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A Conversation about the Guardianship Process

What You Need to Know about the Guardianship Process

Transcript:

Jonathan: Hello, I'm Jonathan Barlow, a partner attorney at Clear Counsel Law Group. In 2015, there was a lot of review in the media here, especially in the local newspaper, Las Vegas Review Journal, and other media outlets about problems with the Guardianship Court and guardianship process in Southern Nevada. A lot of this concern came with what was happening with our elderly population here? Were they being taken advantage of by guardians? Was the court properly overseeing this process? It led to a lot of concern from people who had an elderly parent living here in Nevada, who may have been subject to the Guardianship Court process. A lot of things have been happening to fix these problems.

We've received a lot of calls, and a lot questions, a lot of concern about guardianship. What it is? Why is my parent involved in Guardianship Court? Really quickly, let me tell me shortly. What is Guardianship? Guardianship occurs when an individual, usually an elderly person, but it can be anybody of any age. When an elderly person has lost capacity to the point that it's no longer safe for them to make decisions for themselves. That can be a decision related to finances, or related to their person meaning healthcare choices, living choices, things of that nature. If that person has gotten to the point where they're no longer able to take care of themselves, the Guardianship Court can appoint somebody called a guardian, to essentially step in that person's shoes, and be a guardian for them. Be able to make all decisions related to finances, health care, and so on. That's what Guardianship Court is like. Our assistant, Brian, here in the office that has heard some of this discussion and had a question for me.

Brian: Are you saying because the guardian can make all the financial decisions that he will be able to set his own rate of pay?

Jonathan: That's a good question about the guardian's pay. Everything that happens in Guardianship Court is overseen by the Guardianship Judge. That's part of the problem that occurred earlier this year. There was some question about what kind of oversight is occurring? It's been a lot better now, but yes. The Guardianship Court sets the rate of the pay. The Guardianship Court will examine that and determine whether the guardian is charged a reasonable amount for their services. A good answer to your question on that one?

Brian: You did. I have another question, if that's okay?

Jonathan: Yes, anytime.

Brian: Can a guardian amend an estate plan? If you worked with your parent, and you guys set up an estate plan, and you went back to Ohio where you live. Can a guardian take over and amend it?

Jonathan: That's a great question. The guardianship statutes in Nevada actually do allow a guardian to do something related to estate planning. Typically, for example, the guardian statutes could allow the guardian to create a will, or even a irrevocable living trust for the person under guardianship called the ward. That all requires court approval, and that would only be approved if the plan that was putting it to place any will or a trust, essentially does what would happen if they didn't have a will, which means, if they are leaving the assets to all children in equal shares.

Yes, the guardian could actually petition the court and receive approval to create a will, or a trust for the ward. Your question was about amending. They would typically not be able to amend what was been done previously by the person or guardianship.

Brian: You are saying that they would be able to make a will if there was not one previously?

Jonathan: Correct. Typically, we see that happening in Guardianship Court because the guardian recognizes that they can set up some documents that would make it easier to administer that person's estate after they pass away. They can even set it up to avoid probate, and that's why you would set up a trust to help that person's estate of with probate process. It's flexible, and guardianship can definitely do some things to help the ward be more comfortable, make sure their plans are put into place the way that they would have otherwise wanted to do.

Any other questions about guardianship, Brian?

Brian: There is a concern from a client who lived out of state that his parent would be assigned a guardian by court, and the child would never be told as such. Is that true?

Jonathan: That's not entirely true. It's partially true. Let me explain. A lot of times we have elderly individuals here in Nevada, who don't have family close by. If a concern arises with that person's well being, it's possible for somebody called a private professional guardian, or somebody else, to ask the court through a petition to be appointed as that person's guardian, without a hearing, and without notice to anybody. It's called an ex parte petition for temporary guardianship. Yes, they could be appointed.

The part that is not entirely true is that after that appointment occurs, they had to then give notice to everybody else. Everybody has to receive notice that the temporary guardianship has been put in place. At that point, it would be important for the family members to come forward and say, "Hold on. Wait a minute. We want to be involved. We want to be here taking care of Mom. We want to be the guardian." It would be important for them to come forward to do that.

Yes, and technically, they could be appointed guardian without that. Guardianship is not necessarily a bad thing. It can help elderly individuals that take care of themselves and make sure they're not subject to exploitation, or undue influence from other people. It's important for family to be involved to make sure the process goes smoothly for their parent here, who lives here in Southern Nevada. For more information about guardianships and issues that arose earlier this year with guardianship, and what you can do protect yourself against issues that might arise in guardianship, I encourage you to read our blog at Clearcounsel.com, where you can receive more information from myself and other attorneys who blog about this.

Probate / Probate Videos - 11/23/2015

How Does Legal Capacity Affect the Ability to Bequeath a Home?

What to Know about Legal Capacity in Order to Bequeath a Home

Transcript:

Jordan Flake: I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I have a question here. My sister has agreed to care for my mother and her home. Is there a legal way of ensuring that the home will be given to her after mother passes so that she'll not have to sell it before then? I think the idea here is they want to be able to keep the mother in the home during the course of the mother’s life.

Whenever a client comes to us and says, "I'm caring for my mother, or I'm caring for my father and we want to do this." The very first thing that pops into our head is the highly relevant question of does your mother still have her capacity. What I mean by capacity is the ability to make decisions by herself and for her own benefit. When we talk about capacity, we're not necessarily at her prime, can she solve all the math problems that she would have been able to solve in her 20's or 30's.

We're more asking the question of does she know, if she says I want this property to go this way, or to this person. I want this person to take care of me. Does she understand the implications of those questions. Is there consistency. That's the first question that I would ask in response to this. Basically, if the mother still has her capacity and is pretty sharp then there are a lot of options for making sure that the mother can stay in the home and make a designation as to who the property will pass after she passes away. She could do a reverse mortgage, she could do a simple will, she could do a revocable living trust. There's just a lot of different options in that scenario.

If the mother does not have her capacity anymore, and again, just settling quickly on capacity, this can often be a medical question and it would fall outside the expertise either the sister in this scenario or a special interest lawyers. Often times we may wish to consult a physician in order to determine whether or not an individual, elderly individual has the capacity. But if we're on a case where the mother has lost her capacity, then yes, we're a lot more restricted in what we can do. If we want to take some serious action like selling a property, it may be necessary to obtain a guardianship order from the court to that effect.

I know I'm jumping all over the place, but the other thing you have to consider is whether or not the mother has valid power of attorney documents, because if she does then a guardianship wouldn't be necessary. There's kind kind of an analysis that we go through whenever we get these types of questions to determine whether or not there's capacity. Whether or not there are or not estate planning documents that will help out, and if not we might be looking at a guardianship scenario.

Brian, I kind of jumped all over the place during that answer. Did you have any follow up questions on that?

Brian: Just one follow up. If a person has been determined to have lost capacity, can a person regain capacity?

Jordan Flake: Absolutely, yes. I use the term elderly when we're talking about capacity, because it is often the case. I've had a few cases where there was a severe liver disorder, for example, on one client that I'm thinking about. He was a 52 year old man, otherwise fully had his capacity, but his liver disorder affected his ability to make decisions. We had to go out and get a guardianship for him. Fortunately a few months down the road, the liver issue was solved and we watched as his capacity came back fully and we were able to close out the guardianship. Guardianship is by no means a permanent situation. It's often times, though, when we're talking about adult guardianship, we are talking about elderly people who might be toward the end of their life, and that's why they have lost their capacity.

In any event, if you are trying to provide for the care of a parent, and you have questions about how the assets are supposed to be distributed, please reach out to Clear Counsel Law Group. Talk with me. We can go over the scenario on the phone or I'm happy to meet with the elderly parent and basically we'll go through this analysis and make sure we take all the right steps. Thank you.

Estate Planning / Probate / Probate Videos - 11/19/2015

Holographic Wills: You May Write Out a Will on Almost Anything

What is Necessary to Complete a Holographic Will?

Transcript:

(Editor's note: Brian is Clear Counsel's Communications Director. His prompts represent a conglomeration of inquiries submitted. If you have you have a question you would like answered in an upcoming video, email the inquiry to brian@clearcounsel.com)

Jonathan: Hello. My name is Jonathan Barlow, I'm a partner attorney at Clear Counsel Law Group. I was recently talking in the office with some of our assistants here in the office about how you can actually write a will on anything. You can write it on the back of your receipt in the grocery store aisle. You could write it on a letter. That could be a valid will depending on if you follow the requirements in Nevada.

Brian, my assistant, didn't believe me. In fact, Brian, what was your question about this?

Brian: You can't be serious, Mr. Barlow. You're saying if I write out a will on the back of a cocktail napkin, then, ... I leave assets to my children that the court can uphold it? That can't possibly be real. Come on.

Jonathan: It actual is, Brian. It actually is. Believe me. It's called a "holographic will," a hand-written will. In Nevada, there're only three requirements to make that a valid will. Again, if you write it on the back of a napkin, and you date it in your handwriting ... Let's try. Let me be clear. One is, it's in your handwriting. Number two, you date it. Number three, you sign it. That's a will. That's all Nevada says you have to have in order to have a valid holographic, or handwritten, will.

Let me tell you an interesting example, Brian. It wasn't the back of a cocktail napkin, but a few years ago I was involved in a case where a gentleman had gone back to Oklahoma to attend his mother's funeral. While there in Oklahoma, he was sitting in the hotel room, and he pulled out a piece of hotel stationary. You can actually see at the top of it, the name of the hotel. It's just hotel stationary. On this he writes a letter to his long-time girlfriend. Not married. Long-time girlfriend. In that he says, "Dear Susie. I want to make sure that you get everything that I have, and that my children and my other relatives get nothing", basically. "I intend to create a will at some point in the future. Love Bill." The girlfriend was actually able to get that one-page letter written on hotel stationary admitted as a valid will. The kicker is, the estate was worth over two million dollars. The children were cut out of two million dollars due to a hotel stationary letter.

Yes. You can do it on a hotel ... Excuse me, on a napkin. You can do it on a hotel piece of stationary as long as you meet those three requirements of, "in your handwriting," "date it," and "sign it."

Brian: You're saying that we don't need a witness?

Jonathan: Not for a holographic will. That's an excellent question. You don't need a witness. You don't need to have it notarized. All it needs to do is meet those requirements, as long as it's in your handwriting. A common problem that we sometimes see with this is that somebody will go on the computer and type out the will, and they'll sign it. If you do that without a witness, or without two witnesses in Nevada, then that will not be a valid will.

Again, the whole thing ... At least what's called the "Material Provisions" of the will have to be in your handwriting. Yes, it doesn't need a witness at all. It's really an interesting technique. Obviously, as an estate planning attorney, we don't advise doing this technique of a holographic will because, inevitably, it causes problems, which I'm grateful to have the work for the disputed part, the litigation, but I would prefer not to do that. Yes, you can do a holographic will on any piece of paper you want, but the best practice is always to go in and visit with a good estate planning attorney and get it done formally. Yes. Meet those three requirements, and you can have a holographic will on the back of a napkin.

Probate / Probate Videos - 11/16/2015

Why Do You Need an Attorney for Probate Matters?

How Will an Attorney Assist You With Probate?

Transcript:

Hi, I'm Jordan with Clear Counsel Law Group. I'm an attorney who practices a lot in probate. One of the questions that we get, when a person passes away, their family comes to us and says, "Why should I have to hire an attorney in this situation?" The answer is because it's actually pretty difficult to interface with the court. Here in Nevada we have a little bit more of a complicated probate statutory structure. The process is a little bit more difficult. I assume, in a lot of ways, that's because we're a retirement destination. I think there's a lot of exploitation in our state. When a person goes to the court saying, "My loved one has passed away and I want to get their property," there's really a lot of hoops that that individual has to jump through.

There's getting all the right notices put out there, noticing everybody who's entitled to notice that you are seeking to become the personal representative of the estate. There's notifying creditors. There's doing orders and notices of entry of order, and just a lot of different documents. There's letters of administration or letters testamentary that need to be filed. I'm all for do-it-yourself legal solutions; however, in the probate context I'm very, very confident that it's going to be much more economically advantageous to hire an attorney. Not just because it simplifies things and the attorney has the expertise to do that, but also because if the personal representative were to try to go it on their own and make a huge error, that can come back to them in the form of liability. I would strongly, strongly recommend that if you have to administer the estate of a deceased love one, that you contact Clear Counsel Law Group so that we can give you an idea about what to expect and how we might be able to help you.

At Clear Counsel Law Group, our goal, and our motto when it comes to representing individuals who have had loved ones pass away, is maximize your inheritance, not your attorney's fees. That's why we charge on a flat fee basis rather than some kind of hourly basis that can get way out of control. Come talk to us about how we can maximize your inheritance and minimize your attorney's fees by charging on a flat fee basis. We'd love to talk to you about it.

Estate Planning / Probate / Probate Videos - 11/07/2015

Are Children Liable for the Debts of Their Parents?

Will Children Have to Pay the Debts of Their Parents?

Transcript:

Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. One of the questions we get a lot in our probate practice is are the children going to be liable for the taxes or the creditors of the deceased individual? Obviously, think about it. If your mom and dad were to rack up a lot of debt, or taxes, or maybe have a judgment against them, you would legitimately be concerned whether or not those debts were going to come after you when they pass away. The answer is Nevada does not hold children responsible for the debts of their parents; however, you must understand also at the same time that the assets left behind by the deceased individual are responsible for the debts.

Let's say that there's a creditor. Let's just take VISA, a VISA card for $10,000.00, and your mom passes away, and she has a bank account that has $100,000.00, then that $100,000.00 bank account, if it goes into probate, would be liable for the $10,000.00 debt; however, that mom's actual children wouldn't themselves be expected to take money out of their pocket to pay off that debt. Just kind of a simplified answer is an estate is responsible for the decedents' deaths; however, the children are not. If you have a loved one who's passed away and left debts, Clear Counsel Law Group can help you resolve those debts and handle the probate so that, hopefully, we can maximize your inheritance and not the money that goes to the creditors. Feel free to give Clear Counsel Law Group a call.

Probate / Probate Videos - 11/02/2015

How to Learn the Status on Your Probate Case

How do you check on the status of your probate case?

Transcript:

Hi. I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group.

I do a lot of probate work. One of the questions that we get from time to time is, "I have a will that is being probated for a deceased loved one, but I really want to check on the status of that."

There are different websites in Nevada court systems that basically will tell us what the status of the case is. We can go on those websites and look up the case and see where they are in the probate process.

This is really important sometimes, especially if you have a personal representative named under the will who maybe isn't doing all the things they need to be doing or who is not maybe doing them as quickly as they need to be done.

If you're in a situation where maybe you're not the executor of the will, or maybe you're not the personal representative of the estate, and you want an opinion about whether or not the personal representative is actually doing their job, that would be a great reason to give us a call.

We will happily look up the case, let you know what has been done, what hasn't been done, the time frame that you're looking at, and the different elements that should be there.

That's something that we'd be happy to help you out with. Give us a call.

Estate Planning / Probate / Probate Videos - 10/31/2015

How Much is a Personal Representative Paid to Administer an Estate?

How is the compensation of the personal representative determined?

Transcript:

Hi, I'm Jordan Flake with Clear Counsel Law Group and I practice a lot in probate. One of the questions we get is, what kind of compensation can a personal representative expect to receive for acting in that capacity? Basically, the question here is, when someone passes away the court often has to appoint a personal representative to deal with that individual's assets. Of course that can be a difficult job sometimes. It can require ... It could be as easy as maybe liquidating a few bank accounts, but it could also be as difficult as cleaning out a house or notifying a bunch of creditors. There can be a lot that goes into that. The question is, what does that person get paid for all of their work?

In Nevada there's two ways that a personal representative gets paid. There's something called ordinary kind of statutory type fees. These are determined as a percentage of the overall estate. You could expect on maybe a $100,000, $200,000 estate to get paid $2,000 or $3,000 for your work as a personal representative. However, if you think you've done more than that, and you've had to do what's called extraordinary work such as cleaning out various storage sheds or a house. That would be covered under extraordinary work and the court basically just looks at what's fair and reasonable under those circumstances.

In any event, if you're listed as the personal representative on a trust or on a will, then feel free to give Clear Counsel Law Group a call so that we can help you with those responsibilities. Definitely if you've gone above and beyond just the statutory bare minimum for the kind of work you put in, then absolutely we're going to make sure that you're compensated fairly. If you're listed as the personal representative under a trust or a will, feel free to give us a call and we can help you out with this.

Estate Planning / Probate / Probate Videos - 10/29/2015

Does a Trustee Have the Option to Exclude Beneficiaries?

May a Trustee Unilaterally Exclude You as a Beneficiary?

Transcript:

I'm Jordan Flake with Clear Counsel Law Group. One question we get a lot in our probate practice is, can an executor of a will or a trustee of a trust unilaterally exclude a beneficiary from receiving their share. This is obviously a big concern if you're a beneficiary and you feel like the personal representative of an estate or the trustee of a trust is just kind of arbitrarily saying, "Yeah. I know you're listed in the will, but I don't like you and I don't want to give you anything."

The answer is that's not allowed. If the individual who left the last will and testament or the individual who wrote the trust leaves a beneficiary something through that document, then the executor or the trustee has to actually comply with those wishes. They can't just decide on their own not to give that gift. If you are the beneficiary of a trust or a will, and you are concerned that maybe you're not receiving everything that you're entitled to, then feel free to give us a call at Clear Counsel Law Group. We'll sit down with you and review the documents, and review your options.

Estate Planning / Probate / Probate Videos - 10/27/2015

A Short Conversation Explaining Undue Influence in Estate Planning

Some Good Information on Undue Influence

Transcript:

Hello. I'm Jonathan Barlow. I'm a probate attorney here at Clear Counsel Law Group. An important question that I'm often asked about is undue influence. It frequently comes up both in when we're preparing wills and trusts for people, but also often comes up after a person passes away.

What is undue influence? Undue influence is when a person who is in a position of authority over another person, who's called the vulnerable person, exerts influence or control over that other person to the point that the vulnerable person acts against his free will, or he does something that he otherwise normally wouldn't have done. Frequently we see that in the context of the vulnerable person creating a will or a trust where he leaves an unnatural gift to that other person who had been exerting influence over him. It's a question that often comes up from people who call in or write to our law firm.

In fact, I think Brian has some questions about undue influence right now.

Brian: You just mentioned an unnatural gift. Will you explain what that means?

Jonathan: Yes. An unnatural gift would be something that you wouldn't expect to see. For example, if we have Mom; Mom has three kids; a natural disposition of Mom's estate would be to give each child one-third. A third, a third, a third. If Mom's passed away, and suddenly a will pops up where 50% or 100% of her estate goes to the caretaker who had been coming in to help her with her medications, and her finances, and things like that, and the kids are cut out, or the kids' amounts are shrunk down to some degree, that would be unnatural. That's something that we wouldn't normally see happen. It certainly can happen, if Mom wants to, but it raises questions of why did Mom do that. Did she do that because she was exercising her own free will for the caretaker, or did the caretaker exert some type of influence, or undue influence, over Mom in creating that will? Did that kind of answer that question a little bit?

Brian: It did, but I am curious if it is possible at all to give an unnatural gift.

Jonathan: Good question. Yes, that's a good question. Let's say the will did pop up after Mom's passed away, and we have that situation where the caretaker gets 50%, and the other three kids, now instead of splitting the full, they're splitting the other 50% so they get a sixth each.

Yes. Mom absolutely can do that, an sometimes Mom wants to do that because she's grateful for what the caretaker did for her. Maybe all three kids abandoned her; they haven't been out to visit Mom for years, and Mom felt bad about that; she was grateful for what the caretaker did, and so she left a gift for the caretaker. Mom can do that, no doubt.

It's just a question of why did Mom do that. Did Mom do that because she was exercising her own free will in doing so, or did she do so because the caretaker had been giving her subtle suggestions? "Hey, Mom, let's go take you over to the attorney's office; I want you to sign a will. Don't you think it would be a good idea to decide what you're doing with your house? You know I'm living on my own, and I don't have a house." Suggestions like this could indicate some type of improper influence by the caretaker.

It's just a question of why did Mom do that: Did Mom do that of her own free will, or because the caretaker was influencing her to do so?

Anything else, Brian, you think about this question that's important?

Brian: I'm confused. Can just a caretaker exert undue influence, or can someone else, as well?

Jonathan: That's actually an excellent question, and it often comes up. The type of relationships that we watch for to see whether an undue influence is occurring, it's not confined only to a caretaker situation. That's a common situation because that's someone usually outside of the family. However, it's really any person who is in a position of authority or control over that other individual. Less frequently, it could possibly even be a spouse. That would be pretty unusual, but you could see a spouse improperly influencing their spouse to do something. More common, though, would be a child situation where a child may exert some type of improper influence over their mother or their father. For instance, a lot of times we see here in Las Vegas where one child lives here, Mom lives here, and the other kids live in the other parts of the country; so that one child has a lot more access to Mom. If we see Mom making larger gifts through the will, or otherwise, to this one child, we certainly question why is she doing that. Is that because that one child has access, and is exerting undue influence?

We typically would see someone like a healthcare provider, like a nurse or someone like that, helping in the house; it could be a friend down the street who is fulfilling the role of caretaker. It could be a spouse. That would be pretty unusual, but it could be a spouse, and it could often be a child who has access and control over her parent.

The most important thing in this analysis, and thinking about undue influence, is simply to determine did the vulnerable person act of his own free will, or did he do this thing, giving a gift to somebody else, because that person exerted improper, undue influence, or control over him, suggesting to him in ways that essentially destroyed his free will. That's the big question in undue influence, whether that person acted under his own free will, or not.

We have some excellent blog entries about this on our website, ClearCounsel.com.

Myself and other attorneys here have blogged about undue influence, a very informative blog post. We encourage you to go read those blog posts at ClearCounsel.com for more information.

Estate Planning / Probate / Probate Videos - 10/22/2015

How Probate Works in Nevada if You Live Out of State

Probate in Nevada for an out of state resident

Transcript:

Hi, I'm Jordan Flake. I'm an attorney in Clear Counsel Law Group. We often times get phone calls from individuals who live out of state of Nevada, who their parents have passed away, or one of their parents passed away here in Nevada. But they're out of the state. One of the questions they invariably ask is "Do I need to come out there? Do I need to come out and go through my parent's stuff? Do I need to come out there to meet with you in order to hire you to handle the probate matter? Do I need to come out to the court hearings in order to get the authority to deal with the estate?"

Most of the time the answer is no. We have a lot of out of state clients who we actually never meet face to face because as a full service probate law firm, we're able to cover all of the issues that can arise in having to administer an estate. Mom or dad passes away in Nevada, and you're living in South Carolina. That's really not a problem. We can talk to you on the phone. Give you all of the information. Hire individuals out here to perhaps clean up the property and send you the documents for review and signature, and really make you feel very involved in the whole process.

That being said, we oftentimes do have people who want to come out, because it's Las Vegas and it's a good opportunity to come out and visit. We're more than happy to have you come out and see us. Meet us face to face if that's going to help you get a level of comfort and familiarity. Please also know at the same time that if your parents pass away here, you can hire our law firm, and we can handle the entire process without you having to make the trip.

Probate / Probate Videos - 10/17/2015

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