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In addition to our estate planning services, Kurtz and Peckham provides compassionate personal support and counsel in the settlement and administration of estates.

New in Colorado Probate, Trusts and Fiduciaries 2009

H.B. 09-1198 Uniform Power of Attorney Act. Enacts the “Uniform Power of Attorney Act” (UPOAA) to govern powers of attorney granted by individuals. Excludes certain powers of attorney from the UPOAA. Sets forth a form that may be used to create a statutory form for a power of attorney.
Specifies:
• On January 1, 2010, the UPOAA applies to a power of attorney created before, on, or after January 1, 2010.
• When a power of attorney existing on December 31, 2009, is durable and when, a power of attorney created on or after January 1, 2010, is presumed durable.
• When the UPOAA applies to a judicial proceeding concerning a power of attorney.
• That an act done before January 1, 2010, is not affected by the UPOAA.
Portions Effective April 9, 2009; Portions Effective January 1, 2010

H.B. 09-1260 Designated beneficiary agreements - requirements - recording -revocation- wrongful death actions - intestate succession. Authorizes 2 competent adults who are not married to enter into a designated beneficiary agreement, making each adult a designated beneficiary of the other. Creates a statutory form that the parties to the designated beneficiary agreement use to specify which rights and protections are granted to or withheld by the parties to the agreement. Specifies that rights that may be designated in a designated beneficiary agreement are the rights to:
• Acquire, hold title to, own jointly, or transfer inter vivos or at death real or personal property;
• Designate a beneficiary, payee, or owner as trustee in an inter vivos or testamentary trust for the purposes of a nonprobate transfer on death;
• Designate the other party as a beneficiary and dependent under a life insurance policy;
• Designate the other party as a beneficiary and dependent under a health insurance policy if the employer of the person making the designation elects to provide coverage to designated beneficiaries;
• Designate a beneficiary in a retirement or pension plan;
• Petition for and have priority for appointment as a conservator, guardian, or personal representative of the person making the designation (the “designating beneficiary”)’
• Visit the designating beneficiary in the hospital, nursing home, hospice, or similar health care facility;
• Initiate a formal complain regarding alleged violations of the designating beneficiary’s rights as a nursing home patient’
• Act as a proxy decision-maker or a surrogate decision-maker to make medical care decisions for the designating beneficiary;
• Receive notice of the withholding or withdrawal of life-sustaining procedures for the designating beneficiary;
• Challenge the validity of a declaration as to medical or surgical treatment of the designating beneficiary;
• Act as an agent to make, revoke, or object to anatomical gifts involving the designating beneficiary;
• Inherit through intestate succession upon the death of the designating beneficiary;
• Have standing to receive benefits under workers’ compensation for the death on the job of the designating beneficiary;
• Have standing to sue for wrongful death of the designating beneficiary;
• Direct the disposition of the designating beneficiary’s last remains.

Provides that, in the absence of a superseding legal document that controls, a properly executed and recorded designated beneficiary agreement entitles a party who is named as designated beneficiary to exercise and enjoy the rights and protections that are granted in the designated beneficiary agreement. States that executing and signing a designated beneficiary agreement is not sufficient to designate a party for purposes of an insurance policy, pension plan, or payable upon death designation or transfer of title to property and that additional action will be required to make or change those designations.

States that a superseding legal document, regardless of the date of execution, that is valid and enforceable and conflicts with all or a portion of a designated beneficiary agreement controls and causes the designated beneficiary agreement to be replaced or set aside. Defines a “superseding legal document” to include: A will; codicil; power of attorney; medical durable power of attorney; trust instrument; beneficiary designation in an insurance policy, retirement plan, or pension plan; beneficiary designation for a deposit or account; declaration as to medical treatment; declaration as to disposition of last remains; or marriage license.

Requires the parties to a designated beneficiary agreement to record the agreement with the clerk and recorder of the county in which one of the parties resides. Authorizes the county clerk and recorder to assess fees for recording, making certified copies, and taking acknowledgments. Allows either party to a designated beneficiary agreement to unilaterally revoke the agreement by recording a revocation of designated beneficiary agreement with the clerk and recorder of the county in which the agreement was filed. Declares that a designated beneficiary agreement shall be deemed revoked upon the marriage of either party and, in the case of a common law marriage, as of the date the court determines that a valid common law marriage exists.

Provides that a designated beneficiary agreement is terminated upon the death of either of the parties to the agreement; however, a right or power conferred in the agreement survives the death of the other party. States that a party to a designated beneficiary agreement who survives a designated beneficiary may enter into a designated beneficiary agreement with a different person.

States that a person exercising rights or protections pursuant to a designated beneficiary agreement shall affirm the validity of a designated beneficiary agreement and disclose any knowledge of any superseding legal documents. States that a third party who acts in good faith reliance on the affirmation of the existence of a valid designated beneficiary agreement shall not be subject to civil liability or administrative discipline for such reliance.

Amends the statute on wrongful death actions to allow a designated beneficiary to bring an action for wrongful death of a person who designated him or her with that right. Amends the statute on intestate succession to give priority to a designated beneficiary who was designated with the right to intestate succession; except that, if the decedent has surviving children, directs that the designated beneficiary shall receive one-half of the intestate estate and the surviving children shall receive one-half of the intestate estate.
Effective July 1, 2009