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Power of Attorney Documents

Do I Need an Attorney to Sign Power of Attorney Documents?

What are Power of Attorney Documents?

When you think of estate planning, you most often think of wills and trusts. With a will and/or trust you can direct your loved ones on how to handle your affairs after you die. But what if you are alive and sickness or age has left you incapable of caring for yourself? A will or trust will not help in this situation. If you want to decide who will take care of you and your financial affairs in the event of your incapacity, then you must execute valid power of attorney documents while you still have capacity to do so.

What are the Different Types of Power of Attorney Documents?

Power of Attorney DocumentsPower of attorney documents are generally split into two types of documents: financial power of attorney and health care power of attorney. The financial power of attorney will authorize an agent to make decisions regarding your financial affairs. The health care power of attorney will generally authorize your agent to accept or reject medication or medical treatment on your behalf.

Must an Attorney Prepare Power of Attorney Documents?

Clear Counsel Law Group believes it is best to consult with an attorney when signing power of attorney documents (we realize that sounds self-serving), but no, an attorney is not required to prepare valid power of attorney documents. Indeed, in the current COVID-19 environment, meeting with an attorney may not be desirable or even possible. In hopes of helping those that want the peace of mind of having such documents prepared and in place during this troubled time, below are simple instructions on completing your own power of attorney documents.

In Nevada, the forms for financial and health care power of attorney can be copied and pasted directly from Nevada Statutes.

  1. Financial Power of Attorney (Statutory Form Power of Attorney). The form for financial power of attorney can be found in NRS 162A.620. You should include ALL the language from that provision.
  2. Health Care Power of Attorney (Durable Power of Attorney for Health Care Decisions). This form can be found in NRS 162A.860. You should include ALL the language from that provision.

Once printed, you must coordinate with a notary public to properly execute and notarize the document. If you are unable or unwilling to physically interact with a notary, then you can use an electronic notary.

https://www.nvsos.gov/sos/licensing/notary/electronic-notary-solution-provider-information-1678

Clear Counsel Law Group is currently accepting in-person meetings, but we are also available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

Typing a Will

How To Prepare Your Own Simple Will, including Witnesses

The start of school looks very different this year for teachers and students alike. Instead of worrying about backpacks, binders, and what to wear, many are thinking about lost wages, loved ones, and a last will and testament.

Typing a Will

Yes, you can type a will rather than hand write it, but there’s a few rules to follow.

Clear Counsel Law Group is grateful for the lifelong impact teachers, administrators, coaches, and many others have, and will have, on the education and growth of our children. We hope the information below regarding preparing a simple will is helpful in these troubled times to all our educators and any others that work high-risk jobs in the current pandemic.

While a handwritten (holographic) will is valid in Nevada,[1] a signed and witnessed will is a more secure way to make your wishes known. With the help of a couple of neighbors, friends, or co-workers (the law requires 2 competent witnesses), you can prepare a valid will, including witness statements. Follow these simple steps to prepare a valid will in the State of Nevada:

  1. The Document – The Last Will and Testament of the Most Amazing Teacher in the World. Sit down at a computer or laptop and type up a will that answers the following important questions:
  • Who are you?
    • This section should identify:
      • Your full legal name,
      • If you are married and to whom, divorced, consciously uncoupled (whatever that means), and
      • If you have kids, pets, etc (list them).
    • Who is in charge?
      • This section should identify the individual(s) that you want to be the executor of your estate after you die, including address, phone number, and email if available.
      • You can identify a backup as well if you want to.
    • Who gets your stuff?
      • This section should direct your administrator on how to divide your assets among your beneficiaries. Try to be as clear and specific as possible in describing who gets what.
    • Anything else? The questions above are enough, but you can also include details regarding the following:
      • Whether you want a traditional burial or cremation.
      • Where you want to be buried.
      • Who should take care of your children or pets.

(See NRS 133.020 and 133.040 regarding details of a valid will)

  1. Your Signature:
    • Sign in the presence of the witnesses.
    • The documents must be dated and signed.
    • Your signature should be accompanied by a statement declaring that you are of age, of sound mind, and that you are signing of your own free will.
  1. Witness Statements and Signatures.
    • A typed will requires signatures from at least two (2) competent witnesses. The witnesses cannot be beneficiaries of your will or related to any beneficiaries of your will.
    • The witness signatures should be accompanied by a statement declaring that:
      • They watched you sign the will,
      • You watched them sign the witness statement, and
      • That they believe you are of age and of sound mind. (see NRS 133.050 for specific language regarding witness declarations).
    • Your witnesses should provide address, phone number and email, if possible.

You can invite a notary to notarize the execution by yourself and your witnesses, but a notary is NOT required to complete a valid will in Nevada.  Once prepared, signed, and witnessed, put the will someplace safe.

When things are clearer in the future, Clear Counsel Law Group will be glad to review your will for free to make sure that it is valid and says what you want it to say. We are currently accepting in-person meetings, but we are available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

[1] Holographic Wills. If you are home alone and unwilling to venture out, you can still prepare a valid will. The following blog post from Clear Counsel Law Group will give you simple guidance on preparing a handwritten will at home. https://www.clearcounsel.com/how-to-write-your-will-while-stuck-at-home-during-the-corona-virus-pandemic/.

 

Write your own will

How to Hand Write Your Will (While Stuck at Home During the Corona Virus Pandemic)

The current Corona Virus pandemic has caused all of us, to some degree, to recognize that our time on earth can be fleeting. I know that I have felt an increased desire to have those I love close to me, and to know that they are, and will be okay.

Write your own will

Yes, you can even write your own will on a napkin.

Maybe you have previously thought about preparing a will, and now you are worried that you will not be able to see an attorney to help review and prepare the document. Do not despair, Nevada, and many other states, allow for what is called a Holographic Will that you can prepare on your own while in lock down. To prepare a valid holographic will in the State of Nevada requires:

• You are over the age of eighteen and are of sound mind;
• All material terms – the important parts – must be written in your handwriting; and
• The document must be signed and dated (NRS 133.090).

So grab a sheet of paper, or anything you can write on, and write down your desires and last wishes (though I’d suggest you save the toilet paper for other uses right now). Date it, sign it, and put it somewhere safe. There are betters to come, so let us be hopeful and do what we can right now. Stay safe out there.

For more information see https://www.clearcounsel.com/holographic-wills-you-may-write-out-a-will-on-almost-anything/.

When things are clearer in the future, Clear Counsel Law Group will be glad to review your holographic will for free to make sure that it is valid and says what you want it to say. We are currently accepting in-person meetings, but we are available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

writing your own will

How to Write Your Will While Stuck at Home During the Corona Virus Pandemic

The current Corona Virus pandemic has caused all of us, to some degree, to recognize that our time on earth can be fleeting. I know that I have felt an increased desire to have those I love close to me, and to know that they are, and will be okay.

Maybe you have previously thought about preparing a will, and now you are worried that you will not be able to see an attorney to help review and prepare the document. Do not despair, Nevada, and many other states, allow for what is called a Holographic Will that you can prepare on your own while in lock down.

How to write a valid holographic will

To prepare a valid holographic will in the State of Nevada requires:

• You are over the age of eighteen and are of sound mind;
• All materials terms – the important parts – must be written in your handwriting; and
• The document must be signed and dated (NRS 133.090).

So grab a sheet of paper, or anything you can write on, and write down your desires and last wishes (though I’d suggest you save the toilet paper for other uses right now). Date it, sign it, and put it somewhere safe. There are better days to come, so let us be hopeful and do what we can right now. Stay safe out there.

Can Clear Counsel Law Group help with my will?

Clear Counsel Law Group is not currently taking in-person meetings, but we are available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

power of attorney, guardianship

Power of Attorney vs. Guardianship: What’s the Difference?

 

Transcript:

Hello. My name is Jonathan Barlow. I’m an attorney here at Clear Counsel Law Group. A large part of my practice is in estate planning and guardianship.

In doing estate planning we often do what’s called a power of attorney for people and sometimes we get to the point where we have to file for a guardianship for people.

We’re going to talk about what those two things mean, especially for elderly people in southern Nevada.

 

First, I Will Define the Term “Capacity”

An important concept though, before we discuss those two things, is capacity. That’s going to come up over and over again in the discussion of power of attorney and guardianship. What is capacity?

Capacity simply means for you, as a person, your ability to mentally appreciate and understand the consequences of your decisions.

Decisions, whether they’re financial decisions, whether they’re health care decisions, have risks and rewards and consequences.

Your mental ability to appreciate the consequences of those decisions and act rationally in relations to those risks and consequences is essentially capacity.

As we all know, there are medical conditions and other reasons that people begin to lose capacity over time and sometimes it happens very quickly through accidents and other things that may happen, such as traumatic brain injuries, where that person loses capacity.

What that means is they are no longer mentally able to appreciate those risks and rewards and consequences of their decisions and thus it raises concern about the person’s well being, about their safety, about them being subject to potential exploitation by other people or undue influence from other people.

There’s processes put in place to protect a person in the event of incapacity.

That’s a brief nutshell of what capacity means.

 

Next, I Will Explain Power of Attorney

Let’s talk for a minute about what is a power of attorney and how it can help an elderly person.

A power of attorney is essentially kind of like a contract where you’re going to sign a document that is going to grant rights and authorities and powers to a person, who is called an agent under the power of attorney, to make decisions for you or to exercise rights and authorities that only you can exercise.

Let me give you some examples of what the person can do for you under the power of attorney.

 

Medical Power of Attorney vs. General Power of Attorney

Let’s assume you’ve named your son Frank to be your power of attorney.

There’s two types of power of attorney, excuse me, sorry for this side track, but there’s a medical power of attorney and there’s general power of attorney. There’s generally two different documents. Same concepts. We’re naming Frank to make decisions.

Under the medical power of attorney, that’s fairly straight forward. It allows Frank to make medical decisions for you in your place, again, only if you are not able to make those medical decisions for yourself.

For instance, he’d be able to determine what medications you would receive, what doctors you were treated by, what hospitals you might be admitted to, what rehab facilities you went to after being treated in a hospital, where you’re going to live after being treated in a hospital or rehab facility.

Those are medical decisions related to who you are as a person and your well being as a person.

Under a general power of attorney an agent can make decisions, or has authority over, such as your bank account.

They can access your bank account and use it. They could sell your house for you. They could prepare and file your tax returns for you.

They’d have authority over your insurance policy such as homeowners insurance, car insurance, health insurance.

Essentially, anything you can do in you general the agent would have the ability to make those decisions and has the authority to do that under the power of attorney.

 

power of attorney, guardianship

 

Now That You Understand Power of Attorney, I Will Explain “Springing” Power of Attorney

There’s an important concept in power of attorney that you need to understand and it’s a protection for most people and I often recommend it for almost all of my estate planning clients.

That’s called the spring power of attorney or springing rights under power of attorney.

Let’s think in your mind about that point in the future at which point you have lost capacity. What we talked about again, you are incapacitated.

Think about that point in the future.

If you have designated your power of attorney to be a springing power of attorney, Frank, your son who you named to be your agent, though you’ve named him as your agent in the power of attorney, he has no rights, he has no power or authority, until you become incapacitate and then his rights spring into effect, in essence.

How does Frank accomplish that?

How do his right spring into effect?

Frank has to go to a doctor, to a physician, and obtain an opinion from the physician that says, “My mom or my dad has lost capacity. That they are incapacitated.”

Once he gets a doctor’s opinion, his power of authority under the power of attorney spring into effect.

It’s a protection for you. If you want to put that power of attorney in place to protect that time when you’re incapacitated, you can do that but you want to reserve to yourself and only yourself.

Even though you love and trust Frank, while I have my capacity I’m the only that is going to make these decisions. When I become incapacitated, his authority spring into effect.

It’s a great protection and something that most people should think about and consider rather than the opposite which is if it is not springing, Frank can use the power of attorney tomorrow while you have your capacity to run your life for you.

Some people want that because they want the assistance, most people say, “I love Frank, I trust Frank, but let’s wait until I’m incapacitated.”

Power of attorney is very good for elderly people. It’s relatively inexpensive to have a power of attorney.

 

Let Us Now Contrast Power of Attorney and Guardianship

It avoids the need for a court guardianship process when that incapacity arises and it allows the person to act pretty quickly without needing to wait for court authority. Which transitions us now to court guardianship process.

Many people don’t get a power of attorney while they have capacity and they come to the point of incapacity and suddenly, Frank or other families, become concerned that you are not able to make your decisions or that you’re making unsafe decisions that are putting you at risk.

They don’t have a power of attorney document they can rely on.

The only way that they can have those same rights and same authorities to take care of you is to file papers in the guardianship court asking that Frank, or whoever, be named as the guardian for you.

Assuming that you are incapacitated and other legal standards apply that show that the guardianship is appropriate, once the court appoints Frank as the guardian, Frank has essentially the same rights as he would have under power of attorney.

Same rights to make medical decisions for you, to decide what health care you’ll receive, to manage your money and finances for you, your property, to take care of all those general matters. Same rights happen under the guardianship.

However, he’s stuck in this court process that requires annual reports, it requires annual filings with the court, annual accountings, and so it can be a little bit burdensome and it can be costly and time consuming to go through the guardianship process.

Nevertheless, they have the same rights under power of attorney and guardianship, both meant to take care of you while you’re incapacitated.

 

How To Revoke Power of Attorney

Last thing we want to talk about, if you’re still with us here at this point in the video1)Of course you are!, is what do you do if you are concerned about the agent under your power of attorney or you’re concerned that you’re stuck in a guardianship with a guardian named for you and in both situations you feel like you’ve lost control of your life.

Where Frank is running your life for you and you’re not happy with what he’s doing for you, both under the power of attorney and guardianship.

A power of attorney, if you still have capacity, you can always revoke your power of attorney.

Tear it up, get rid of it, notify other people who might be aware of it that you have revoked Frank’s rights under the power of attorney.

That’s fairly straightforward and easy.

 

It Is Difficult to Terminate a Guardianship

Now, if Frank has gone ahead and got that doctor’s opinion that says you are incapacitated or if you’re stuck in guardianship, in both situation you’re unfortunately you’re going to be stuck in some court process to prove your capacity.

You’re going to have to try to prove that you do have the ability to make your own decisions, that you have the mental ability to understand the effect of those decisions. If you can do that and prove your capacity, then you can revoke the power of attorney and get rid of Frank or you can get out of the guardianship.

The guardianship would be cancelled, it’d be terminated, and you’d have your right back to take care of your person, your own finances, at that point.

Both situations are not desirable because, again, you’re stuck in a court process. It’s uncertain.

It’s difficult to get a doctor to give an opinion that you have capacity when another doctor has already determined that you’re incapacitated. Especially if there’s diagnosis of Alzheimer’s or dementia or something like that, it becomes very difficult.

Another protection I want to point out as we finish here, is that third parties, other people, Frank’s siblings, your other children, other family or friends, can watch Frank’s actions whether under power of attorney or under guardianship and they can come into those processes and file things or try to protect you.

There is a court process allowed to challenge the agent’s actions under a power of attorney.

That allows a third party that’s interested in your welfare and interested in your well being to bring the agent into court and ask the court to review his actions to determine whether they’re appropriate under the power of attorney.

If they’re not appropriate his right would be cancelled under power of attorney and may be required to repay or things that he’s done and correct it. Same thing in a guardianship.

Third parties can come in and ask the court to either remove the guardian and replace him with somebody more appropriate or to cancel the guardianship altogether for you if it’s appropriate.

 

If You Are Getting Older, Please Consider Power of Attorney Documents

If you’re an elderly person or getting to the point where you want to think about a point where you may reach incapacity, you definitely need to think about this.

You should come in and at least get some power of attorney documents put in place where you can choose proactively who you want to name as your agent to make those decisions for you.

Who you trust rather than leaving it to the whims of the guardianship court to determine who the court thinks is best to make those decisions for you.

In any event, if you’re stuck under a power of attorney or a guardianship and need help getting out, definitely come and see us and we’ll talk you through those processes of what needs to be done to help you gain your independence back, to gain your capacity back, to make those decisions for yourself and to protect yourself.

Either way, we’re happy to help here at Clear Counsel Law Group and we have a lot of experience helping people with these issues.

Give us a call here at Clear Counsel and we’ll be glad to answer any questions you have about this and we look forward to talking to you soon.

 

Footnotes   [ + ]

1. Of course you are!
contesting a will

How to Contest a Will in Nevada

In the state of Nevada, a Last Will and Testament is presumed valid – even if it was written by the deceased person themselves on the back of a napkin just days before their passing. In fact, a valid holographic will only requires 3 things to be valid: that it be hand written, hand dated, and signed.

This, of course, leads to potential problems. What if the deceased didn’t have the mental capacity to make a will? What if he or she was coerced or influenced by somebody to the point that the will doesn’t actually represent their true desires?  That’s when the will must be contested.

woman writing a will

The challenge of contesting a will in Nevada

Proving any of those things will be a fight.

Contesting a will in Nevada is basically just another form of litigation. The contestant is in the role of the plaintiff, and the petitioner for the probate of the will is filling the role of the defendant. The regular rules of civil litigation also apply to will contests. Each party can gather information about the other side’s claims in the “discovery” process using the usual litigation tools of “interrogatories” and through depositions. There is going to be an evidentiary hearing, which is a lot like a trial.

The contestant has to make their case very well. As described above, the judge is going to have the default view that whatever will exists is valid. Therefore to prove the will is invalid, your case must prove one of the following:

  1. the will was not properly signed and witnessed,
  2. the testator lacked mental capacity, or
  3. there was coercion or undue influence by somebody and therefore the will is not representative of the testator’s true desire.

 

The process of contesting a will in Nevada

First, you must have “standing” to contest a will, meaning you have the legal right to bring your challenge to the court. Nevada has strong rules about who qualifies as an “interested person” in these cases and is therefore qualified as to their standing. Basically you have to have some kind of claim to the estate.

Once a will is contested, the probate court will probably appoint somebody to act as “Special Administrator” to administer the estate until the contest reaches resolution. The special administrator is not to distribute the estate until after the case resolves. The special administrator must be a Nevada resident, or a bank, or a trust company (or be associated with one of those as co-Administrator).

The litigation will proceed along established rules for Nevada. It is important to have an experienced Nevada probate law firm help you. Litigation is complex, and probate only makes it more complicated. A will being “unfair” is not good enough to get it thrown out. You will need a team to build your case and present your evidence in a way that the probate court will accept.

If you need to contest a will in Nevada, please call us today.

Power of Attorney For Mother

How Can I Get Power of Attorney For My Mother?

The question, “how can I get power of attorney” for a person is among the most frequent inquiries our estate planning department receives. Most people have a general idea of what a power of attorney is, however, relatively few understand how it is granted and when it can be granted. This article will discuss the two main types of power of attorney and what they cover, how someone can grant power of attorney to another person, and the importance of capacity during execution of the power of attorney.

What is Power of Attorney and What Authority Can it Grant?

Nevada law defines “Power of Attorney” as “a writing or other record that grants authority to acting the place of the principal.”[1] The principal is the “individual who grants authority to an agent in a power of attorney.”[2]

Nevada deals mainly with two types of power of attorney: Power of Attorney for Financial Matters and the Durable Power of Attorney for Health Care Decisions. Each power of attorney is important in its own sphere and a principal should ideally execute both.

The financial power of attorney allows the principal to appoint an agent to whom she can grant authority over several items including real property, personal property, bank accounts, and the personal maintenance of the principal. The principal can also elect whether to make the power of attorney effective immediately or upon the determination of doctor that the principal no longer has capacity.

The health care power of attorney allows the principal to appoint an agent she authorizes to make health care decisions on her behalf if she is otherwise unable to make those decisions herself. This power of attorney also allows the principal to declare her desires in regard to whether she wants life prolonging treatments commenced or continued.

Execution of Power of Attorney

Nevada law requires certain procedures to validly execute a power of attorney. The financial power of attorney and power of attorney for health care decisions both have their own set of requires for the actual execution of the power of attorney.

The financial power of attorney must be sign by the principal, or in the principal’s conscious presence by a person directed by the principal to sign the principal’s name. The signature is presumed to be valid if notarized.[3]

The health care power of attorney must be signed by the principal and the signature must either be notarized or witnessed by two adults who know the principal personally.[4] The witnesses also cannot be a health care provider or the appointed agent and the at least one witness must be a person who is not related to principal and has no interest in the principal’s estate.[5]

The Importance of Capacity

Besides proper execution, the statutes governing power of attorney also provide extra requirements for validity in certain situations to ensure that the principal is competent to execute the power of attorney. One of the most important aspects of establishing a power of attorney is that this is not an authority or position that a potential agent can actively seek out and obtain on their own; you cannot go and “get” power of attorney. Rather, this authority is granted to the agent by the principal of their own volition. A person lacking capacity cannot make this appointment.

Nevada law is careful to only allow competent persons with capacity to execute powers of attorney. The law is so concerned with a principal’s competency that it requires proof of competency in certain cases. The statutes for both the financial power of attorney and the health care power of attorney provide that, “if the principal resides in a hospital, residential facility for groups, facility for skilled nursing or home for individual residential care,” when the power of attorney is executed, the power of attorney must be accompanied by a certificate of competency from a physician, psychologist, or psychiatrist declaring that the principal has the requisite capacity to execute the power of attorney.[6]

The Importance of Power of Attorney

A valid power of attorney is a vital part of any person’s estate planning. Unlike other parts of an estate plan which contemplate what happens after a person dies, powers of attorney take into account a person’s needs during their lifetime. In many cases, a valid power of attorney can prevent the need for a court-appointed guardianship. The cost of having the power of attorney correctly executed is well worth any person’s time and can certainly simplify matters when caring for a loved one in need of assistance.

[1] NRS 162A.090.

[2] NRS 162A.110.

[3] NRS 162A.220(1).

[4] NRS 162A.790(2).

[5] NRS 162A.790(3)-(4).

[6] NRS 162A.220(2); NRS 162A.790(5).

las vegas real estate

Las Vegas Finally Picks Up After 2008

Clear Counsel Law Group is pleased to feature this blog post by our friend Margaretha Breytenbach who has helped many of our clients make responsible real estate decisions.

The Great Recession of 2008 became known as the 2008 financial crisis and it made way for the most widespread disruption to the US economy ever since the Great Depression is the 30’s. It started in 2007 when the US real estate market began falling apart and delinquencies of mortgages increased. By September and October of 2008, it created a nationwide financial disaster. The US government provided extraordinary assistance to financial institutions by flooding the market with money, adding liquidity and increasing government spending.

When the leverage credit market seized up, and the US mortgage giants Fannie Mae and Freddie Mac went flop during the summer, the government was distressed since these two are highly important in the US real estate market. Since the failure of those two institutions could cause the fall of the entire financial system, the US treasury injected $200Billion of funds as new capital in the form of stocks.

Jobs and Tourism

Las Vegas, being one of the most sought after tourist destinations in the US, became the epicenter of foreclosures. When there are only few people left spending their earnings in a casinos, hotels and bars, incomes get depleted, and mortgages go unpaid. The unemployment rate rose when business tried their best not to go underwater by cutting manpower. Many are yet to recover from it.

Many construction projects were put on hold when US citizens felt Vegas party trips were no longer a responsible use of income. Major constructions went bankrupt and halted their completion like the Summerlin shops and Cosmopolitan. Everyone in our tourism-driven community felt the pinch.

Why now is a Good Time to Invest in a Home?

Everyone almost gave up when we went so near rock bottom. Even the middle class has bankruptcy declarations; about 13,068 (individual and business) foreclosures were from the Clark County. It increased by 2010 to 25,000 but eventually recovered in the first quarters of 2015 to 4,566.

The market was slow in picking up the pieces left by this upheaval in the US housing bubble. However, the latest findings show that where it struck hardest, the recovery will also rise fastest. Las Vegas had made the largest jump in the number of renters to owners ratio from 39.5% (2006) to 49.4% (2014).

Home values are now recovering at a fast pace; more so due to the fact those tourists are again pouring back to the Strip. Businesses are booming. All temporized construction and plans are resumed. Las Vegas is reinvented and reinvigorated.

Born and Raised in South Africa, Margaretha has moved in the USA since 2004 after extensive travel through Europe. Well versed in the international market, she was also able to cater her Real Estate services to those from Canada, China and Europe. Whether you are looking to buy, sell, invest as a first time home buyer or a seasoned investor; it would be Margaretha’s honor to apply her strong negotiating skills to your transaction. She is motivated to build a strong business relationship with all her clients and can show you why she is the right person to market your home.“Top 100 Women in Real Estate in 2017” by MYVEGAS Magazine, Top 10 Real Estate Agents on Social Media by Property Sparks and currently the #1 Real Estate agent for 2018 with Urban Nest Realty.

Contact information:

Mobile: 702-813-1770

email: mbreytenbach@mac.com

undue influence in a will

Proving Undue Influence in a Will

When a will is admitted to the Court for probate, there are often parties who contest the will and attack its contents  These parties are generally the children or other family members of a decedent who would have inherited under the decedent’s will had the decedent not made later in life changes to their will. Often times what the contestants argue is that the decedent was a product of undue influence, coerced into changing their will by a person with whom they had a special relationship or upon whom they relied for care.

proving undue influence in a willThe contestants can attack the validity of the will by arguing undue influence. In certain situations, undue influence is presumed. When a will gives property to a person’s caregiver, the person who drafted the will, or the person who paid to have the will drafted, those transfers are presumed void. For example, if an elderly person’s in-home nurse is beneficiary of their will; the Court will declare the will void and refuse to distribute the property to the nurse.

The theory being that the elderly person relied on the nurse for care, and the nurse could have abused her position and coerced the elderly person into naming her as a beneficiary under their will. To rebut the presumption, the nurse would have to prove to the Court by clear and convincing evidence that the gift of property to her through the will was truly the wishes of the decedent and not the product of undue influence.

In other situations, wills are attacked by family members based on undue influence when a will disposes of property in ways that seem unnatural or suspicious. In a case where the presumption of undue influence does not apply, a will contestant must prove undue influence by a preponderance of the evidence.

Meaning, that the contestant must show the court that the gifts under the will were “more likely than not” the product of undue influence. A situation may arise when an elderly person is befriended by someone later in life, and that person ends up taking under a will where the person’s children were originally set to take.

Undue Influence in Nevada Case Law

The Nevada Supreme Court recently decided In the Matter of the Estate of Arlan Edward Bethurem, that this somewhat relaxed standard of proof was the best way to protect vulnerable persons who may have been susceptible to pressures that overrode their true wishes for disposition of their property.[i]  The Court established a strong public policy of protecting the elderly and the vulnerable by accepting circumstantial evidence to prove undue influence, noting that pressures may be exerted in secret and impossible to prove.

Although the Court did not impose the highest standard of proof for showing undue influence, it should not be taken lightly, as substantial evidence will need to be presented to meet the burden of proof by a preponderance of the evidence.

As always, if you or someone you know is faced with a situation as illustrated above, where their loved one may have been the product of undue influence, make sure you consult an experienced probate attorney. Caution should always be taken before attacking the terms of a will because doing so may make you ineligible to inherit under the decedent’s other estate plans, such as a trust. Additionally, an attorney can assist in weighing the likelihood of your chances of successfully invalidating a will.

For a consultation on this or any other issues, contact our knowledgeable probate attorneys at Clear Counsel Law Group.

 


[i] 129 Nev. Advance Opinion 92, November 27, 2013.

Can I Sue My Sibling for Exploiting Our Elderly Mother? Standing Up Against Elder Abuse.

Southern Nevada is a welcome retirement location for many elderly individuals. Census data shows that an estimated 12-15% of Clark County, Nevada, residents are 60 years old or older. Being aware of this significant elderly population, the Nevada legislature has attempted to provide protections for elderly individuals who might become targets for financial exploitation. Specifically, if an “older person” (meaning any person who is 60 years of age or older) suffers a loss of money or property as a result of exploitation, the older person can sue the person who caused the exploitation in order to recover the lost money or property. In addition, and as a very important addition, the person who caused the exploitation is liable to the older person for two times the value of the money or property taken from the older person. See NRS 41.1395. This claim is often called an “elder abuse” or “elder exploitation” claim.

What if I think my sibling is exploiting my parent? Can I file a lawsuit on behalf of my parent?

Often the older person’s children or other loved ones become suspicious that the older person is at risk of being exploited or is actually being exploited. Too often, one child believes that it is his own brother or sister who is exploiting their mother or father, but it is also frequently alleged that a caregiver or another unrelated person who has gained the confidence of the older person is exploiting the older person. Often the child asks whether he can file the elder abuse or elder exploitation lawsuit on behalf of his elderly parent. This question also frequently arises after the older person has died.

It is clear that the older person herself can file the lawsuit on her own behalf. However, what can be done if the older person will not or cannot file the lawsuit? Who has the legal right to protect the older person’s money or property by filing the lawsuit? The Nevada Court of Appeals provided guidance on this issue in 2015 in Echevarria v. Echevarria. In Echevarria, Michael sued his sister Angel shortly after their mother, Jean, died raising claims that Angel had taken advantage of Jean and inappropriately obtained Jean’s money or property. Among other claims, Michael sued Angel for “elder abuse” of Jean under NRS 41.1395. Jean requested that the court dismiss the elder abuse claim arguing that Michael was not authorized by the law to file on behalf of his mother.

In analyzing NRS 41.1395, the Court of Appeals concluded that the law is clear that the older person has authority to file a lawsuit for elder abuse under this statute. In addition, the Court of Appeals stated that an executor, administrator, or guardian may also file the claim on behalf of the older person, citing to NRCP 17(a) that requires the “real party in interest” to file the lawsuit. Because Michael was not the older person (obviously), and also was not his mother’s guardian nor the executor or administrator of her estate, the Court of Appeals determined that Michael was prohibited from filing the elder abuse lawsuit against his sister, and the Court of Appeals affirmed the district court’s decision to dismiss the elder abuse claim from his lawsuit.

You’ll need to be a “representative” in order to file a claim on behalf of an older person.

The Echevarria decision is not yet controlling legal precedent in Nevada because it was an unpublished decision. However, the reasoning of the Court of Appeals is correct and should be applied by the local courts in determining who has the right to sue for elder abuse or exploitation. It is clear that the older person herself can file the lawsuit. However, if the older person will not file the lawsuit or cannot file it (due to incapacity or death, for example), the only other party that could file the lawsuit for elder abuse or exploitation of the older person would be someone who is acting in an official representative capacity, such as a court-appointed guardian or court-appointed executor or administrator of the older person’s estate.

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