Meeting of Elder Law Section of the CBA
December 13, 2007
John Campbell Denver 303-290-7497
Nancy Germany Denver 303-454-3711
Frank Slaninger Denver 303-758-5200
Marco Chayet Denver 303-355-8500
Bert Myrin Aspen 970-925-8645
Elizabeth Tulloch Denver 303-388-3500
K. Gabriel Heiser Boulder 303-447-6855
John Campbell Denver 303-290-7497
Gretchen Eoff Denver 303-860-1115
Representative to CBA Board of Governors
John Campbell Denver 303-290-7497
Uniform Trust Code Committee
Eric Solem Englewood 303-761-4900
Medicaid Legislation Committee
The Executive Council Meeting of the Colorado Bar Association Elder Law Section was called to order at 8:09 A.M. The HCPF proposed legislation to trusts and special needs trusts was addressed. HCPF is asking the Joint Budget Committee to carry three proposals: Trusts (income, disability, and pooled), Estate Recovery, and Third Party Recoveries. We need to join our opposition with Trust and Estate Section and the Real Estate Section. Joint tenancy will be reconsidered.
Call to Order and call for review and approval of the November 15, 2007 Minutes — The meeting was called to order by John Campbell at 9:03 A.M.
Introductions followed, and the sign-in sheet was circulated. Those attending in person or by phone were:
David Bernhart Jr.
D. Wayne Stewart
Gabriel K. Heiser
The minutes from the November 15, 2007 meeting were approved later in the meeting.
2. Treasurer's Report - Marco Chayet - we have $10,651.54, and we still owe about $2,000 to pay regarding Senior Law Day 2007.
3. Old Business
a. Committee Reports (Chairperson of the committee may report any current matters.) Our current committees are:
I. Civic and Community Affairs: Carl Glatstein - Jennifer Gormley said we are starting to motor up for Senior Law Day 2008 to be held May 31, 2008.
ii. Guardianship Standards: Marco Chayet - Marco reported that Alice Kitt of the Guardianship Alliance had died.
iii. Guardianship Jurisdiction Act Committee: Kate Seal - she reported they have an act in final form, it is on the Elder Law website, and they are gathering sponsors.
iv. CLE and Publications Committee: Jennifer Gormley - Marco Chayet has an article in review stage. There is another coming soon. There will be a Medicaid update for 2008, a Guardian and Conservator update with particulars and protective procedure, and a couple others. One article may treat the issue of how to resolve a Medicaid claim in a probate estate.
v. Advance Directive Task Force: Michael Kirtland - ----
vi. Public Guardianship: Val Corzine - passed.
vii. Fiduciary Misconduct: Marcie McMinimee - there is a need to coordinate different areas of this statute, particularly 15-12-607, 610, and 611. Added restraints were inserted. Statutory Revisions Committee (SRC) approved the language to go into the trust registration by way of a new statute, 15-16-102. The registration statement recites that beneficiaries must protect themselves. 15------------414(1)(d) provides that the Court can remove a conservator and appoint a temporary conservator. Some of these terms need to be made more specific, for example, there is no way to determine if a temporarily appointed conservator made reports.
viii. Joint Tenants: Carl Stevens - The requirements for establishing a joint tenancy in real property are set forth in 38-31-101(1), 10 C.R.S. (2003). Some fear Taylor v. Canterbury, 92 P.3d 1961 (Colo. 2004) destroyed or threatened survivorship, and those who are worried seek to reinstate the four (4) unities of time, title, interest, and possession. Title insurance companies are interested in seeking legislation on their own without waiting for and proceeding through CBA action. Carl continued, stating that elder law attorneys like unequal interests in joint tenancy, which are useful in Medicaid planning. Several states that apparently recognize unequal interests in joint tenancy by case law are Kansas, Arizona, Colorado, Massachusetts, Wisconsin, Michigan, and Missouri. He said three cases (Duston v. Duston, 498 P.2d 1174 (Colo. App. 1972), Sanders v. Knapp,674 P.2d 385 (Colo. App. 1983), and Nippel v. Hammond, 4 Colo. 211 (1878) have recognized joint tenancy as only creating an "equal ownership" is just a "presumption" that can be rebutted by evidence. Legislative action could come quickly, so we need to be ready to act quickly.
ix. Rule 6: Marco Chayet - Judge Stewart's review looks good regarding the use of non- appearance hearings.
x. ADR (joint with Family Law and ADR Sections to work with the Colorado Council of Mediators to develop ADR programs related to issues in Elder Law and elder care) - There are no chairpersons yet. Some members have signed up. Thursdays are completely booked by other estate-related meetings. Perhaps, meetings can be held by tele- conferencing.
b. Liaison Reports -
I. Trust and Estate Council Liaison: Billie Castle - passed.
ii. AARP Liaison: Elizabeth Tulloch and Dennis Valentine - current AARP areas of legislative interest are HCPF (see Hot Topics), TABOR, Medicaid issues, and health issues.
iii. Department of Health Care Policy and Financing Liaison: John Campbell - will reserve for Hot Topics.
iv. CBA Legislative Policy Committee Liaison: Michele Lawonn - will reserve for Hot Topics.
v. Statutory Review Committee (SRC): Marcie McMinimee - she was not at the last meeting.
4. New Business and Announcements
a. Hot Topics Discussion -
I. Judicial Performance Evaluation proposed legislation available for review - John Campbell reported that proposed legislation is drafted. A copy is attached to the December 13, 2007 materials. Michael Valdez stated that some issues conflict with administrative offices, require use of an even number of persons which could create deadlocks in tie votes, and there is a need to avoid politics.
ii. CDHCPF:is planning to introduce new legislation in 2008! - John Campbell reported the second page of the materials contains the HCPF agenda for 2008. They seek to take out 7- 8 years of Elder Law efforts by:
a) require direct deposit of all income assigned to the Income Trust.
b) require HCPF long-term care clients to remit accumulated funds in Income Trusts to CDHCPF upon request but no less frequently than quarterly.
b) limiting sources of funding of income trusts to personal injury settlements or retroactive Supplemental Security Income payments.
c) cap monies that can be paid into a disability trust.
d) require a disability trustee to submit spending plans for review and approval; report any modifications; give advance notice of any expenditures above $2,500; report any additional deposits into the trust within 10 days and describe how the funds will be used.
e) specify which disability trust distributions are permissible and which are not.
f) the same for pooled trusts.
g) limit pooled trusts to individuals under the age of 65.
h) specify that CDHCPF is entitled to reimbursement from a pooled trust when the Medicaid client is no longer eligible.
The proposed legislation addresses the Medical Assistance Estate Recovery Program
a) Allow HCPF to foreclose on Tax Equity and Fiscal Responsibility Act 1982 liens after the death of a Medicaid recipient.
b) specifies that capitation payments made on behalf of Medicaid recipient are considered medical assistance and are recoverable.
c) allows CDHCPF through county human services departments to file for recordation of a request for notice of transfer or encumbrance of real property of a Medicaid recipient.
d) adopts an expanded definition of "estate" for the potential recovery of assets that are not part of the Medicaid recipient's probated estate.
e) clarifies that the printout of the medical claims paid by Medicaid on behalf of the Medicaid recipient are prima facie evidence of services were paid for by Medicaid.
f) HCPF is a "known creditor" for estate recovery purposes.
g) Medicaid claims arise before death but are enforceable only ast death.
h) allows for after-death liens.
I) clarifies personal representatives notice responsibilities.
j) provides the ability to better pursue non-real property estates, excess burial funds, and Unclaimed Funds accounts.
Discussion followed. A new "Medicaid Legislation Committee" was formed, and a sign-up sheet was circulated. Mike Valdex reported he also received a letter from the Revenue Department - it appears they are inviting comment. Catherine Seal stated there are some abuses, for example, the withdrawal of accumulated income in an income trust. So, HCPF should fix the bad things, but not change everything. It's tempting. Maybe there is an advantage to act through legislation rather than through rule-making.
iii) A third party, the Land Title Association, will push a bill that the Real Estate Section pushed last year.
It was moved, seconded, and passed to continue opposition to a joint tenancy bill. It was moved, seconded, and passed to authorize some members of our joint subcommittee to present our view to the legislature. It was moved, seconded, and passed that the issue of unilateral termination of survivorship can be permitted, but there must be notice, and this must be studied before it is included into any statute.
The November 15, 2007 Minutes were approved.
There are two CLE programs today: "Ethics Rules" in our Section and the "new proposed business trust legislation" by John DeBruyn from 11:00 A.M. - 12:00 P.M.
b. Colorado Lawyer articles - keep them coming.
c. CLEs and Programs
Topics and Speakers: Please continue to let the Co-Chairs know your ideas for possible speakers and topics.
The Business Meeting ended at 10:03 A.M.
The CLE portion of the meeting began at 10:15 A.M. Michael Kirtland and Catherine Seal spoke on "The New Ethics Rules."
The "new rules" were a result of the Enron scandals in which attorneys were involved. Two new rules are 1.0 - definitions - and 1.18 - duties to prospective clients.