| Legal Ideas and Information - May 2005 |
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The Terry Schiavo Case: In Colorado, A Living Will Is Not The Correct Solution
As a result of publicity over the Terry Schiavo case, I have received several inquiries from clients and others about the use of living wills and advance directives in Colorado. After reviewing the living will and medical durable power of attorney forms published by the Colorado Bar Association, and Colorado's statutes governing living wills and other advance directives, I concluded that, contrary to popular opinion, having a living will probably would not avoid a Terry Schiavo-type legal battle in Colorado. More is needed. Media reports describe Terry Schiavo's condition as a "persistent vegetative state;" her brain stem remained functional and provided autonomic responses. The Colorado Medical Treatment Decision Act, which authorizes and governs the use of living wills in Colorado, appears to authorize such declarations only to address a future situation in which the declarant is in a terminal condition, defined as "an incurable or irreversible condition for which the administration of life-sustaining procedures will serve only to postpone the moment of death." Life sustaining procedures are specifically defined to exclude a feeding tube. Colorado law also defines death as requiring a cessation of all functions of the brain, including the brain stem. Thus, even if Ms. Schiavo had signed a "living will," it probably would not have avoided a legal battle in Colorado over withdrawal of her feeding tube. Need a Personal Representative's Deed for a Closing? REALTORS® regularly call the firm to assist with a scheduled closing where the seller does not yet have title to the property because the property hasn't been administered from an estate of a deceased person. We find that often there is a misunderstanding that the Personal Representative's Deed and Certified Letters are "off-the-shelf" items that an attorney can produce on a moment's notice to facilitate the closing. On the contrary, a Personal Representative's deed is a fiduciary act that must take place in the context of proper estate administration. An attorney who would produce a document selling or distributing estate property, without an opportunity to supervise estate administration as a whole, would be assuming potential liability for improper administration of the property. This publication is intended to provide accurate and authoritative information on the subject matter covered. It is distributed with the understanding that the publisher and distributor are not rendering legal, accounting or other professional service, and assume no liability in connection with its use. Copyright © 2005. This is an advertisement. |
IN THIS ISSUE
Commission in Purchase Contract
Question: I have an Exclusive Right-to-Buy (Buyer Agency) agreement with my buyers. Over the last three months, I have shown them approximately 30 homes. My clients now wish to make an offer on an unlisted property which is for sale by its owner. My buyers do not want to pay my commission; they want the seller to pay my commission. Is it permissible for me to draft an additional provision which obligates the seller to pay me a cooperating commission at closing? Yes. One of the myths of Colorado real estate license law is that it is not permissible for brokers to address commission issues in the additional provisions section of the sales contract. While it is true that the Real Estate Commission discourages brokers from addressing commission issues in the contract, and while it is also true that it is generally not appropriate to do so, brokers may address commission issues in the contract if they are doing so at the direction of one of the parties to the transaction. Colorado Real Estate Commission Rule F-2 reads as follows:
(a) The "Additional Provisions" section of a Commission-approved form must contain only those transaction-specific terms or acknowledgments that result from negotiations or the instruction(s) of the party(ies) to the transaction. (b) A broker who is not a principal party to the contract may not insert personal provisions, personal disclaimers or exculpatory language in the "Additional Provisions" section of a Commission-approved form. The prohibitions in section (b) do not apply. The clause is not a personal provision for the broker. The Exclusive Right-to-Buy Agreement obligates the buyer to pay the broker if the selling broker cannot be compensated from some other source. The obligation for the seller to pay the broker a commission is a provision which benefits the buyer and is an agreement between the buyer and the seller. It is not a disclaimer, nor is it an exculpatory clause. Section (a) permits the clause so long as it comes from the instruction of the buyer client. |
