November is National Family Caregivers Month

On November 1, President Barack Obama issued a Presidential Proclamation in which he named November as National Family Caregivers Month, to honor those who work to assist those in need in our communities. In the Proclamation, President Obama encourages all of us to "pay tribute to those who provide for the health and well-being of their family members, friends, and neighbors." For more information, go to National Family Caregivers Month.

The New Compensation and Cost Recovery Legislation

Marc Darling will be making a presentation on December 5, 2011 to the Trust & Estate Section of the Colorado Bar Association as part of their CLE Luncheon Series. His presentation is entitled, "The New Compensation and Cost Recovery Legislation (C.R.S. §15-10-601, et seq.)." Topics covered will include a General Discussion of the Statute, Recovery of Reasonable Compensation and Costs, Factors in Determining the Reasonableness of Compensation and Costs, Fee Disputes: Process and Procedure, Assessment of and Limitations on Compensation and Costs, and Strategies That are Evolving to Deal with these Provisions.

No Protection Under Bankruptcy for Self-Settled Trust

Alaska is among a handful of states that explicitly provide creditor protection to beneficiaries of trusts that are "self-settled" meaning in this context that the same person created the trust, contributed the property to the trust, and is one of the beneficiaries of the trust. In 2005, Mr. Mortensen, an Alaska resident and at the time, solvent, created an Alaska Asset Protection Trust and contributed cash and real property to the trust. Mr. Mortensen and his heirs were beneficiaries of the trust. In 2009, Mr. Mortensen filed for bankruptcy, with more than $250,000 in debts. He did not list the trust as one of his assets in the bankruptcy estate. The Bankruptcy Trustee attacked the trust, claiming in part that because Mr. Mortensen created the trust with intent to protect the assets against his future creditors, the transfers were void under new Bankruptcy Code Section 548(e). The Section was adopted as part of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act. The Alaskan Bankruptcy Court agreed with the Bankruptcy Trustee in Battley v. Mortensen, D. Alaska, No.A09-90036-DMD. The Court commented that Section 548(e) "closes the self-settled loophole" and made it clear that it was the intent to protect the trust assets from creditors that caused the trust to be included in the bankruptcy estate. Although this case is limited in scope to the Bankruptcy Code, we will keep watch for developments in this area. At this time, Colorado does not have explicit asset protection for assets in a self-settled trust. If you’d like to read more about the the decision in the Mortensen case, go to http://www.wadeash.com/PDF/battley-mortensen.pdf.

Elder Law Society Career Panel

Marc Darling and Josie Faix are participating in a panel discussion on Tuesday, November 8, 2011, with the Elder Law Society. The Elder Law Society is a student organization of the University of Denver Sturm College of Law. The panel will discuss the practice of Elder Law with attendees.