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The Terri Schiavo Tragedy

By: Bruce Alan Danford, Esq.

This article is not meant to advance the position taken by neither the parents of Terri Schiavo nor her husband in this most tragic event. I certainly do not claim any theological or spiritual insight in the arguments advanced by either side. I do strongly advocate the premise that a recurrence of a situation similar to this need not occur in anyone else's life, especially your life.

Over the past several decades there has been a growing body of both statutory law (laws enacted by either a state legislature or the U.S. Congress) and case law (interpretation of the law or the Constitution by the Courts) as to whether or not and to what extent the refusal to accept medical treatment is effectively assisted suicide or not. The governing law is that the refusal to accept medical treatment is not assisted suicide and is entirely within the rights of an individual. Both statutory and case law has also continually upheld the right of an individual to decide his or her own medical treatment or right to refuse medical treatment. I cannot expound upon this any more eloquently and concisely than Supreme Court Chief Justice Rehnquist did in Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 269-270 (U.S. 1990).

Basic Facts Regarding Probate

By Bruce Alan Danford, Esq.

Exactly what is Probate? Probate is generally defined as the administration of the decedent's estate. Administration includes collecting the decedent's assets, paying the debts, paying any taxes, and distributing the assets to the heirs. Commonly there is a great fear of probate. Prior to acceptance by most states of the Uniform Probate Code that fear was probably justified. Prior to that time probate was marked by very expensive court proceedings, high attorney's fees, and long delays. Since incorporation by most states of the Uniform Probate Code all of that has changed for the vast majority of Probate proceedings.

Probate is required when there are assets to distribute to heirs which do not pass by some other means and require distribution under the Probate system. Some assets which do pass automatically and are not part of the Probate estate include several general classes. These assets pass automatically either by operation of law or by a beneficiary designation. The general classes are:

Disposition of Last Remains

"What Happens to Me When I Die?"

By Bruce Alan Danford, LLM (10/3/11)

Will my wishes as to what happens to my body be respected when I die? Many of us have strong feelings about whether we wish to be buried, be cremated, or have some other disposition made of our bodies once we die. Another frequent concern is what ceremonial arrangements will be performed after our death and how will we make sure our wishes for these are carried out?

Fortunately, the Colorado Legislature recognized the concerns of its citizens and passed the Disposition of Last Remains Act. This Act can be found in Colorado Revised Stats § 15-19-101 through § 15-19-109. The Colorado Legislature declared that:

(a) A competent adult individual has the right and power to direct the disposition of his or her remains after death and should be protected from interested persons who may try to impose their wishes regarding such disposition contrary to the deceased's desires.

(b) A statute that determines priority of individuals to direct the disposition of a decedent's remains is necessary if the decedent fails to direct such disposition or fails to provide the resources necessary to carry out such disposition or if a dispute arises between interested persons regarding such disposition.

(c) The right to direct the disposition of one's remains must be stated in writing to better protect a third party who relies in good faith on such decisions. Colo. Rev. Stat. Ann. § 15-19-102

In summary, the law states that an adult can make a written declaration to include their wishes as to how they want their body to be disposed of and what ceremonial rites they want to occur after they pass away. The declaration must be followed but only if the declarant has provided the resources to carry out their wishes. Many times in a Last Will and Testament there will be a clause providing for funeral and burial arrangements.

Guardianship of an Adult

By Bruce Alan Danford, LLM (rev'd 9/26/11)

This article is about a Guardianship for an adult. In order to understand exactly what a guardianship is and how one is created we will begin with some definitions.

A Guardian is defined under Colorado Revised Statute (CRS) § 15-14-102(4) as:

(4) "Guardian" means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by the court. The term includes a limited, emergency, and temporary substitute guardian but not a guardian ad litem.

An Incapacitated Person is defined under CRS § 15-14-102(5) as:

(5) "Incapacitated Person" means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.

A "ward" means an individual for whom a guardian has been appointed. CRS 15-14-102 (15).

The focus of this discussion is only upon the guardianship of an adult who is an incapacitated person as defined above. The duties of a guardian are found in CRS § 15-14-314 as:

(1) Except as otherwise limited by the court, a guardian shall make decisions regarding the ward's support, care, education, health, and welfare. A guardian shall exercise authority only as necessitated by the ward's limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs. A guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian. A guardian, at all times, shall act in the ward's best interest and exercise reasonable care, diligence, and prudence.

Conservatorship of an Adult

This article is about a Conservatorship for an adult. In order to understand exactly what a conservatorship is and how one is created we will begin with some definitions.

A Conservator is defined under Colorado Revised Statute (CRS) § 15-14-102(2) as:

(2) "Conservator" means a person at least twenty-one years of age, resident, or non-resident, who is appointed by a court to manage the estate of a protected person. The term includes a limited conservator.

A Protected Person is defined under CRS § 15-14-102(11) as:

(11) "Protected Person" means a minor or other individual for whom a conservator has been appointed or other protective order has been made.

From these two definitions, we can arrive at a working definition for a "Conservatorship" as being the legal state whereby a Court has appointed a person to manage the assets of another. This is a rough definition but it does contain the important aspects of a conservatorship. Where a conservatorship is appropriate or possible is addressed next.

A "Respondent" is the person for whom a Conservatorship is sought. After a Conservator is appointed by a court, the Respondent becomes a Protected Person.

A Conservatorship is appropriate when, by a preponderance of evidence, it is shown the Respondent is:

Unable to manage property and business affairs because he or she is unable to effectively receive an evaluate information or both or communicate decisions, even with the use of appropriate and reasonably available technological assistance due to some disability or impairment (see CRS § 15-14-401(1)(b)(I)).

Beneficiary Deeds

By Bruce Alan Danford, LLM (rev'd 9/26/11)

"Neither fish nor fowl" best describes a new estate-planning tool passed by the Colorado legislature as House Bill 04-1048 and signed into law on May 12, 2004. This article will describe in short what beneficiary deeds are, how they operate, some applications for their use as well as some of the pitfalls associated with them. This article is not meant to be comprehensive or exhaustive but is more in the manner of a primer regarding beneficiary deeds. The Colorado statutory beneficiary deed form is included at the end of this article.

In the Colorado statutes, beneficiary deeds are found in Colorado Revised Statute §15-14-401 et.seq. The statutory definition of a beneficiary deed is:

" Beneficiary deed " means a deed, subject to revocation by the owner, which conveys an interest in real property and which contains language that the conveyance is to be effective upon the death of the owner and which may be in substantially the form described in section 15-15-404 . C.R.S. §15-14-401(1).

A beneficiary deed allows an owner of property to have the property go to someone else (sometimes called the beneficiary or grantee) upon the death of the owner. A beneficiary deed becomes effective only upon the death of the owner of the property. Unlike other types of deeds, a beneficiary deed must be recorded prior to the death of the owner for it to be effective.

Example 1:

Olga is the owner of a small house. Olga wants the house to go to her son, Bob, when she dies. Olga executes a beneficiary deed naming Bob as the beneficiary of the deed. Olga then has the deed recorded at the County Clerk and Recorders Office. Olga then dies; Bob becomes the owner of the house.

Up until the time of death, the grantee has no rights in the property. This means the owner of the property can revoke the deed at any time prior to their death. If the owner wishes to revoke the beneficiary deed, the owner must either execute and record a new beneficiary deed or execute and record a revocation of the beneficiary deed. A beneficiary deed cannot be revoked by a will or be overridden by the terms of a will.