Notice of Meeting 5-19-05 and Minutes of Meeting 4-21-05
COLORADO BAR ASSOCIATION
9th Floor, Executive Conference Room (Please check the board as you walk in)
1900 Grant Street
Denver, Colorado 80203-4309
Consider changes to the Visitor’s Report form, CPC 32-V.
Consider John Launce’s drafts of forms for successor personal representatives to apply for appointment in informal probate.
Consider renumbering the Rules and Forms.
Kelly Dickson Cooper
1. The meeting of the Rules and Forms Committee was called to order at 12:15 p.m. on April 21, 2005 by the chair, Michael Holder.
2. The minutes of the March 17, 2005 meeting were approved without objection.
3. The Chair passed out copies of a draft of a proposed replacement for CPC Form 32-V, Visitor’s Report. We looked at this form in light of the statutory requirements for visitors in C.R.S. 15-14-305 (guardianships) and 15-14-406 (conservatorships), which were also handed out.
4. The current form (adopted before UGPPA) asks for more information than the statutes require; was designed for guardianships, not conservatorships; and does not focus on the new statutory requirements for visitors.
5. Gordon Williams noted that a new statute may require background checks for guardians and conservators. If it passes, we may need to consider the impact on this form. The SRC opposed the new law, but it is likely to pass.
6. The proposed form we reviewed begins with the visitor’s findings, as requested by Judge Stewart. The form is intended to be used for guardianships, conservatorships, or a combined proceeding.
7. The form does not now set out separate findings that would only be relevant to a guardianship or a conservatorship proceeding, and we may need to do that.
One example is the finding whether a physician should be appointed (Form, I(C)), which is a decision the court may make in a conservatorship prior to the hearing (406(6)), although the person appointed could be a "physician, psychologist or other qualified individual". (It is not required as part of the visitor’s findings.) The guardianship statute does not contain the same "physician, psychologist or other qualified individual" appointment language, although in both proceedings a visitor must report as to whether a "professional evaluation or other evaluation is necessary".
- Another example is the finding whether medical documentation was provided with the Petition (Form, I(C)(1)), which is not called for per se by the statutes. The guardianship statute does require that the visitor "obtain information from any physician or other person who is known to have treated, advised or assessed" the respondent. 305(4)(c). This is not a statutory requirement in a conservatorship.
8. There was a lot of discussion about the visitor’s duties in a guardianship under 305(4)(c) to obtain medical information. There was consensus that:
Doctors often don’t return calls from visitors.
It is easier to get information from nurses, particularly at the care facility.
We don’t want visitors to do independent medical investigations.
Their job is only to determine whether there is a basis for the allegations in the petition as to incapacity or need for assistance.
The "information" visitors are required to obtain is usually obtained verbally.
Visitors should not be required to obtain, copy or attach medical documents to the report.
Visitors are not paid enough to obtain and attach medical documents, and they should not have to bear the expense of getting copies of medical records.
Nor should visitors retain records they do obtain, as they should not be record-keepers.
They should be expected to shred any records they do receive after making their report.
They should not have to worry about being subpoenaed to testify about their records.
9. We discussed the HIPPA issues causing some visitors difficulty in getting information. One suggestion was having the initial court order of appointment state that the visitor has the authority under the statute (305(4)(c)). This would give visitors a court order that authorizes the release of records to show to third parties.
10. We also discussed the due process issues around the visitors obtaining and using the medical information. The consensus was that the respondent’s condition must be explored in the proceeding, so it is necessary to obtain and summarize information about that condition, but that medical records should not typically be attached to the visitor’s report.
11. We agreed that the form should be as short as possible, while covering all the bases needed.
12. We will continue to work on this form at the next meeting.
13. The meeting adjourned at 1:15 p.m.
Pete Bullard, Secretary
MINUTES OF APRIL 21, 2005 MEETING
AGENDA FOR MAY 19, 2005 MEETING
NOTICE OF MEETING
COMMITTEE ON RULES AND FORMS
TRUST AND ESTATE SECTION OF THE
COLORADO BAR ASSOCIATION
To: Members of the Rules and Forms Committee
The next meeting will be Thursday, May 19, 2005
12:00 p.m. to 1:15 P.M.
BOX LUNCHES WILL BE PROVIDED TO THOSE WHO RESPOND TO
THE NOTICE PROVIDED BY BERT MYRIN