Tiffany's Legal Blog

Nevada Guardianship: Changes in the Law

Effective October 1, 2009, the Nevada Legislature made the following changes to law regarding Adult Guardianship.  The following is a brief outline of these changes.  Although the term "proposed ward" is used most frequently in the statues to refer to a person as to whom Guardianship over is requested, I prefer the term "Individual". 

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act:

Nada has adopted this, in part-- this Act makes it easier for inter-state Guardianships to be recognized in different states and to determine which state has the appropriate jurisdiction. It also makes it less cumbersome to transfer proceedings from state to state, and to enforce a out-of-state Guardianship order.

Increased Rights of Due Process: The initial petition for guardianship filed must now include:

1) A certificate signed by a Nevada Licensed (or VA employed) Physician

2) A letter signed by any government agency in Nevada who conducts investigations; or

3) A certificated signed by any person the court finds qualified stating why a Guardianship is deemed necessary.

Right to Counsel

The Individual must be advised of his or her right to counsel, either in Court or by a qualified person singing a certificate excusing the attendance and certifying that the proposed ward was advised of his/her right.  If an attorney is requested, the Individual's funds will be used to pay for counsel.

Legal 2000

If an Individual was committed involuntarily to a facility, the facility must notify the Guardian before the Individual is released.  Then, the Guardian will have the ability to find an appropriate setting for the Individual to be released to.  If the Guardian does not make this determination, then the facilty may use its own plan.

Placement in a Locked Facility

The Guardian of the Individual may move them into a secured residential LTC facility if:

1) The Court previsiouly gave such authority to the Guardian; or

2) The Transfer is made purusant to a written recommendation by a Licensed Physician, a VA Physician, a Licensed Social Worker, or an employee of the county's Senior Protective Services.

At this point, the Guardian must file a report with the Court within 10 days of of moving the Individual to the facility.  This report must of course includethe written recommendation.

Miscellaneous

1) A guardian must keep records for at least 7 years after the last financial dealings

2) Facilities must give accountings to the guardian on a quarterly basis

3) The burial exemption has been increased from $1500 to $3000 (safe from all claims)

Alzheimers' Facts and Figures

As many as 5.3 million people in the United States are living with Alzheimer’s.

• Alzheimer's and dementia triple healthcare costs for Americans age 65 and older.

• Every 70 seconds, someone develops Alzheimer’s.

• Alzheimer's is the seventh-leading cause of death.

• The direct and indirect costs of Alzheimer's and other dementias to Medicare, Medicaid and businesses amount to more than $148 billion each year.

These are just a few of the facts in the new report, 2009 Alzheimer’s Disease Facts and Figures, published by the Alzheimers Association. The report is a comprehensive statistical abstract of U.S. data on Alzheimer’s disease that includes:

• prevalence 
• mortality
• the costs of Alzheimer care
• caregiving
• a special report on Mild Cognitive Impairment and early-stage Alzheimer's

Why Incorporate in Nevada?

Why Incorporate in Nevada?

• No Corporate Income Tax
• No Taxes on Corporate Shares
• No Franchise Tax
• No Personal Income Tax
• Nominal Annual Fees
• Nevada corporations may purchase, hold, sell or transfer shares of its own stock.
• Nevada corporations may issue stock for capital, services, personal property, or real estate, including leases and options. The directors may determine the value of any of these transactions, and their decision is final.
• No Franchise Tax on Income
• No Inheritance or Gift Tax
• No Unitary Tax
• No Estate Tax
• Competitive Sales and Property Tax Rates
• Minimal Employer Payroll Tax - 0.7% of gross wages with deductions for employer paid health insurance
• Nevada's Business Court
  • Developed on the Delaware model, the Business Court in Nevada minimizes the time, cost and risks of commercial litigation by:
    • Early, comprehensive case management
    • Active judicial participation in settlement
    • Priority for hearing settings to avoid business disruption
    • Predictability of legal decisions in commercial matters

Why Create a Trust? Because it's too expensive not to.

Reason Four: Planning for Taxes and Expenses

    The final part of our definition of estate planning addresses taxes, fees, and costs. One of the
most famous quotations about taxes comes from Judge Learned Hand who wrote:

Anyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes. (Gregory v. Helvering, 69-F.2d 809)

While saving on taxes and expenses is an important aspect to effective estate planning, please be assured that we will not recommend actions that will ever compromise the first goal of maintaining control. Even if you do not have a taxable estate, probate costs can run anywhre from 3-12% of the GROSS value of your estate.  The secret of good planning is to reduce taxes and costs while always retaining control.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.

Why Create a Trust? So your wicked step-sister doesn't get your money...

Reason Three: Giving Your Property to Whom You Want

    After you have controlled your property while you are alive, and have planned for your
incapacity, then you can look forward to giving your property to others at a time or times of your
choosing. Please remember the Trustmaker is able to transfer property during life as well as at death
through the use of an effective trust plan. Our laws allow the Trustmaker to control his property,
and to pass it in the manner he chooses to the beneficiaries with amazing latitude and flexibility.
This is true with the caveat that one must initiate the process while one is still able.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.

Why Create a Trust? Incapacity Issues...

Reason Two: Incapacity

    After control, the definition of estate planning addresses incapacity. Statistics show that the odds
of suffering a debilitating mental or physical disability are about six times greater than the odds of
dying. Due to the great risk of incapacity it is imperative to plan for such a life-changing event.
Through proper and effective planning, you can control how you are cared for during incapacity.
Additionally, you may purchase long-term health care and/or disability insurance or implement
savings plans. It is also possible to leave instructions about physical care in the event of
incapacity.
    Estate plans can clearly direct how property and money should be used for the incapacitated and
your loved ones, thereby overruling the state’s own dictates. In order to exercise this control, one
must do so while still competent.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.

Why Create a Trust? Control!

Reason One: Control

    The most important element of our definition of estate planning for nearly every client we have
met with is control. The most important step you need to take to gain control of your assets is to
create an effective estate plan. If you do not write your own plan, the state will write it for you.
    If you die without an estate plan, you are deemed to have died intestate. In this case, state laws
direct how your assets are to be inventoried, valued and distributed. If you should become
incapacitated without affecting formal planning for that event, there is another set of states laws
that directs what will happen to you and your property.
    State laws also control other aspects of one’s life and property. For example, joint tenancy
property may be tied up in the courts if one of the joint tenants becomes incapacitated or if there
are creditor problems. To exercise estate-planning control, you must take responsible action to implement and use your own estate plan to dictate your wishes, rather than leaving it to the state.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.

Why Create a Trust?

    Everyone who wishes to accomplish complete estate planning objectives should consider and
implement a living trust-centered plan. A living trust-centered plan is the only type of estate
planning that can meet all of the elements of our “definition” of effective estate planning.

Our “definition” of effective estate planning:

• I want to control my property while I am alive.
• I want to take care of myself and my loved ones if I become disabled.
• I want to give what I have to whom I want, the way I want, and when I want.
• If I can, I want to save every last tax dollar, professional fee, and court cost possible

Remember- probate in Nevada starts when you have $20,000 or more in your name... not much.  For this reason alone, many people should consider a living-trust based model for their Estate Planning needs.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.

What is a Trust? Part 2... What Can a Trust do for Me?

    Trusts can be tailored to achieve a variety of objectives. Trusts can provide property
management for yourself, your spouse and children, and others that may be dependent upon you.
A trust is also an excellent devise for management of property for the benefit of a beneficiary for
whom outright property ownership is not appropriate, is burdensome or is impossible. Trusts also
are used to give lifetime use of property to a person (or a group) while ensuring that others
eventually will inherit the remainder of the property. This can be particularly effective if the
Trustmaker has the goal of avoiding estate taxes in subsequent generations, as well as, in second
marriage situations. A fully funded Trust will avoid probate, which should reduce or eliminate
the delay and costs of distributing property upon death normally associated with Probate.
    Revocable living trusts can sometimes be difficult to conceptualize, especially for people who
have not read or seen on actually work. An analogy of “baby-sitter instructions” can be used to
describe a living trust. When parents leave their minor children with a baby-sitter for a getaway
weekend, the baby-sitter typically receives several minutes of verbal instruction accompanied by
written notes detailing all sorts of matter that need thought, attention, and action. Even after
leaving, isn’t it a common scenario that the parents stay close to a telephone and are not reluctant
to use it to add instructions and to confirm that all is right with their children and household?
A well-drafted living trust is like a set of baby-sitter instructions for the care of loved ones. The
instructions tell the Trustee – the baby-sitter – how to care for the beneficiaries – their children.
The instructions are as detailed as possible to cover all of the expected and unexpected events that
might occur. Not only do these instructions tell the Trustee how to use the money and property to
care for the beneficiaries, but will frequently explain to the Trustee why the Trustmaker left those
instructions.
    When you think of baby-sitter instructions, you might think that they would only apply to loved
ones. On the contrary, one of the most important features of a Revocable Living Trust, and that a
Will does not have, is its ability to provide instructions for the care of the Trustmaker. A
Revocable Living Trust is valid and operational the day it is signed. If the Trustmaker becomes
ill or incapacitates, the living trust can control the Trustmaker’s property for his benefit or for the
benefit of others without the intervention of the court. By contrast, a Will can only function after
the death of its maker and is unfortunately subject to probate; a Revocable Living Trust cares for
its Trustmaker immediately and avoids both a living and death probate.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.

What is a Trust? Part 1...The Basics

In its simplest form, a trust is an agreement that provides for the management of property. A trust
involves at least three parties:
    • The Trustmaker, sometimes referred to as the settler or grantor, is the person who creates the
    terms or rules of the trust;
    • The Trustee is the person who agrees to accept the Trustmaker’s property and manage it as the
    trust directs, and;
    • The Beneficiary is the person who receives the benefit of the property held in the trust.

Typically, this is the Trustmaker during his lifetime and the children of the Trustmaker when the
trust terminates.

The Revocable Living Trust Document

    A revocable living trust (RLT) is a trust document created during the Trustmaker’s lifetime. An
RLT is often referred to as an inter vivos trust, which means during life. The trust is revocable
due to the Trustmaker’s ability to terminate and amend the trust.
    The Trustmaker generally names himself/herself as the Trustee and the beneficiary of the trust
during his/her lifetime. The Trustmaker also names disability Trustees to act for his/her benefit in
the event of disability and death to management the assets of the trust following the Trustmaker’s
death. The death Trustee is typically charged with the responsibility of settling the obligations of
the trust and distribution to the beneficiaries.

Funding The Trust

    After a Trustmaker has executed a revocable living trust, the Trustmaker then needs to fund the
trust. Funding is the process through which the individually-owned assets of the Trustmaker are
re-titled and transferred into the trust. If assets are not placed into the trust, the Trustee lacks
authority to manage the assets, since the Trustee only has authority with respect to assets
contained within the trust.
    In Community property states, such as Nevada and California, generally married couples create a joint revocable living trust. The married couple will each re-title their property into the name of their trust, which creates a funded trust.
    Re-titling is performed in different fashions for different assets. For example, a checking account
held in the name of John and Mary Sample will be funded into the Sample’s Revocable Living
Trust by re-titling it as John Sample and Mary Sample, Trustees of the Sample Living Trust dated
(the date the trust is signed.)
    A similar action will be taken in regard to all of their other assets, such as real estate,
automobiles, boats, investment accounts, securities, and any other asset with a title. Assets that
do not have titles will be transferred into the trust by an assignment of personal property. An
assignment of personal property is merely a document, which indicates the Trustmaker’s
intention to transfer all of property without title into his/her revocable living trust.
    Once the revocable living trust has been funded, it will control all of the assets in its name.
Inversely, a trust will not control assets not titled in its name. A well drafted revocable living
trust will not only include direction on how to manage property, but also give instructions for
how the Trustmaker or the Trustmaker’s family and loved ones are to receive the benefits of the
trust. The trust also makes provisions for how the Trustmaker is to be cared for in the case of the
Trustmaker’s disability and/or death.
    A well-written living trust document will outline the Trustmaker’s financial and personal
intentions, be clear in its directives and be protectively locked within the law.

This document was provided compliments of the Wilson Law Group, LLC, a WealthCounsel firm located in Madison, Wis.  Changes have been made to the original document.