Probate, Trusts, And Fiduciaries - Digest of Bills

Digest of Bills - 2006

PROBATE, TRUSTS, AND FIDUCIARIES

S.B. 06-121 Health care benefits decisions - appointment of surrogate decision-makers - immunity. Defines and authorizes persons to act as surrogate decision-makers for health care benefit decisions ("surrogate decision-maker") for individuals who lack the decisional capacity to make informed health care benefit decisions. Allows an attending physician or his or her designee to appoint a surrogate decision-maker if a proxy decision-maker for medical treatment or an interested party does not exist or is unavailable. Requires that the determination of a person's lack of decisional capacity be made by the attending physician and documented in the person's medical record. Further requires any appointment of a surrogate decision-maker by a physician or his or her designee to be made in writing. Grants immunity to a surrogate decision-maker acting in good faith and to parties relying in good faith on the information provided by a surrogate decision-maker.

APPROVED by Governor May 4, 2006
EFFECTIVE May 4, 2006

S.B. 06-211 Dual resident trusts - income tax calculation. Provides for the determination of tax on trust income that is subject to double taxation in both Colorado and one or more other states.

Makes the provisions applicable to income tax years commencing on or after January 1, 2006.

APPROVED by Governor May 25, 2006
EFFECTIVE May 25, 2006

H.B. 06-1137 Presentation of claims - public administrators - rule against perpetuities - total return trusts - liability of nonprobate transferees - foreign personal representatives. Amends the claims statutes for decedents' estates to clarify the manner in which claims must be presented and to require that, except for limited exceptions, normal pre-death claims must be presented within one year after the date of death. Amends the claims statutes for conservatorship estates to clarify the manner in which claims must be presented and the requirements for the content of a valid claim.

Eliminates the requirement that a public administrator live in a judicial district for 5 years prior to appointment. Permits a public administrator to either be a resident or maintain a principal place of business in the judicial district in which he or she is appointed.

Clarifies the Colorado statutory rule against perpetuities.

Makes the clarifications apply retroactively unless the person holding the interest or appointed power elects otherwise. Changes the Colorado total return trust statute to comply with recent federal internal revenue service regulations.

Extends the ability of an insolvent estate to recover assets from nonprobate transferees to pay claims and statutory allowances to the decedent's surviving spouse and children.

Adds the definition "domiciliary foreign personal representative" to the Colorado probate code and clarifies the procedure for filing documents to allow a foreign conservator to obtain the ability to act in Colorado.

APPROVED by Governor April 6, 2006
EFFECTIVE July 1, 2006

H.B. 06-1273 Last remains - right of disposition - priority and declarations. Changes the standard for challenging the final disposition arrangements made by a decedent from whether the arrangements are unreasonable under the circumstances to whether the decedent did not provide adequate resources for the arrangement.

Applies the "Disposition of Last Remains Act" ("act") to declarations regardless of whether the declaration was executed in Colorado or by a Colorado resident. Requires a declaration to be signed and dated by the declarant.

Grants immunity from civil liability and administrative discipline to a person who relies upon a disposition that appears legal. Authorizes a third party, when presented with a declaration, to presume that it has not been revoked. Requires challenges to the validity of a declaration to be resolved in a probate court. Requires disputes among persons in classes with differing priority to be resolved in probate court. Grants a third party immunity from liability for failing to follow a declaration that is known to have been challenged.

Changes the order of priority for the vesting of the right to control final disposition by adding, at the lowest priority, any person who is willing to assume legal and financial responsibility for the decedent.

Terminates the right of a person to control final disposition if that person cannot be found or is unwilling or unable to provide for the disposition. Clarifies that this termination changes the number needed to make a majority of a class necessary to control disposition. Sets standards for the termination and passing of the right to others in the class or the next class. Grants civil immunity to a third party who provides for final disposition upon authorization from a person who claimed to have the right to control the final disposition.

Generally clarifies the standards established in the act.

APPROVED by Governor May 11, 2006
EFFECTIVE August 7, 2006
NOTE: This act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest.