2019 Updates to Nevada Statutory Form Powers of Attorney

Posted on April 6, 2020 by | Leave a comment

Split Arrow RoadA power of attorney provides legal permission for another adult to act on your behalf. The permission can be granted for a specific, limited purpose and period of time or for much broader purposes, such as handling all of your financial affairs, and an unlimited time period, such as until your death.

The party executing the power of attorney is known as the principal. The party receiving authority on behalf of the principal is known as the agent.  The principal directs the agent through the selection of certain powers and authority within the powers of attorney. The agent must not exceed the delegated authority provided by the principal.

Since 2009, Nevada has provided statutory forms, meaning enacted in the Nevada statutes, powers of attorney for both financial and health care purposes.  The statutory form powers of attorney are most readily recognized by both health care providers and financial institutions alike.  Our law firm strongly endorses the use of the statutory form powers of attorney.

Effective October 1, 2019, the state statutory form powers of attorney were revised with additional clarifying provisions included.  The updated financial power of attorney offers new powers to the agent with regard to placement of the principal in care facilities. Specifically, the agent may be granted authority to place the principal in assisted living, skilled nursing or residential long-term care facilities.

The financial power of attorney also clarifies that the authority of the principal overrides any contrary instruction provided by an agent. So, the principal, still retains the ability to direct his affairs provided he made those instructions prior to implementation of the power of attorney.

The durable power of attorney for health care decisions was revised to clarify whether the principal would desire pain-relieving mediation even if such relief could cause addiction or reduce the extension of life.  It is surmised that this statement was added due to the nationwide opioid crisis and concerns over prescription drug addition.

Both the financial and health care powers of attorney added a statement declaring the principal’s desire to remain in his or her home. The statutory forms allow the principal two choices. The first choice allows the principal to stay in his or her home as long as the principal’s medical needs can be met. Or, with the second choice, the principal can stay in the home without regard to the principal’s medical needs. We are counseling our clients to be very careful about selecting the second option with regard to staying in their home irrespective of their medical needs. We fear that there will be ugly situations where a principal is insistent on staying in their home which could lead to unhealthy conditions thereby causing greater illness or even accelerating their death.

The prior and new options contained in the powers of attorney must be carefully considered. The principal may grant significant rights to a third-party.  We strongly recommend consulting with a trusted, professional advisor prior to executing powers of attorney.

 

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Keeping Calm and Lawyering On

Posted on March 31, 2020 by | Leave a comment

Keep_calm_and_lawyer_onThey say that March comes in like a lion and goes out like a lamb. I’m not sure that’s true of the weather in Reno; we’ve had snow, hail, rain, sleet, glowering clouds and sunshine in the last week. But wow—March has brought a giant change to our lives with the draconian measures put into place to contain the spread of the Coronavirus. In early March, nearly every meeting on my calendar began to be cancelled. Our firm discussed what actions we might need to take to do our part to prevent the spread of the virus.

On March 17, Governor Sisolak ordered the closure for 30 days of non-essential businesses. Law offices are deemed essential, so we were not required to close, nor have we. However, the same week, our office had opted to move to minimal office operations, with attorneys and staff being encouraged to work from home. I had a few meetings that week to sign estate planning documents, but since then have been telecommuting from home. Whether we are in this for the mid-haul or the long-haul, laptop, cell phone and internet connection are keeping me and my colleagues working full time. I can draft documents and correspondence, call clients, participate in meetings and even attend hearings from home. Clients’ needs have not lessened, though certainly some have decided to wait until the storm blows over before pursuing legal matters. There has been an uptick in younger people seeking to put estate planning in place.

The move to remote working has its advantages. I don’t have to pack my lunch or drive to the office. I am spending more quality time with my husband, who has been working from home for the past year. I have more time to work on homework for my estate planning classes—I am taking the last two classes required to complete my Master of Laws degree in estate planning. If all goes well, I will graduate in six weeks. I have more time to check in with friends. And I have time to get back to blogging.

There is no dearth of new challenges in the world of trusts and estates to share on the blog. In January, the federal Secure Act went into effect which brought significant changes to the distribution and taxation of retirement plans after the death of the account holder. The Nevada legislature was in session last year and passed several significant pieces of legislation. The statutory form powers of attorney for health care and for financial matters have been updated to add choices regarding placement in care facilities. The types of property that can be included in a gift list have been drastically expanded. Changes have been made to the law governing “No Contest” clauses. And on it goes. Stay tuned for future posts to discuss new legislation and more. Until then, may we all stay healthy and safe.

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Morris Presents on Benefits of Trusts

Posted on September 9, 2018 by | Leave a comment

View More: http://jessilemay.pass.us/woodburnwedgeThe free, semi-annual Family Estate Planning workshop series, sponsored by the Community Foundation of Western Nevada, begins on Wednesday, September 19, 2018. The eight-week workshop series features different presenters addressing all topics related to estate planning.  The workshops are held every Wednesday at the Sierra View Library at 10:30 a.m. and 1:30 p.m. Jason Morris has presented since the program’s inception in 2010.  He will speak on the benefits and advantages of trust planning on October 10, 2018.  Call 775-333-5499 to register for the workshop series now.

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Posted in Charitable Planning, Estate Planning, Estate Tax, Probate, Trusts, Wills

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Top Ten Reasons People Procrastinate Estate Planning

Posted on July 26, 2017 by | Leave a comment
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The great thing about practicing in the area of estate planning is that it’s the one thing everyone needs, and the one thing everyone asks me if I can do. But I do get a lot of inquiries from people who don’t go through with it. I also get a lot of clients in their 50’s and 60’s (and even older) who have never done any estate planning, or have not updated their estate planning since Jimmy Carter was president—and yours truly was watching Scooby Doo on Saturday mornings.

Here are the top ten reasons I hear for why people have put off this very important task.

10. “I don’t have enough assets to bother doing any estate planning.” Do you have minor children? Regardless of your assets, you should have a will that nominates who will be their guardian if you and their other parent should both die. Even if your assets are not all that significant, an estate planning package also includes powers of attorney for financial matters and for health care. Absolutely everyone should have both of these documents in place and should update them from time to time. Taking the simple step to put powers of attorney in place will enable the person you designate to take care of you if you become disabled, thus potentially avoiding an expensive guardianship proceeding, and possibly also a medical and ethical crisis.

9. “I’m afraid it will cost too much.” First, the cost is not prohibitive. You might ask the Oracle (=your iPhone) what estate planning should cost. Better yet, call around and find out what attorneys are charging in your area. Be prepared to give the attorney an idea of the nature and level of your wealth and your family situation, because this will affect the recommendations the attorney makes and the cost of the work. Second, if you have enough assets to generate any kind of probate proceeding, you have enough assets to pay for an appropriate level of estate planning.

8. “My kids can deal with it when I’m dead; I won’t care ’cause I won’t be around.” Fair to say, you won’t be around to see the mess you create. But is that any way to live your life? If you care about your family now, why would you not make the effort to make their lives easier in the future by nominating who will be in charge and providing for who gets what? The Golden Rule seems particularly apt here: “Do unto others as you would have them do unto you.”

7. “I don’t want to have to make all the decisions about who will be in charge when I die and who will get everything.” It will require you to do some thinking and some planning. You may have to get in contact with friends or relatives to ask if they would be willing to serve as your executor or as agent under your power of attorney. But your estate planning attorney will give you guidance, and the results are worth the effort.

6. “Calling around to locate a lawyer is icky. I would rather leave it on my “to-do” list for another day.” Conceded; calling lawyers out of the blue could be an unpleasant prospect. But with the internet, you can let your fingers do the searching and get some information about estate planning, and about local estate planning lawyers, in advance of picking up the phone. Lots of people who find me on the internet say they’ve read my biography or my reviews and they already like me from what they’ve read. (My biography is here  and my client reviews are here).

5. “I would like to get this done, but my husband isn’t ready.” This is tough. Married couples should do their estate planning together, or at least in coordination, particularly if they have community or joint property. If, after an appropriate amount of time has passed and your efforts to persuade him or her have been unfruitful, and it will not cause undue hardship on your marriage, you might consider making an appointment just for yourself. Your spouse may be more willing to follow suit if you pave the way.

4. “I don’t need a will because all my assets are in joint tenancy with my spouse.” Has it ever occurred to you that your spouse might die before you do? Or that you might die in a common disaster? What will happen then? A probate will be necessary at the death of the second spouse. If you and your spouse have children from prior marriages, all the assets will pass to the surviving spouse, and then to the children or heirs of the surviving spouse—unless you provide otherwise with a will or trust. If that is not the result you want, you should put some estate planning in place to provide for both spouses’ children.

3. “The wife and I did wills in ’76; I’m sure that’s good enough.” Hopefully, your assets have changed and increased since then; maybe enough to warrant establishing a trust. And your kids have grown up. Maybe you now have grandchildren to be taken into consideration. Your family may have some special needs that did not exist in ’76. The persons you nominated as executor may no longer be alive or willing to serve. If your antiquated will was not prepared with a self-proving affidavit signed by the witnesses, your executor may be unable to probate it if he or she cannot find those same witnesses and get them to sign an affidavit regarding your competency. There are lots of reasons to update your estate planning periodically. Get on the ball.

2. “I’m too busy.” We are all busy, for sure. Something has to be important, or we have to make it a priority, in order to fit it into our schedule. I recently heard a Chinese proverb quoted: “The best time to plant a tree was 20 years ago. The next best time is now.”

1. “I am afraid if I do my estate planning, it means I will die.” News flash: You will die whether or not you do any estate planning. Signing your will or setting up a trust will not induce that day to come any sooner. Getting your estate planning done by a professional will give you peace of mind, knowing that you’ve provided for an orderly administration and distribution of your assets when that day comes. Call today. Seriously.

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Posted in Asset Protection, Estate Planning, Probate, Trusts, Wills

Back to the Basics

Posted on August 18, 2016 by | Leave a comment

back-to-basics

School has just started up again for many students, from grammar school to university. Everyone has had the summer to goof off, and now it’s time to get up to speed. At my office, I have recently met with a number of clients who are finally getting around to their estate planning, a task long-postponed for some. They all have questions for me, ranging from broad questions about how it all works to more sophisticated questions about tax planning; so mid-August seems like the perfect time to reflect on a few basic concepts in estate planning.

What is the difference between a will and a trust? A will is a document that becomes effective at the death of the person who created it, a/k/a the “testator”. To pass property via a will, it is generally necessary to lodge the will with the court in the jurisdiction where the testator lived at the time of death, and to petition the court to admit the will to probate. A probate takes time and costs money. It also has a public character to it, in the sense that the will can be accessed by the public and your nearest family members will receive a copy of it even if they are not beneficiaries under it.

A trust can be created during life and you can place your assets in the trust and administer them as trustee. Upon your death, or upon your becoming incapacitated, the person whom you name as successor trustee can take over the administration of the trust. At your death the successor trustee will administer and distribute the assets according to the provisions of your trust, without need of court supervision. If done properly, a trust will avoid a probate at your death, and also provides a level of disability planning that could avoid a guardianship. This saves money, and also keeps your estate planning out of the public eye.

Why do I need a will if I have a trust? If you have a trust, your assets will pass from the trust to your beneficiaries after your death. However, that only works for the assets that are actually in the trust. Any assets that were not placed in the trust, or were taken out of the trust, will need to be put into the trust after your death. If you have created a trust, you should also have a “pour over” will, meaning a will that leaves all your assets to your trust. If you do not have a pour over will, any assets not placed in your trust will pass according to intestate succession (unless such assets are held in a manner that controls their disposition at your death, such as a beneficiary designation account or a joint tenancy).

I have a trust in place but I want to make a few changes. Does it need to be completely redone or can it just be amended? It depends. If all you want to do is change a beneficiary or a successor trustee, it may make sense to do a simple amendment. If you need extensive changes, or if your trust is simply out of date with the law because of when it was prepared, it may be better to amend and restate it. This means a new trust agreement is prepared, which amends in its entirety the trust agreement you originally had. Sometimes it is less expensive to do this than to prepare a series of amendments.

Where can I get a power of attorney? Powers of attorney for financial matters and for health care are part of an estate planning package. You can also obtain forms on line. In Nevada, as in many states, the probate code provides a form for each of these documents. However, you should be aware that the forms are not necessarily easy to understand and they require you to make certain choices that are best understood if a lawyer explains them to you.

If you do not have estate planning in place or wish to have your existing plan reviewed, contact a qualified estate planning attorney today. Having a good plan in place will give you a sense of peace, knowing you will be taken care of in the manner you wish if you become disabled, and your loved ones or your favorite charities will be provided for at your death.

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Posted in Estate Planning, Probate, Trusts, Wills