May 2009

IN THIS ISSUE:

Message from the President
Legislative News
A couple of firsts...
Alzheimer's Association Supports UAGPPJA
New Drafting and Study Committees
ULC in the News
Winner of ULC Law Student Writing Competition Announced
Look Who’s Turning 100!



MESSAGE FROM THE PRESIDENT
Martha Lee Walters

Happy Spring to All of You!

We have completed our drafting committee in-person meetings for the year, and the Style Committee is now hard at work getting the drafts ready for your close inspection and perfection in Santa Fe. With an eye on our budget and those of our states, we have limited committee meetings for acts that will not go final this year and have encouraged the use of telephone conferences to a greater extent than has been done in the past. Committee chairs have been understanding and cooperative, as have all of you. I am interested in your thoughts about how effective these conference calls have been. I have also noted that there have been many more frequent email exchanges between committee meetings and I would also like to know your reactions to their use. Are email communications helpful in identifying or narrowing issues? Do they save meeting time or improve our products?

Our legislative work is also proceeding apace. We have a goal of 300 introductions and we are more than two thirds of the way there with 248 introductions. We have a goal of 125 enactments and we are more than half way there with 76 enactments. I know how hard this work is, particularly with the pressing budgetary issues that our states are facing, but for our drafting work to be relevant we must give it legislative life, so please grab the baton or pass it on and let’s cross the line.

Finally, to fill you in a bit on some of the work that goes on behind the scenes and between meetings, some of our Commissioners made a very well received presentation at the spring meeting of the International Section of the American Bar Association to continue to educate those with a role and interest in treaty negotiation and ratification about the importance of state law in treaty implementation. Other Commissioners have been working closely with the Treasury Department to find a solution to the needs of law enforcement to be able to identify the beneficial owners of legal entities while at the same time recognizing the difficulties posed by requiring that such information be part of the public record. And still other Commissioners and our staff have been doing an excellent job informing the public of our work. Michigan recently hosted a “Law School for Legislators” day in the state capitol, and commissioners and staff were on hand to discuss the importance of uniform acts and the process of the ULC. Commissioners in Virginia recently spoke before the Virginia state Chamber of Commerce on the ULC as well as the Virginia Bar Association Board of Governors. Not only are there lots of examples of commissioner outreach, but we’ve also seen numerous articles in the press regarding the ULC and specific uniform acts such as the Uniform Prudent Management of Institutional Funds Act (see “ULC in the News”).

It has been an exciting and productive new year thus far. I plan to enjoy every coming day and I hope you can do so as well.

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Legislative News
Update on the “Enchilada Challenge”

Planning for the 2009 legislative year got started as early as May 2008, when the Legislative Council met to discuss legislative plans for the next year. At that meeting, new Targets were added to our target list, new enactment committees were created, and new programs for the 2008 annual meeting were created – including a “Legislative Workshop.” The Legislative Council expanded the planning documents for 2009, incorporating plan elements from the Public Information Committee, the State Delegations Committee, and the Relations with Other Organizations Committee. Did all this early planning pay off? You be the judge.

We’re about half way through the 2009 legislative year, and we already have 76 enactments and 248 introductions. At least 20 more acts have passed both houses and are awaiting transmittal to the Governor, and many more are actively working their way through the committee process. We hope to announce good numbers at the annual meeting.

The enactment of the Uniform Probate Code in Massachusetts is one of the most compelling stories of the year. It took more than a decade of work, but the Massachusetts legislature this year finally passed the Uniform Probate Code. As noted in a recent editorial in Massachusetts Lawyers Weekly, “what is truly noteworthy is the amount of time it required to accomplish the task. It took a Homeric odyssey for the UPC to come to Massachusetts. There has been talk of the need for the code as far back as 1990. Many lawyers toiled on the project, thanklessly doing research, working on bar-association committees, and lobbying the Legislature to get this done. … Hats off to the attorneys who were able to make this sensible change part of Massachusetts law.” Thanks to our Massachusetts commissioners – Steve Chow, Robert Sitkoff, and Ed Smith – who helped enact the UPC.

Because the Massachusetts UPC included most of the free-standing acts from the UPC – such as the Uniform Disclaimer of Property Interests Act, the Uniform Estate Tax Apportionment Act, and the Uniform Guardianship and Protective Proceedings Act – its current enactment total for the year stands at nine enactments. However, there’s a good chance that by the end of the year that number will be exceeded.

New Mexico had another exceptional year, also putting up nine enactments. Included in that number were the Uniform Athlete Agents Act, the Uniform Foreign Country Money Judgments Recognition Act, and the Revised UCC Articles 3 and 4. The New Mexico commissioners may have been spurred on this year by Commissioner Jack Burton’s infamous “enchilada challenge.”

The “enchilada challenge” was born more than two years ago, when Jack challenged the commissioners of all other jurisdictions to a contest to see which jurisdiction could enact the greatest number of uniform laws by the time of the 2007 annual meeting. The pay-off? Jack promised to buy an enchilada dinner for any commissioner from any jurisdiction with a greater number of enactments than New Mexico.

New Mexico ended the 2007 legislative year with excellent numbers, enacting five uniform acts that year. Unfortunately, not one, not two, not three, but FOUR states ended the year with better numbers. 2007 was of course the year that Nevada broke an all-time record with 12 enactments. Arkansas ended the year with 8 enactments; Indiana ended the year with 7 enactments; Idaho ended the year with 6 enactments; and South Dakota tied New Mexico with 5 enactments.

Knowing that the 2009 annual meeting would be held in Santa Fe, Jack decided to go “double or nothing” on the 2009 legislative year.

As of now, this double-or-nothing bet just might pay off. However, keep an eye on Oklahoma, which may just pass both Massachusetts and New Mexico by the end of the year. We will keep you posted.

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A Couple of Firsts...

The 2009 legislative year witnessed a few “firsts.”

  • The Revised Uniform Common Interest Ownership Act of 2008 was enacted right out of the gate in Delaware.
  • The 2008 Amendments to the Uniform Interstate Family Support Act have been enacted first in North Dakota.
  • The 2008 Amendments to the Uniform Principal and Income Act have been enacted in eight states to date: Colorado, Idaho, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, and Virginia (Utah being the first to pass this act).
  • The Uniform Unsworn Foreign Declarations Act of 2008 has been enacted in three states: Colorado, New Mexico and Utah (Utah being the first to pass this act).

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Alzheimer's Association Supports UAGPPJA

The Alzheimer’s Association is the latest organization to publicly support the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). In its letter of support, the Alzheimer’s Association says:

The Alzheimer’s Association supports the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act by all states.

Due to the impact of dementia on a person’s ability to make decisions and in the absence of other advanced directives, people with Alzheimer’s disease may need the assistance of a guardian. Advocating for the adoption of a more uniform and efficient adult guardianship system will help remove uncertainty for individuals with dementia in crisis and help them reach appropriate resolution faster.

Adult guardianship jurisdiction issues commonly arise in situations involving snowbirds, transferred/long-distance care giving arrangements, interstate health markets, wandering, and even the occasional incidence of elderly kidnapping. The process of appointing a guardian is handled in state courts. The U.S. has 55 different adult guardianship systems, and the only data available is from 1987, which estimated 400,000 adults in the U.S. have a court-appointed guardian. Even though no current data exists, demographic trends suggest that today this number is probably much higher.

Often, jurisdiction in adult guardianship cases is complicated because multiple states, each with its own adult guardianship system, may have an interest in the case. Consequently, it may be unclear which state court has jurisdiction to decide the guardianship issue. In response to this common jurisdictional confusion, the Uniform Law Commission developed UAGPPJA. The legislation establishes a uniform set of rules for determining jurisdiction, and thus, simplifies the process for determining jurisdiction between multiple states in adult guardianship cases. It also establishes a framework that allows state court judges in different states to communicate with each other about adult guardianship cases.

The more states that enact UAGPPJA in identical format, the simpler the adult guardianship process will become. In an ideal future, enactment of UAGPPJA by all states will allow the question of jurisdiction in adult guardianship situations to be settled more easily and provide predictable outcomes in adult guardianship cases.

The Alzheimer’s Association is joined by the National Guardianship Foundation, the National College of Probate Judges, the National Academy of Elder Law Attorneys, the Conference of Chief Justices, and the Conference of State Court Administrators in supporting this Act.

The UAGPPJA has now been adopted in eight states: Alaska, Colorado, Delaware, the District of Columbia, Montana, North Dakota, Utah, and Washington. It has been introduced in 16 more states this year. For further information on the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, please contact Eric Fish in the Chicago office.

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New Drafting and Study Committees

At the 2009 Midyear Meeting, the Scope and Program Committee recommended and the Executive Committee authorized the appointment of one new study committee and one new drafting committee.

The new study committee is:

Study Committee on Marital and Premarital Agreements
This study committee will study and make recommendations on the potential scope and feasibility of uniform or model legislation concerning the regulation of marital and premarital agreements. Some issues that the study committee will consider include whether the differences in the concept of “fairness” extant in the existing probate and family law models can be resolved, and to what substantive end; and the enactability of a combined marital and premarital agreement act.

Although no study committee was appointed, the JEB for Uniform Family Laws was requested to act as a Study Committee on Visitation and Custody Issues for Deployed Military Personnel. The JEB is studying the issue of visitation and custody orders as it pertains to military personnel when deployed.

The new drafting committee is:

Drafting Committee on Harmonization of Unincorporated Business Entity Acts
This drafting committee will work to harmonize provisions of the various unincorporated business entity acts already promulgated by the ULC, such as the Uniform Partnership Act, the Uniform Limited Partnership Act, the Uniform Limited Liability Company Act, the Uniform Limited Cooperative Association Act, the Uniform Unincorporated Nonprofit Association Act, and the soon to be completed Uniform Statutory Trust Entity Act.

Also the Drafting Committee on Relocation of Children Act was discharged.

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ULC in the News

In recent months the ULC, along with specific uniform acts, have been spotlighted in numerous news articles. Highlights of some recent news articles on ULC acts, including articles on the Uniform Prudent Management of Institutional Funds Act and the Uniform Debt Management Services Act, can be found below. Click on the highlighted link to read the entire article.

Consumers Digest
June 2009
“Debt Relief: How to Dig Out of a Hole”
By Mark Henricks

...Help is on the way. Other institutions are taking aim at debt-settlement services, too. National Foundation for Credit Counseling has identified debt settlement as one of its top initiatives this year. … You can expect more states to adopt debt-management acts that specifically regulate debt-settlement practices, such as fees and performance claims.

Colorado, Delaware, Rhode Island and Utah have adopted legislation that is based on the Uniform Debt Management Services Act, a piece of legislation that aims to standardize state laws on the subject.

To see the full article, please contact Katie Robinson in the Chicago office.

• • •

PROVIDENCE BUSINESS NEWS
April 19, 2009
“Bill allows nonprofits to tap ‘underwater’ funds Measure has passed in 29 states; 15 considering”
By William Hamilton

Some universities, charitable foundations and nonprofit corporations are pressing state lawmakers to relax restrictions on how they can use endowment funds that are now “underwater” in the wake of the recent investment losses.

Proposed legislation would rewrite a state law enacted in the early 1970s that was designed to protect charitable gifts. … The bill, introduced in the House and the Senate, is a version of a new spending standard drafted by the National Conference of Commissioners on Uniform State Laws – otherwise known as the Uniform Law Commission – several years ago as an update to the law governing institutional funds enacted by most states in the 1970s.

Click here to read entire article.

• • •

The Dallas Morning News
April 13, 2009
“Bill aims to regulate debt settlement firms, protect consumers”
By Pamela Yip

Debt settlement companies, which have grown by leaps and bounds, are the target of proposed legislation that would set strict rules on how they operate. …

The National Conference of Commissioners on Uniform State Laws has put forth the Uniform Debt Management Services Act, which gives states guidance on the regulation of the consumer-debt management industry.

Click here to read entire article.

• • •

Nashville Business Journal
April 3, 2009
“State reins in debt counselors Proposed legislation toughens standards to stop scam artists”
By Jeannie Naujeck

Tennessee legislators are considering a bill that would regulate consumer debt management and credit counseling services and bring some order to a burgeoning industry likened to the Wild West.

The new bill would enact the Uniform Debt Management Services Act, a comprehensive statute that caps fees and requires such companies to carry insurance and a surety bond, among other regulations.

Click here to read entire article.

• • •

Massachusetts Lawyers Weekly
March 30, 2009
“Uniform Probate Code, at last”

When it came to trusts and estates law, Massachusetts was a mishmash of statutes and caselaw. While the body of law was not “broken,” it was not the portrait of organization either. With this year’s passage of the Uniform Probate Code, practitioners can finally look to a single source for probate law.

To see the full article, please contact Katie Robinson in the Chicago office.

• • •

Sunday Star
March 22, 2009
“States weigh uniform adult guardianship laws”
By Chris Knauss

As the elderly population increases, more and more Baby Boomers are facing the reality of caring for a disabled parent. …

To help remedy the problem, the Uniform Law Commission has drafted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which provides a mechanism for resolving multi-state jurisdictional disputes. The objective is that only one state will have jurisdiction at one time.

To see the full article, please contact Katie Robinson in the Chicago office.

• • •

Inside Higher Ed
March 3, 2009
“Tight Leash”

Just when they need money most, some colleges and universities are incapable of tapping their rainy day funds.

Currently 21 states are still governed by decades-old laws that restrict endowment spending, according to the Uniform Law Commission. With revenues drying up for many colleges, these regulations are likely to result in fewer scholarships being awarded next year at some institutions, according to fund raisers and legal analysts.

Click here to read entire article.

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AP Impact
March 1, 2009
“Some nonprofits can’t touch their money”
By Martha Waggoner, AP Writer

The North Carolina Symphony has all the money it needs. But in this economy, the orchestra isn’t allowed to touch it. The value of its endowment stands at nearly $6.9 million, a fund the symphony planned to tap this year to help pay its musicians and put on concerts. But because of the slump on Wall Street, the endowment is worth less than the original donations that created it. That means, under North Carolina law, that the money is off limits. …

Since early 2007, 26 states and the District of Columbia have passed laws that give nonprofit organizations more flexibility in using money from endowments that are underwater. Because of the economic meltdown, 12 other states are considering such laws, according to the National Conference of Commissioners on Uniform State Laws.

Click here to read entire article.

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Investment News
February 20, 2009
“States mull power-of-attorney rule shift”
By Lisa Shidler

A dozen states are considering a rule change that would give financial advisers more authority to intervene if they suspect that a client is being hoodwinked by the person picked to be his or her power of attorney.

The Uniform Power of Attorney Act gives advisers – as well as banks, brokers, and other intermediaries – the authority to refuse to accept a client’s power of attorney if they suspect that things are not on the up and up.

Click here to read entire article.

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Winner of ULC Law Student Writing Competition Announced

Charles Mondora, a 2008 graduate of Hofstra University School of Law, has been selected as the winner of the 5th Annual William J. Pierce Writing Contest. Mr. Mondora’s winning essay is entitled: The Public Policy Exception, “The Freedom of Speech or of the Press,” and the Uniform Foreign-Country Money Judgments Recognition Act.

The contest was open to students enrolled in any United States law school or students who had graduated from a U.S. law school within the last year. Any article, note, or comment that addresses an issue arising from a uniform or model law promulgated by the ULC is eligible for this contest.

Mr. Mondora’s student note has been published in the Hofstra Law Review at 36 Hofstra L. Rev. 1139 (2008).

Mr. Mondora graduated from Boston College in 2005 with a BA in Economics. Since receiving his JD from Hofstra University School of Law in May 2008, he has been serving as law clerk to the Hon. Alvaro L. Iglesias, J.S.C., in Hudson County, New Jersey.

To read Mr. Mondora’s winning student note, please click here.

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Look Who's Turning 100!

There are two states that are celebrating their centennial with the Conference this year. Back in 1909, Idaho and West Virginia officially joined the Conference by appointing commissioners to attend the ULC 1909 annual meeting. Commissioners from both states were able to attend the 1909 annual meeting in Detroit.

According to Conference records, the first commissioners appointed in Idaho were James E. Babb of Lewiston, Fremont Wood of Boise, and W.W. Woods of Wallace. The first commissioners appointed in West Virginia were William W. Brannon of Weston, Charles W. Dillon of Fayetteville, and Edgar B. Stewart of Morgantown.

The 1909 Annual Meeting was held in Detroit. In his opening remarks, the President of the Conference, Amasa Eaton of Providence, Rhode Island, said:

“In every sense of the word, we are members one of another, spiritually and materially as well. Whatever benefits or hurts the interests of any one state of our union benefits or hurts the interests of all the other states. Therefore, it is the duty of each state to frame and to enforce its laws and to administer its public business with reference, not only to its own welfare and social affairs, but also with reference to the effect its course will have upon its sister states. It is in the interest of the whole people of our beloved country, of the highest civilization and the development of the good of all, that we are seeking for uniformity of legislation in all matters concerning the common welfare.”

Acts promulgated in 1909 include the Uniform Bills of Lading Act and the Uniform Stock Transfer Act. Both of these acts were ultimately superseded by the Uniform Commercial Code in 1951.

Since 1909, Idaho has adopted more than 110 uniform acts, and West Virginia has adopted more than 90 acts. Congratulations Idaho and West Virginia! You look great for 100!

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ULC Quarterly Report Published by the
Uniform Law Commission
Kate Robinson, Editor
katie.robinson@nccusl.org

Uniform Law Commission (ULC)
111 N. Wabash Ave., Suite 1010 Chicago, IL 60602
Ph: (312) 450-6600 Fax: (312) 450-6601
www.nccusl.org