December 13, 2018

Archives for November 26, 2018

Colorado Gives: DU’s Tribal Wills Project Needs Volunteers and Donations

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona, South Dakota, and Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2019, 24 students and 7 supervising attorneys will travel to Tohono O’odham Reservation, near Tucson, Arizona. The Tohono O’odham Reservation is partially in the United States and partially in Mexico. At the invitation of various tribes, TWP has now been to six states: Arizona, Colorado, Montana, New Mexico, South Dakota, and Utah.

It costs approximately $15,000 to fund each trip, which is funded entirely by donations. Through your donations, you can ensure that no student is prevented from participating in this wonderful educational experience because of finances.

TWP is also actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Colorado Court of Appeals: Surviving Spouse Not Entitled to Minimum Elective Share When Nonprobate Assets Exceeded Elective Share Amount

The Colorado Court of Appeals issued its opinion in In re Estate of Cloos on Thursday, November 15, 2018.

Probate—Elective Share—Supplemental Elective Share.

The decedent devised her entire estate to her daughter, Jean Ann. Because the will devised the entire estate to Jean Ann, Jean Ann’s father, Cloos (who was the decedent’s husband), made statutory claims for shares of the estate. He claimed a $32,000 family allowance (FA) and a $32,000 exempt property allowance (EPA). He also petitioned for a supplemental elective share of the marital property. Jean Ann was the original personal representative (PR), but the court later appointed Findley as successor PR due to mutual distrust between Jean Ann and Cloos. Findley approved the sale of the marital home to Cloos to be paid with credits for his FA and EPA claims and gave Cloos a credit of $50,000 from probate estate funds for his “statutory minimum elective-share,” as well as 48,500 cash, which was the only asset in the estate. The district court granted a final settlement of the estate.

On appeal, Jean Ann contended that the district court erred by allocating $50,000 in elective-share funds from the probate estate to Cloos. A surviving spouse married for 10 years or more is statutorily entitled to an elective share of marital assets equal to (1) 50% of the augmented estate (standard elective share), or (2) $50,000 (supplemental elective share), whichever is greater. In satisfying the $50,000 amount, the surviving spouse’s own title-based ownership interests count first; for this purpose, the survivor’s assets include amounts transferred to the survivor at the decedent’s death and amounts owing to the survivor from the decedent’s estate under the elective share formula.

In this case, Cloos’s share of marital assets in real estate interests alone far exceeded $50,000 because he owned half of the Fort Collins house (appraised at $325,000) and all of the Wyoming cabin (assessed at $277,000). Therefore, Cloos is not entitled to a supplemental elective share of the estate, and it was error to credit him with a supplemental $50,000 of probate estate funds toward his purchase of the Fort Collins house. However, the record does not contain a calculation of the augmented estate at the time of the decedent’s death. While it appears from the limited information in the record that Cloos held well over 50% of the augmented estate and was thus not entitled to any further assets from the probate estate, there is no evidence in the record that the successor PR calculated either the actual value of the augmented estate or the percentage held by Cloos. It is thus unclear whether Cloos was entitled to any standard elective-share credit toward the house.

The order approving the final settlement of the estate was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Workers’ Compensation Act Does Not Require Employer to Cover Cost of Conservator or Guardian

The Colorado Court of Appeals issued its opinion in Nanez v. Industrial Claim Appeals Office on Thursday, November 15, 2018.

Workers’ Compensation—C.R.S. § 8-42-101(1)(a)Conservator or Guardian ServicesMedical Treatment.

While working as a plumber, Nanez sustained permanent disabling closed-head injuries, causing significant cognitive deficits. His authorized treating physician (ATP) placed him at maximum medical improvement with a permanent impairment rating of 47% of the whole person. His employer admitted liability. As a result of his cognitive impairments, Nanez’s ATP recommended that both a conservator and guardian be appointed to function as Nanez’s “peripheral brain.” Both were appointed, and Nanez requested his employer pay for them pursuant to C.R.S. § 8-42-101(1)(a). He also asked that his average weekly wage (AWW) be increased to cover his lost potential earning capacity. Both requests were denied by an ALJ, and the denial was affirmed by a panel of the Industrial Claim Appeals Office (Panel).

On appeal, Nanez contended that his employer should be liable to pay for the guardian and conservator. He contended that their services are medical benefits because they relieve the effects of his brain injury. The court of appeals found support for the ALJ’s findings that the conservator’s services handling Nanez’s finances didn’t cure or relieve him of the injury’s effects, and Nanez failed to establish that the guardian’s duties in managing his treatment and ongoing care were reasonable and necessary. The court concluded that the conservator’s and guardian’s services were not medical treatment as that term is used in C.R.S. § 8-42-101(1)(a) and therefore the employer was not liable to pay for them.

Nanez also contended that the Panel erred in affirming the ALJ’s denial of the AWW increase. The ALJ’s decision declining the increased AWW because Nanez’s potential future wages are too speculative is supported by substantial record evidence, and the Panel properly affirmed it.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/21/2018

On Wednesday, November 21, 2018, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. McRae

United States v. Neihart

United States v. Amaya

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 11/23/2018

On Friday, November 23, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Bryant v. Commissioner, SSA

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.