BILL SUMMARY for HB09-1198
SENATE COMMITTEE ON JUDICIARY
|Votes: View--> ||Action Taken: |
|Adopt prepared Amendment L.007 (Attachment E). Th|
Adopt prepared Amendment L.009 (Attachment F). Th
Refer House Bill 09-1198, as amended, to the Commi
|Pass Without Objection|
Pass Without Objection
04:20 PM -- House Bill 09-1198
Senator Morse explained the provisions of Senate Bill 09-1198. He explained that it is a uniform act bill concerning power of attorney for individuals. He noted that there is a lot of power of attorney abuse and this bill addresses that.
04:22 PM -- Stan Kent and John DeBruyn, representing the Colorado Bar Association, spoke in support of the bill. Mr. Kent discussed the provisions of the bill. He explained that this bill addresses power of attorney. It seeks to preserve the low cost method of providing surrogate decision making while at the same time preventing abuse of the power of attorney. He stated that the bill explains the concept of power of attorney on page 43 of the bill and the bill includes a standard form for executing a power of attorney. Mr. Kent indicated that this bill will foster the use and acceptance of the power of attorney. According to Mr. Kent, a bank could refuse to accept a power of attorney, without penalty, if there is reason to doubt the authenticity. On the other hand, if there is no reason to doubt the authenticity then the bank must comply with the power of attorney. Mr. Kent stated that this bill goes much further in providing protection for power of attorney than in the current statute. Related to that, he noted that this bill gives people standing to go to court and account for the power of attorney to make sure that abuses are not happening. Mr. Kent explained that, under the bill, the power of attorney document must expressly give the individual who holds the power of attorney the right to engage in activities that have resulted in abuse, such as giving of gifts.
Senator Carroll asked if the bill would cause existing powers of attorney to be modified. Mr. DeBruyn stated that existing powers of attorney concerning making of gifts and changing of trusts would not be included in existing powers of attorney, unless they were expressly stated in the power of attorney document. Senator Lundberg asked if existing powers of attorney will be interpreted differently under the new law. Mr. DeBruyn explained that existing powers of attorney would still be valid. Mr. Kent stated that the new law would provide additional protections to existing powers of attorney. Senator Newell asked if this bill would cause increased litigation. Mr. Kent stated that he does not believe that the bill would cause more litigation, but rather if a problem does arise there is now an expended universe of people who can look into problems with a power of attorney and go to court. The judge could then modify or terminate a power of attorney if abuse is found.
Senator Carroll asked about specifics of the standard form, including a provision that entitles the agent to reasonable compensation. She noted that she believes that any fee should be an express requirement in the power of attorney form. Mr. Kent also referred to other potential legislation that would look at reasonable fees. Senator Carroll asked about the current laws concerning compensation for powers of attorney. Mr. DeBruyn noted that currently reasonable compensation is available. Senator Morse noted that the provision concerning reasonable compensation may cause some individuals to realize that they do not need to rely on family, but instead could hire a more appropriate individual.
The committee continued to discuss the issue of reasonable compensation with the witnesses. Senator Hudak asked about the need for a specific power of attorney form in statute. Mr. Kent noted that the form is made to be user friendly for the public, but an attorney could still draft a different power of attorney for a client. Mr. DeBruyn stated that the form is coordinated with the statute and also incorporates warnings for the public. Senator Lundberg asked how this bill relates to a medical power of attorney. Mr. Kent stated that this bill is not related to medial power of attorney.
Mr. DeBruyn noted that the law makes powers of attorney durable so that they are still in effect when the person becomes incapacitated. Mr. DeBruyn discussed the role of the banks in this bill. He noted that the banks are interested both in protecting the bank from liability, but also in protecting the customer. Mr. DeBruyn discussed a provision in the bill that allows the banks to ensure that powers of attorney are valid to protect their customers.
Mr. DeBruyn discussed Amendment L.007 (Attachment E). He stated that the amendment deals with when an individual may step in and act under the power of attorney for circumstances when the person who executed the power of attorney is not available, but not incapacitated. He explained that many of the provisions in the amendment are recommendations from the banks. Senator Renfroe asked about the definition of person within the bill.
Mr. DeBruyn discussed Amendment L.009 (Attachment F). He noted that this amendment changes the effective date to January 1, 2010; however, people could use the new power of attorney form prior to that time. According to Mr. DeBruyn, the amendment allows powers of attorney to incorporate other provisions by reference. He noted that the amendment also makes some technical changes to the standard form.
Senator Renfroe asked about existing powers of attorney and trusts to clarify if those can still be in effect.
Senator Lundberg noted that he is not opposing the consent calendar; although he is uncomfortable with it.
|TIME: || 05:29:05 PM|
|MOTION:||Refer House Bill 09-1198, as amended, to the Committee of the Whole with a recommendation that it be placed on the consent calendar. |
Final YES: 7 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS
The committee adjourned.