 requested antipsychotic medications. Before the expiration of that order, the People filed a notice extending the certification for treatment for an additional three months and a motion to extend the involuntary medication order. The probate court, following a hearing, extended the certification for short-term treatment and granted the motion for continued involuntary administration authority for the requested medications.

A.J.J. appealed both orders. He conceded that the People had established by clear and convincing evidence that he has a mental illness and that he has not voluntarily accepted treatment. He argued that the court erred in finding that the People proved by clear and convincing evidence that he is a danger to others or gravely disabled. The Court of Appeals held that the probate court’s finding that A.J.J. is a danger to others was supported by evidence in the record. Alternatively, the Court found sufficient evidence in the record to support the probate court’s findings by clear and convincing evidence that A.J.J was gravely disabled as a result of his mental illness. Sufficient evidence supports the probate court’s orders upholding the certification and extended certification of A.J.J. for short-term treatment.

To involuntarily administer antipsychotic medication without violating a patient’s due process rights, all four elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo. 1985), must be proven by clear and convincing evidence. The Court found that the evidence did not support the probate court’s findings as to two of these elements regarding involuntary administration of 10 of the medications, but the evidence was sufficient to support the administration of one medication. The Court agreed with A.J.J. that the evidence did not support the court’s findings that (1) the People had established by clear and convincing evidence that there was no less intrusive alternative than administering the 10 antipsychotics and (2) A.J.J.’s need for treatment with the 10 antipsychotic medications overrode his bona fide and legitimate interest in refusing this treatment.

The orders were reversed to the extent that they authorized involuntary administration of 10 antipsychotics and affirmed in all other respects.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Monies Held in Joint Accounts Not Part of Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Sandstead on Thursday, April 7, 2016.

Auriel and Willard Sandstead attempted to avoid probate by titling their real estate and bank accounts jointly in their names and two of their three daughters’ names. The couple executed wills in 1991 and again in 2000. After Willard’s death, Auriel presented only the 1991 will for probate and neglected to mention the 2000 will.

Auriel held proceeds from the sale of a family farm in a joint bank account with the two daughters, Vicki Sandstead (Sandstead) and Shauna Sandstead Corona (Corona). After an altercation with a Wells Fargo employee, Sandstead transferred $200,000 out of the joint account and into an account at Citizens Bank in Massachusetts that she held jointly with her mother but not with Corona. Sandstead used those funds for her mother’s benefit during her lifetime and also to conduct repairs on some of the properties held jointly.

After Auriel died, Sandstead and Corona executed small estate affidavits as to their parents’ personal property, since most of the assets had been removed from probate by joint titling with their daughters. Sandstead noticed some items missing from the estate, and opened a probate case where she was named as PR. Corona petitioned to remove Sandstead as PR, and a successor was agreed upon by the sisters. Corona moved for surcharge, attorney fees, and other relief against Sandstead as to her actions as PR, specifically alleging Sandstead breached her fiduciary duties to Corona because of the $200,000 transfer prior to their mother’s death. The district court surcharged Sandstead for the $200,000 transfer and two other transfers occurring before the probate estate was opened.

At some point, the sisters became aware of the 2000 will. Corona challenged the will as having been revoked by their mother. Sandstead and the two grandsons included as heirs in the 2000 will argued that the in terrorem clause in the 2000 will barred Corona from recovering under the will. The district court granted Sandstead’s motion for enforcement of the in terrorem clause in the 2000 will against Corona. The district court noted that if the parents were unaware of the 2000 will as Corona claimed, it was hard to imagine how they could have revoked it. Both sisters appealed.

On appeal, the Colorado Court of Appeals reversed the district court’s surcharge. The court held that Sandstead had a legal right to transfer the moneys due to being a signatory on the joint bank account. The assets in the Citizens Bank account were never part of the probate estate and therefore could not have been subject to surcharge. The court found that Sandstead had never intended for the monies to be included in the probate estate, and had vehemently denied their inclusion when the issue was raised in court. The court of appeals reversed the district court’s surcharge against Sandstead. The court upheld the district court’s enforcement of the in terrorem clause in the 2000 will against Corona, finding that she could not have reasonably believed that her mother had revoked the 2000 will since there was no evidence Willard and Auriel had executed subsequent wills or destroyed the 2000 will, the only two ways enumerated in the statute to revoke a will.

The district court’s order was reversed in part, affirmed in part, and remanded with instructions.

e-Legislative Report: Week of March 14, 2016

Welcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers 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 from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting held Friday, February 26, 2016

There was no meeting of the LPC on March 4. We will be considering a number of bills this coming week, but here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1165 – Colorado Child Support Commission Statutory Changes
The LPC voted to seek an amendment to this bill, which was subsequently added in the House before the bill was passed on to the Senate. The amendments offered clarify the calculations of parenting time in certain circumstances

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven
The LPC voted to oppose this bill because of vague language that could result in unnecessary litigation and an additional burden on the judiciary.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity
This is the first of a package of four business law clean-up bills from the Business Law Section. It aims to protect the security interest of owners and secure the “pick a partner” provision in Colorado law for all types of business entities.

SB 16-131 – Overseeing Fiduciaries’ Management Of Assets
This bill, written by members of the Trust & Estate and Elder Law sections, clarifies provisions in the Colorado Probate Code regarding a person’s right to counsel and the removal of a fiduciary.

SB 16-133 – Transfer Of Property Rights At Death
This bill clarifies the process and rights associated with property transfers after death by clarifying existing law and providing that the Colorado Probate Code prevails over the Uniform Power of Appointment Act where the Colorado Probate Code is better suited for the state’s probate process.

Bills that the LPC is monitoring, watching or working on can be found here.

New Bills of Interest

HB 16-1339 – Agricultural Property Foreclosure
Current law establishes the initial date of sale of foreclosed property based on who is selling the property and whether the property is agricultural or nonagricultural. Property is nonagricultural unless all of the property is considered agricultural. The bill extends the provisions relating to agricultural property to property in which any part is agricultural.

SB 16-148 – Require Civics Test Before Graduating from High School
Under existing law, each high school student must satisfactorily complete a civics course as a condition of high school graduation. In connection with this requirement, the bill requires each student who is enrolled in ninth grade during or after the 2016-17 school year to correctly answer, before graduating from high school, at least 60 questions from the civics portion of the naturalization test (test) used by the United States citizenship and immigration services. The school district, charter school, or school operated by a board of cooperative services (local education provider) that enrolls the student may allow the student to take the test on multiple occasions while enrolled in ninth through twelfth grade and, if necessary, to repeat the test until the student correctly answers at least 60 questions. Once the student correctly answers 60 questions, the local education provider will note the accomplishment on the student’s transcript. A student who has a disability is excused from this requirement, except to the extent it may be required in the student’s individualized education program. The superintendent or principal of a local education provider may waive the requirement for a student who meets all of the other graduation requirements and demonstrates the existence of extraordinary circumstances that justify the waiver. Each local education provider has complete flexibility in determining the manner of delivering the test and may incorporate the test into its existing curriculum. A local education provider shall not use the results of the test in measuring educator effectiveness.

SB 16-150 – Marriages By Individuals In Civil Unions
The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who entered or who will enter into a civil union after the passage of the bill. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same two parties. The executive director of the Department of Public Health and Environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between two individuals who are the same sex. The bill states that a civil union license and a civil union certificate do not constitute evidence of the parties’ intent to create a common law marriage. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in the state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act.” Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act.” If a civil union is merged into a marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2016, to include a person who, while married, marries, enters into a civil union, or cohabits in the state with another person not his or her spouse and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in the state with another person not his or her civil union partner. mmittees of the Bar Association.

Colorado Court of Appeals: Equitable Denial of Apportionment of Estate Taxes Improper

The Colorado Court of Appeals issued its opinion in Estate of Petteys v. Farmers State Bank of Brush on Thursday, March 10, 2016.

Robert Petteys established a trust for his children and surviving descendants. He also executed a will providing that all death taxes shall be apportioned among the recipients of his estate as provided by Colorado law. He died in 2009, leaving a substantial estate. The estate’s personal representative paid the federal estate taxes from the estate’s liquid assets, then filed an action in district court against the trust, seeking reimbursement for the taxes attributable to the value of the property Petteys contributed to the trust that was included in the gross estate.

The parties filed cross motions for summary judgment. The estate argued it was entitled to reimbursement under the terms of Petteys’ will and Colorado’s apportionment statute. The trustee argued that federal estate tax controls and does not allow reimbursement in this case, alternatively urging the court to deny reimbursement on equitable grounds and also arguing the will provision was unenforceable as an invalid revocation of the trust.

The district court agreed with the estate that Colorado law applied, ruling the estate was presumptively entitled to reimbursement under Colorado’s apportionment statute but material issues of fact precluded summary judgment. After a bench trial, the district court denied apportionment on equitable grounds and entered judgment for the trustee. The district court also sua sponte ruled that Colorado’s apportionment statute was unconstitutional as applied to the trust. The estate appealed, and the trustee cross-appealed the district court’s determination that Colorado law governs apportionment of estate taxes.

The Colorado Court of Appeals agreed with the estate that Colorado’s apportionment statute requires apportionment of the estate taxes to the trust and the district court erred in denying apportionment on equitable grounds, as well as finding the apportionment statute would be unconstitutional as applied to the trust. The court of appeals found no exception to Colorado’s apportionment statute that would allow equitable consideration of tax liabilities. The court also held that although the trust beneficiaries had vested rights to receive income from the trust, they did not have a right to receive income free from taxation.

The court of appeals reversed and remanded with instructions to enter judgment in favor of the estate.

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org

CBA Legislative Policy Committee

For followers 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 from requests from the various sections and committees of the Bar Association.  Members are welcome to attend the meetings – please RSVP if you are interested.

LPC Meeting held Friday, January 29, 2016

The following bills were discussed at the LPC last week.  Other bills of interest from that agenda are tracked and updated below.

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Top Ten Trust & Estate Programs and Homestudies

We have been featuring the Top Ten Programs and Homestudies in several practice areas on Legal Connection—earlier this week, we featured the Top Ten Ethics Programs and Homestudies and the Top Ten Family Law Programs and Homestudies. We will continue to feature substantive areas of law through the rest of December so stay tuned. And now, for the Top Ten Trust & Estate Programs and Homestudies. Drumroll, please:

10. Trust and Estate Topical CLE Luncheons. Each month on the first Tuesday of the month, the CBA Trust and Estate Section presents a topical lunch program highlighting a particular area of trust and estate law. They feature great topics, including “Marijuana in Estate Planning and Administration,” “Gun Trusts,” “Estate Planning During Divorce,” “Special Needs Trusts,” “Medicaid Recovery,” and more. Typically one general credit each; available as MP3 audio download or Video OnDemand.

9. 30 Cases Every Trust & Estate Lawyer Should Know. Did you think of any cases when you saw this title? They were probably featured in this program. Spencer Crona explained the holdings and provided analysis and key insights for 30 important cases in trust and estate law. This is a great way to stock your legal toolkit. Two general credits; available as MP3 audio download and Video OnDemand.

8. Trusts in Divorce Property Divisions. This program, equally valuable to family law and trust and estate practitioners, considers important issues to evaluate when there is a trust in a divorce property division. Attendees receive an electronic copy of Marc Chorney’s book, Trusts in Divorce Property DivisionsTopics discussed at the program included valuation issues, whether beneficiary withdrawal rights are property, approaches to allocation, the dissipation doctrine and trust interests, and more. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Gifts to Minors. There are many reasons people make gifts to minors, including setting up college savings accounts, reducing estates for tax purposes, or making gifts to children and grandchildren. These reasons and more are covered in “Gifts to Minors.” Learn from Laurie Hunter and Kaylynn Hemlock as they discuss the Colorado Uniform Transfers to Minors Act, 529 savings plans, Crummey trusts, § 2503(c) trusts, and more. Attendees receive an electronic copy of Laurie Hunter’s book, Gifts to Minors. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration. Former probate judge James Wade presented this informative program about his book, Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration, which is included with course materials in PDF format. Topics covered include standing to sue, federal court jurisdiction, the directed trustee statute, case law developments regarding spousal elective share, sham trusts, and much more. Attendees receive an electronic copy of the book. Four general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. Advanced Estate Planning Symposium with Ted Atlass. National speaker Ted Atlass returned to CLE to present this program on advanced topics in estate planning. Sessions included planning to minimize Colorado or other state income taxes on trusts, trusts as retirement plan beneficiaries, what to do when your client loses capacity, estate planning for non-traditional families, and estate planning issues with marital agreements. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. Estate Planning Basic Skills/Estate Administration Basic Skills. Each of these programs is held every other year to provide attorneys the fundamentals of estate planning and administration. Estate Planning Basic Skills, which will occur on February 26 and 27, 2016, will discuss the initial client interview, planning and drafting of documents, planning for disability, small estates, use of life insurance, traps to avoid, and much more. Estate Administration Basic Skills, which occurred on February 20, 2015,  covered rights of the surviving spouse and family, income tax issues, real estate matters, ethics and advising fiduciaries, creditors’ claims, and more. Estate Administration Basic Skills — seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. Estate Planning Basic Skills — fourteen general credits, including one ethics credit; available as live program and webcast, and as CD homestudy, MP3 audio download, and Video OnDemand after the program.

3. Estate Planning with Retirement Assets — Trust & Estate Spring Update 2015. Retirement funds are a common asset considered in estate planning, and this program provided an overview of considerations for using retirement funds in estates. Topics covered include definitions of common terms, such as minimum required distributions and designated beneficiaries, designating trusts as beneficiaries of retirement assets, post-death planning, directed IRAs, and more. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand

2. Understanding Benefits — Trust & Estate Fall Update 2015. Estate planning with consideration of benefit eligibility is an important tool for practitioners. This program discussed planning for Medicaid, Medicare, Social Security Income, and VA compensation, as well as implications for nursing home placement and planning for ethical implications. Six general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: The Trust & Estate Fall Update is repeated annually with different themes. Click here for the 2014 program and click here for the 2013 program.

1. 36th Annual Estate Planning Retreat. Each year, Colorado’s trust and estate attorneys gather for a fun weekend of CLE in a beautiful location. The 2016 Estate Planning Retreat will be June 9-11, 2016, in spectacular Snowmass. Highlights for the 2016 Retreat include discussions of international estate planning, case law and legislative updates, unconscious bias in estate planning, “bullet proof” will drafting, tax issues, and more. Registration is not yet open for the 2016 Retreat; visit http://cle.cobar.org/estateplanningretreat for updates.

Probate and Domestic Relations JDFs Amended in August

The Colorado State Judicial Branch released four more updated JDF forms in August 2015: two probate forms and two domestic relations forms. The updated forms are available for download here in PDF format or from the State Judicial website in Word, Word template, and PDF format.

PROBATE

  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 8/15)
  • JDF 882 – “Conservator’s Financial Plan with Inventory and Motion for Approval” (revised 8/15)

DOMESTIC RELATIONS

  • JDF 1201 – “Affidavit for Decree Without Appearance of Parties (Marriage)” (revised 8/15)
  • JDF 1258 – “Affidavit for Decree Without Appearance of Parties (Civil Union)” (revised 8/15)

Click here for all State Judicial’s JDF forms.

Colorado Court of Appeals: Medical Evidence of Competency Not Required Under Conservatorship Statute

The Colorado Court of Appeals issued its opinion in In the Interest of Neher v. Neher on Thursday, July 30, 2015.

Special Conservator—Medical Expert—Stipulation—Witness Disclosure—Evidence.

After receiving several unsolicited e-mails asking for money, Galen Neher (father) sent almost $500,000 to anonymous offshore bank accounts. Suspecting fraud, Christopher Neher, his son, petitioned the court to appoint a special conservator over father’s financial affairs. Although there was no medical evidence to support the petition, the court appointed a conservator to oversee father’s financial affairs.

On appeal, father contended that the conservatorship statute requires medical evidence before a court can properly make a determination of whether an individual is impaired. Because the current statute does not include such a requirement and the prior statute was amended to remove language that might have suggested it, father’s argument was rejected.

Father also argued that the trial court committed reversible error by denying his motion to enforce an oral stipulation whereby father would retake control of his financial affairs but would be monitored by an accounting firm for a year. The parties later disagreed over the terms to be included in a written stipulation. Even assuming that the court should have found the oral stipulation enforceable, the court still proceeded consistent with that stipulation by holding a hearing on whether to make the conservatorship permanent. Therefore, the court did not err in denying father’s motion.

Father further contended that the trial court abused its discretion when it denied his motion for a new trial. The court did not deny father a fair trial when it stopped the proceedings and directed counsel into chambers for discussion without the parties present. Further, his son’s late disclosure of an expert witness did not require reversal because father’s counsel failed to request a continuance. Finally, his son presented clear and convincing evidence that father was unable to manage property and business affairs. The orders appointing a permanent conservator over father’s estate and denying his motion for a new trial were affirmed.

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