A brief resume is available in this opinion article from the Denver Post. I have worked with Monica, know her personally, and consider her a friend. And I’m proud that she was appointed to the state’s highest court.

Welcome Magistrate Hernandez!

A Colorado attorney familiar with the Denver Probate Court made the following observations about the post and the Denver Post article:

Sadly, as much as the court tries to do on the matter, there just aren’t enough resources and the public does not support the use of more resources for oversight on these cases. If there were a team of auditors, then that would be fantastic. I hold Judge Stewart in the highest professional regard as a person, attorney, and judge, and think that she’s in an impossible position on this issue. Unfortunately, it is the rogue or non-compliant lay person fiduciaries that usually spoil the entire lot. These newspaper articles that pop up every couple of years detailing the court’s failures don’t tell the entire story, and I think, are much too one-sided.

There have been hiring freezes on and off in the Colorado courts since [2002]. It is a crippling reality that hamstrings the courts, and how the judges can best serve the public. If the issues you discuss are that important to the public and government, then they would find a way to fund oversight through the judicial branch. Again, if there is no public outcry, these types of issues become the status quo. The court staff are expected to take on more and more responsibility without a pay increase, and there is no way that is going to be sustainable.

My original post was focused on the inevitable tightening of report monitoring when this kind of article comes out. But the reader raises a couple of key points with regard to the underlying issues.

The first is that it is ultimately the appointed guardian or conservator who is responsible for protecting his or her ward. As with any other fiduciary, it is up to that individual to discharge the duties of the office in the best interests of the person he or she represents. Court oversight is important to ensure that initial bad selections, however they happen, are screened out. The reality though is that an institutional monitoring system is never going to be responsive enough to stop people in a position of trust who want to steal from those they are supposed to protect. That would require court personnel providing real time monitoring for spending decisions.

But more to the point, the allocation of public resources to the judicial branch from the legislative branch is the ultimate public policy expression of our priorities on this (and any other) topic. While it is fine to want more court oversight of appointed fiduciaries, it is necessary either to provide the funding to accomplish those goals or to sacrifice current services to free up staff time. As Judge Stewart points out in the article, the guardianship tracking database has not been funded and her staff is depleted (and under the hiring freezes likely cannot be replaced.) The State Court Administrator’s office cannot provide meaningful tracking information state-wide because different codes are used in different ways. As the available staff hours decrease and the workload increases or remains the same, the Court is faced with the decision allocating those resources. This decision could realistically translate into whether to provide court services to current litigants or provide monitoring of filed reports.

In this time of fiscal crisis and mandatory balanced budgets, our priority, as expressed through our funding, is not on monitoring systems — or even court personnel. In order to provide more regular reporting in order to catch those abusing the system, those funding priorities will have to change.

The article goes through many of the issues that the Denver Probate Court has encountered, including budget cuts and reductions in staff. It also talks about some of the initiatives through that court and the state court administrator’s office aimed at improving the tracking and reporting of Colorado protective proceedings.

It’s worth a read. It’s also worth noting that inevitably other courts will pick up on the article and could move reviewing whether or not guardianship and conservatorship reports have been filed in their courts to a higher priority. As detailed in this post there are numerous possible sanctions for failing to file reports on time, including removal and surcharge. So file the reports on time and always let the court supervising your protective proceeding know about an important change – like a change of address or the ward passing away. This will help keep you in the court’s good graces.

As the Court points out, when the Colorado legislature adopted the Uniform Guardianship and Protective Proceedings Act on January 1, 2001, it imposed a new requirement that every conservator should post a bond to insure the faithful discharge of his or her duties. If a court decides not to impose a bond it must make specific factual findings that it was not required in the particular case because the conservator had demonstrated to the court indications of extra trustworthiness and reliability.

One of the duties that is imposed upon conservators is the filing of an inventory, financial plan, and annual reports or accountings as directed by the court or by law. C.R.S. §§ 15-14-418 to -420. The Denver Probate Court comments in its announcement that “[d]elinquency in filing reports exhibits a lack of trustworthiness and reliability and imposes extra responsibilities on courts at a time when our resources and staffs are stretched to the limit.”

Accordingly, the Denver Probate Court indicates that it will immediately order conservators who are currently delinquent to file a bond. Further, if the Court imposes a bond on a conservator for being delinquent, it will order that the conservator pay the bond personally and not from the protected person’s estate. If the conservator cannot qualify for a bond, he or she will be promptly replaced by the Court. It is important to realize that for a large estate, the premium for the bond could personally cost the conservator $5,000 per year or more.

While it is always of the utmost importance to comply with statutes and court orders, particularly when acting in a fiduciary capacity, this position raises the personal stakes for conservators serving in Denver. If you are a conservator, the reporting requirements in your particular case, along with the dates you must report by, can be found in the orders your received from the Court appointing you as conservator. You can also contact the court clerk’s office who should be able to look up the dates and reporting requirements for you.

The Court’s announcement can be found here.

In Colorado, once a party to a lawsuit has won a judgment, he or she can convert that into a judgment lien by filing what is called a transcript of judgment with the clerk and recorder in any given county. For a period of six years (or twenty years if the judgment is revived), any property in that county owned or acquired by the person the judgment is against (called the judgment debtor) will automatically have a lien on it to satisfy the judgment.

So let’s say dad has two children and one of them has been down on his luck and has moved back home. Dad may not appreciate the full extent of kid’s bad luck but wants to help him out and gives him a free room. Dad wants to do some estate planning and decides to put both kids on the title to the house with him as joint tenants so that when he passes away the house will automatically pass to them. Later, dad changes his mind and the kids all pass title to the house back to dad.

When dad passes away, probate is opened and the estate needs to sell the house to pay debts. The house is put up for sale and goes under contract. When the title work comes back it shows that a transcript of judgment was recorded in the previous six years while kid was on title. The title company insists that it will not issue the title policy until the judgment is paid off. Since there is not enough equity in the house, and since there is more than one beneficiary, the estate suddenly has a very large and very unexpected problem.

The question of whether or not there is an enforceable lien is a very complicated question. It might involve a lawsuit to quiet title or negotiating with creditors to settle things. What is important to remember is that putting someone else on the title to your property — whether for estate planning or other purposes — can expose that property to their judgments. Even judgments that have happened in the past.

I’m going to leave the default WordPress Hello World! title to this post as an homage to all the programmers and system administrators from my past life.

As a lawyer licensed in Colorado and California I constantly run into follies and foibles for practitioners and clients alike.  My hope is to share some lessons learned for others wandering into my practice area, as well as to share information with the public at large on important issues.

My current practice is focused mostly on elder law and probate litigation.  Elder law concerns older folks and folks with disabilities.  Probate law is all about people who have passed away leaving an estate or people who require special protections, which includes guardianships and conservatorships.  My firm also handles estate planning and can help with public benefits like Medicaid, SSI or special needs trusts (SNTs).  Fortunately or not, this practice touches many other areas of law.

As for the standard disclosures — this is a blog and cannot be construed as legal advice.  The reason that lawyers want to meet with clients is because there is no way to evaluate any of the myriad possibilities of fact patterns, and thereby provide you with appropriate legal counsel, without that kind of meeting.  You can hire a lawyer or you can represent yourself but please don’t think anything contained on this site is legal advice! Similarly, I have no fact checker and you should verify the details. And don’t post anything confidential — there’s no attorney-client privilege here!