Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

702-522-0696

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[+]

Footnotes
↑1	Of course you are!

Filing a Lawsuit for Salmonella Infection.

Hearing a friend got “food poisoning” is always sad, but an infection with salmonella is no laughing matter. Salmonella infections can cause severe health issues and even cause death. You should never feel reluctant to file a lawsuit for salmonella infection. Salmonella infections contracted at a restaurant or from a commercial food product are almost always due to the negligence of those preparing, harvesting, or transporting the food. In other words, you could have been saved from salmonella if they had only taken reasonable precautions to keep you safe.

How do I file a lawsuit for salmonella infection?

This is the kind of thing you really should use an attorney for. Yes, it's possible to go it alone, however our experience tells us that the insurance companies don't take people seriously until they've got a lawyer. So what's the first step?

Talk with an attorney. Our experienced personal injury attorneys can tell you if you have a viable case, and what to expect if you go forward. There's a lot of factors that must be considered before setting out on the challenging path of fighting the insurance companies. Our knowledge becomes your power, as we can tell you what to expect, what we've seen, and more. Talking with one of our attorneys or case managers is free, and we don't charge you anything unless we win.
Continue treatment. Don't stop your medical treatment for your salmonella infection till you're 100% better. Do you need help finding a specialist? We can help. These medical records will be pivotal in getting you the compensation you deserve for your injuries.
Never give up. We will be with you every step of the way.

In this article, we will examine some of the issues that can arise from a salmonella infection, and the reasons you may want to consider filing a lawsuit for salmonella infection.

What is salmonella food poisoning?

Salmonella is a bacteria that causes one of the most common intestinal infections in the USA. Of those infections, MOST of them come from commercial food – restaurants, commercially harvested vegetables, supermarkets, etc. The majority of salmonella food poisonings are not induced by home meal preparation.

The worst part about salmonella infections is that they can be much MUCH worse than a typical “Food poisoning.”

What happens when salmonella infections get worse?

Salmonella infections can lead to terrible complications, from blood infections to irritable-bowel syndrome, to kidney failure and even death. Infants and immune-compromised people are especially at risk of salmonella causing a worse infection or invasive disease. You should always seek medical treatment, and, when it’s clear the infection was caused by a restaurant, grocery store, or other commercial enterprise, you should file a lawsuit for salmonella infection.

Worst case scenarios of salmonella complications include:

Blood infection – Bacteria manage to infect the bloodstream. This is considered a life-threatening problem. The blood carries the infection throughout your body.

Reactive arthritis – reactive arthritis can be caused when salmonella causes a secondary infection which causes the joints to become inflamed, even though the infection is located in a totally different part of your body. Remember, an inexperienced doctor might dismiss joint pains as unrelated to your salmonella infection. A good salmonella infection lawyer can help you get access to the specialists who can recognize and diagnose reactive arthritis properly. This inflammation can occur weeks after the infection and last for months or even years.

Typhoid fever – the life threatening disease typhoid fever is a form of salmonella poisoning. These infections can cause kidney failure which can severely shorten a lifespan.

Kidney failure – Salmonella can lead to kidney failure in many ways, from accumulation of toxins in the kidneys to damage by proteins that the infection has damaged. Nobody facing “food poisoning” thinks it could end up leading to a life of dialysis, but it has happened.

Organ failure – invasive salmonella can spread throughout the body and attack your internal organs. In some cases this leads to death.
Nobody who goes out to eat deserves a lifetime of kidney treatments. Nobody picking up a salad at the grocery store should have to endure years of severe joint pain. If you’ve had complications due to a salmonella infection, you should file a lawsuit.

Why use an attorney on your salmonella lawsuit?

Consider this: Before you were infected, did you know that salmonella could lead to years of severe joint pain? Did you know a side effect of salmonella infection was kidney failure? If you’re like most of us, you probably didn’t even know these things. The insurance companies covering the restaurants and the grocery stores are counting on you not knowing anything.

You need an attorney with experience in salmonella lawsuits. We know how to find the specialists who can get you the right diagnoses, and who can testify in court that your pain and suffering is very real and deserves fair compensation.

If you’ve been infected by salmonella, give us a call. We can have a frank discussion about your rights and if you should file a lawsuit for salmonella infection.

Personal Injury - 09/28/2018

Probate of Mobile/Manufactured Homes in Nevada

What do you do if mom or dad’s estate includes a mobile or manufactured home? There are a few important questions to answer which will dictate the process to follow to transfer the asset to the rightful heirs or beneficiaries.

Has the Mobile/Manufactured Home Been Converted to Real Property? Mobile home ownership information is tracked by the Nevada Department of Manufactured Housing (www.mhd.nv.gov – “NDH”). Title information is searchable on NDH’s website by structure serial number, owner name, or address.

After you have located the relevant mobile home on the NDH website, the entry will state whether the structure has been converted to real property. In Clark and Washoe County, the online property records will also identify whether the mobile home has been converted to real property.

If the mobile or manufactured home has been converted to real property, then you must transfer that asset through probate by way of court order or deed.

Do you have the original title? A manufactured home has a title similar to a car title. If the mobile home has not been converted to real property, then you need to locate the original title. If the original title is lost, you can request a duplicate copy from NDH. You will need a title to make the transfer pursuant to the appropriate probate proceedings as discussed more below.

What is the Value of the Mobile Home? To complete any probate proceeding, you must obtain a reasonable estimate of the total value of the assets, including the mobile home. There are various ways to price a mobile home, including appraisers, online resources, or comparable sales in the area. The value of the mobile home (and any other assets to be dealt with in the probate) will dictate the probate process required to transfer the unit. Assuming the mobile home is worth $25,000 (or $100,000 if you are a surviving spouse), and assuming it has not been converted to real property, the asset can be transferred using an Affidavit of Entitlement form that is available on the NDH website. If the value of the mobile home exceeds $25,000 then you may want to consult a probate attorney to determine the best course to transfer the asset through the appropriate court filings.

There may be other important questions to consider to accomplish the probate transfer of a mobile home, so please call for a free probate consult. Thank you.

Probate / Real Estate - 06/22/2018

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 will The 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.

Estate Planning / Probate - 05/22/2018

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.

Estate Planning / Probate - 04/11/2018

It's Time for Your 2016 Awards! Fun!

We had quite the year here on the legal blog! Thanks for joining us for the ride!

In 2016 we doubled down on our approach to produce marketing content that benefits the Nevada community, and dare I say, it was a resounding success.¹⁾Only meaning that our growth in web traffic validates this course of action

To show my appreciation for all of our new viewers, I prepared a Special 2016 Awards!

Because you deserve a little bit more than regurgitating information we already published, I tried to mix things up.

As to my methodology, presume an immense of amount of undue influence/corruption. This is entirely biased.²⁾These results aren't even final.

With that, (I assume you are donned the appropriate long-tail jacket), we begin!

The 2016 Awards: ClearCast of the Year!

ClearCast Episode 4 wins hands down. To this day, I have yet to see anyone else beside Jonathan articulate the difference between 'free speech' and 'workplace rights'.

Sure Kaepernick can kneel..but his employer could likely fire him for it as well (Not in this case, as Jonathan notes, the NFL is collectively bargained).

Fun!

The 2016 Awards: Entrepreneur(s) of the Year

It was a tie! And unfortunately we still don't have time for a recount.

First, our friend³⁾I regret forgetting his name selling wares outside of President Obama's rally in North Las Vegas.

..I really should have purchased that McGovern poster when I had the chance. Darn.

Trump Obama Vegas

Yes, all that man does is win. One can only guess how he is winning the post-election.

..Like I said, there was a tie. Our friend above tied with anonymous bloggers of Macedonia that learned how to make a living off of Donald Trump clicks.

There's been much too much written about fake news post-election (you better believe I got in on the action), but not nearly enough on why people want to click on headlines like "Hillary eats people." I hope to explore that more next year..

The 2016 Awards: ClearCast I That Needs More Attention If I Do Say So Myself..

ClearCast Episode 5 on San Francisco federal court taking gun rights away from Nevadans!

This is terrible precedent established by the 9th Circuit earlier this year. In essence, they ruled that if a Nevadan (remember, this is a California-based court) possess a medical marijuana card, (just the card! they don't need to prove anything else..like actual consumption) she may not purchase a gun.

Think about that for a second. Her firearm licenses is dependent upon her medical condition?

..See! What did I tell you!

The 2016 Awards: 'Who Wore It Best?' Award Winner of Campaign 2016:

Duh?

This one looked like it would be a barn-burner between the good Senator from Vermont and our friend Jeb!,(did he wear the same sweater 4 days in a row?), Bush.

But unfortunately, as it turns out, Jeb!'s⁴⁾Yes, that's correct entry came in late December 2015..tough year for our friend from Florida. I don't think we've seen the last of Jeb! just yet..

The 2016 Awards: Best 2016 Election Content

Tie again!⁵⁾There's no way they will let me run this election again next year..this just isn't possible

Both, however, tried to move the conversation forward regarding Question 2, marijuana legalization.

Nevada marijuana

First, we went on location with the president of the Nevada Dispensary Association, Andrew Jolley, to give him an opportunity to explain why he supported passage without all the name-calling/exaggeration.

Folks seemed to have appreciated the straight talk. Happy to help!

Pat Hickey, Question 2, Las vegas, marijuana

Next, we sat down with a prominent opponent of marijuana legalization, Pat Hickey, and he was kind enough to spend 30 minutes explaining why feels so passionately about the subject.

We've been in talks with Pat (After popular demand!), and hope to have him back to discuss education policy/ESAs in the near future.

The 2016 Awards: Content That Could Improve Our Quality of Life⁶⁾Man I love this show..all I do is win

Clearly to my 'Not-Very-Modest Proposal' to update Nevada's election laws!

Please do this, Nevada electeds. The post lists 10 very good reasons why, including how much safer/easier voting would be for our senior citizens (Not to mention over 80% voter participation!).

And while you're at it, how about a state primary? We don't need to go through that silly caucus stuff again..

The 2016 Awards: The Best ClearCast About Clowns

This category..not as close as some of the previous. We've got to give the award to Episode 8.

I'm sure there were at least two other instances where Jordan asked me, "Is that a clown question, bro?," but neither was as clowny as Episode 8.

(Those were the days).

The 2016 Awards: Browbeat of the Year

Las vegas water laws, 2016 awards

Can't say I was as excited to win this award as much as a couple of the previous, but alas, here we are.

Over the summer, a neighbor of ours⁷⁾I'm not here to name names was watering their grass during the very hot/sunny daytime hours.⁸⁾Violating the law

How did I respond? With more than 3000 words explaining how with behavioral economics, we can understand why the water law is inefficient.

(And yes, they turned the sprinklers off.)

Joking aside, we want to thank you all for a wonderful year.

We appreciate the love and support of the Las Vegas Valley ; know that we aim to do even better in 2017!

Thanks for reading. Seriously.

-Brian

Footnotes[+]

Footnotes
↑1	Only meaning that our growth in web traffic validates this course of action
↑2	These results aren't even final.
↑3	I regret forgetting his name
↑4	Yes, that's correct
↑5	There's no way they will let me run this election again next year..this just isn't possible
↑6	Man I love this show..all I do is win
↑7	I'm not here to name names
↑8	Violating the law

ClearCast / General Interest / Las Vegas / Nevada Law / News - 12/28/2016

Sure, Change the Moped Law...But Was it Really for Public Safety?

"..to combat moped theft."

Unfortunately folks, the Golden Era of riding a moped in Las Vegas is coming to end. We'll always have Paris though, right?

I may be the bearer of bad news, but I promise this is the type of thing you wanted to be aware of in December before it went into effect. I'm on your side.

Your friends in the Nevada legislature updated the moped laws in the 2015 session. But it was for your own good! See above.

Today we will take a look at the new law and clarify the confusion out there so that when it goes into effect on January 1, you will be prepared. Additionally, I will, toward the end of the discussion, explain how they could make the law more fair to moped riders.

But Brian, haven't you picked on the legislature enough this year already? If any of my friends from up north are reading, it was the fact that you all keep saying you are doing this for the sake of the moped riders that spurned me to investigate further.

So they wrote a new law did they..

Nevada SB 404 Brought an End to All of Your Moped Fun

Remember the good old days when you could go on the amazon, buy a foreign-made motor vehicle, and plug-and-play. Those were the days.

..And here come the squares. Again, please don't get mad at me. I'm just telling you what the law is.¹⁾Frankly, I'm helping

moped las vegas nevada law

Now for any of you out there that think licensing moped riders is a simple endeavor, allow me to dispel you of that notion. Crazy how something so simple is so technical to implement.

Let's start with definitions (These are from 2009). Suppose moped is an excellent place to start.

NRS 482.069 “Moped” defined. “Moped” means a motor-driven scooter, motor-driven cycle or similar vehicle that is propelled by a small engine which produces not more than 2 gross brake horsepower, has a displacement of not more than 50 cubic centimeters or produces not more than 1500 watts final output, and:

1. Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

2. Is capable of a maximum speed of not more than 30 miles per hour on a flat surface with not more than 1 percent grade in any direction when the motor is engaged.

The term does not include an electric bicycle. (Added to NRS by 1975, 1075; A 1983, 895; 2009, 394)

"[D]oes not include an electric bicycle"? What else would you call these things?! It's right about at this moment when I notice the public get annoyed. I swear there is a good reason for these distinctions. Here's the electric bicycle definition.

NRS 482.0287 “Electric bicycle” defined. “Electric bicycle” means a device upon which a person may ride, having two or three wheels, or every such device generally recognized as a bicycle that has fully operable pedals and is propelled by a small electric engine which produces not more than 1 gross brake horsepower and which produces not more than 750 watts final output, and:

1. Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

2. Powered solely by such a small electric engine, is capable of a maximum speed of not more than 20 miles per hour on a flat surface while carrying an operator who weighs 170 pounds.

The term does not include a moped. (Added to NRS by 2009, 394)

Ok, fair enough. But what if my "moped" can go faster than 30 mph?

NRS 482.070 “Motorcycle” defined. “Motorcycle” means every motor vehicle designed to travel on not more than three wheels in contact with the ground, except any such vehicle as may be included within the term “electric bicycle,” “tractor” or “moped” as defined in this chapter.

[Part 1:202:1931; A 1951, 165; 1953, 280]—(NRS A 1975, 1075; 2009, 394)

See it? A moped displaces "not more than 50 cubic centimeters." Displacing more than 50ccs gets the bike classified as a motorcycle.²⁾My television pilot, Fun with Statues, is still available to be picked up! Why wait Netflix?

What Changes in the Law for a Moped Starting 1 January?

This is a fun tool your State of Nevada provides free of charge to the general public. That PDF includes the text of the Revised Nevada³⁾See what I did there? Statutes revised by SB 404. When you see text in blue, that's language that has been added to the statutes. Text that has been crossed out in red has been removed from our statutes.

I can exemplify the changes in the 36 page bill from Section 9:

Sec. 9. NRS 482.384 is hereby amended to read as follows: 482.384 1. Upon the application of a person with a permanent disability, the Department may issue special license plates for a vehicle, including a motorcycle [,] or moped, registered by the applicant pursuant to this chapter. The application must include a statement from a licensed physician certifying that the applicant is a person with a permanent disability. The issuance of a special license plate to a person with a permanent disability pursuant to this subsection does not preclude the issuance to such a person of a special parking placard for a vehicle other than a motorcycle or moped or a special parking sticker for a motorcycle or moped pursuant to subsection 6.(emphasis present)

They did a quick Cntl-F and added "or moped" to the statutes whenever there was motorcycle. Simple enough.

The obligations/liabilities for motorcycle riders now apply for moped riders too.

Apparently, there was a question amongst the legislature if a moped is dangerous enough to be classified as a motorcycle. I deduce this by the legislature requiring that a moped by registered once, but not requiring the moped to be registered yearly like a motorcycle.

And given that the question is not that obvious, they hedged.⁴⁾A good strategy for compromise/less so for logically consistent law The question remains, why do other vehicles need to be registered yearly, while once is sufficient for a moped?⁵⁾Makes you wonder about those DMV fees..

If the New Moped Law is About Public Safety, Why Not Just Say So?

Metro isn't hiding the ball/trying to trick anyone. Chuck Callaway explains to the Las Vegas Sun:

Chuck Callaway, Metro Police director of intergovernmental services, helped shepherd the law through the Legislature. He believes it will act as a deterrent and help police nab thieves: Officers will have a reason to stop any moped without a plate, and those with plates can be run through a patrol car’s computer.

Callaway said that while he was surprised the rejection rate for moped registration might be as high as 50 percent, he knew many vehicles wouldn’t qualify. “The reality is, they’re motorcycles but they’re operating under the guise of being a moped. Registering them will help in that regard with public safety.” (emphasis added)

They say they will allow January 2017 as a period for people to register, but as of 1 January, Metro will be permitted to do this by statute. I know there are a lot of folks that are mad about the new laws, but let's keep things in perspective. They didn't have to tell you; although you may ask questions about intent, implementation has been fair.

Are Moped Drivers Actually a Risk to Public Safety?

I'm sorry if I don't believe that this is really all about moped drivers losing their bikes; if that was the case, the state would have made this law optional for moped drivers that felt in danger. That way, the way would be specifically tailored to just the folks that need it, while it would balance the (what many moped drivers are saying are) overbearing costs of having them register such an insignificant vehicle.

Mandatory registration is different. It benefits the state in two distinct ways:

1. As discussed above, the law provides legal protection for police officers to pull over an unregistered moped. Don't underestimate the importance of positive legal authority. But..

2. Provides additional revenue.

What has yet to be discussed (by anyone from what I can see) is the revenue angle to the new law.

Now if moped riders were causing a high number of accidents, our community would be justified in having them register/collect fees for pay for the harms. No one even has the audacity to even claim this. Recall my opening quote.

Doubtful, also, that this is the most efficacious means raise needed revenue. What if we find out that the new regulations price out people from driving a moped and s/he can't get to work anymore?⁶⁾This is just one example That's a net loss for all of us.

I say again, if this new law only is about protecting moped riders, make the registration optional. That way, the riders that need protection can have it, and those riders that cannot afford to register their moped do not have to.

Thanks for reading.

If you actually wanted to take the class (I don't know how to drive a motorcycle, this includes me.), the College of Southern Nevada has a lot of great options for not very much money.

Footnotes[+]

Footnotes
↑1	Frankly, I'm helping
↑2	My television pilot, Fun with Statues, is still available to be picked up! Why wait Netflix?
↑3	See what I did there?
↑4	A good strategy for compromise/less so for logically consistent law
↑5	Makes you wonder about those DMV fees..
↑6	This is just one example

Nevada Law / General Interest / Las Vegas / News - 12/19/2016

Nevada's Loyalty Pledge Law Regarding the Electoral College Violates the Constitution

"If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate...I know there’s been talk about that in other states but that will not happen here."

-Nevada Secretary of State elections deputy Wayne Thorley

What if I was to tell you the electoral college..isn't a college at all?¹⁾Sorry

Worse, this ragtag group of federal officials still don't even have office space, after all this time.

Finally, though, the electoral college has made its way to the national consciousness²⁾and here i thought my "Opaque election rules and procedures" club would get off to a much faster start. I'll talk to the marketing guy.., so I thought it'd be fun to talk about what the electoral college is, what they will be doing next Monday, and most importantly, examine if laws that command a federal electoral vote a particular way are constitutional.

Luckily, our elected officials gave us some great material to work with.

"Haven't I Voted Twice This Year Already?"

Well, if you start in February, a few. One more, I promise. And this time you don't even need to participate. Your job as engage citizen voter is completed for this year.

In November, you didn't vote for president, but for electors that will vote for president this coming Monday, 19 December. The following six people were elected from Nevada:

Dayananda Prabhu Rachakonda (The only one from Las Vegas. Will the Tyranny of the North know no bounds??)
Larry Jackson
Joetta Brown
Paul Catha II
Greg Gardella
Teresa Benitez-Thompson

On Monday, these 6 federal electors will convene in Carson City because the electors do not meet in one place, but at all the state capitols. This has been in effect since 1948.

In all previous elections the electors voted the same way as the people who elected them, and given that Nevada voted for Hillary Clinton, it is fair to assume that all six will vote for Hillary too.

But do they have to?

For the first time in my lifetime (likely yours too), there is serious talk of if the electoral college voters may express a different preference than that of the voters. (Vote for someone else)

Today I am not asking should the electors vote their faith, only if they can.

Now, I try not to be too tough in this forum³⁾This does function as marketing material as well, as I'm sure you are aware, but the Secretary of State elections deputy Wayne Thorley put out quite the statement in the press regarding this subject:

Secretary of State elections deputy Wayne Thorley said both major parties submitted the names of their six electors, one for each Nevada member of the House and U.S. Senate, well before the election.

He said since Hillary Clinton won the popular vote in Nevada, it will be the Democratic list who meets and votes that date. Rather than all 535 Electoral College electors going to Washington D.C. for that vote, they meet in each state capitol so that vote will take place in the capitol as well.

He said under Nevada law, they’re required to vote for Clinton and Tim Kaine.

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate,” he said. “I know there’s been talk about that in other states but that will not happen here.”

Wait wut?

"We'll bring in an alternative" is quite the loaded statement.

Some potential questions consider:

Who is the "we" he is referring to? Does the Elections office have its own enforcement arm? Since when?

What do you mean by "bring"? Is that a physical threat against a federal official?

Who is the alternative? Which alternative is selected first? What behavior needs to be exhibited to trigger this threat?

(I can keep going.)

Most importantly, the assertion that Nevada's electors have to vote for Clinton/Kaine is unconstitutional and false. (And disappointing as a Nevada citizen to see an elected official make).

Let's not get mad at Wayne though, he's not the only elected official in Nevada that does not understand this. Our legislature actually put one of these silly loyalty pledge⁴⁾What year is it? laws on our books in 2013:

NRS 298.065 Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.

      1. The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.

      2. If a nominee for presidential elector is not present to vote at the meeting, the position of presidential elector to be filled by that nominee for presidential elector is vacant and the vacancy must be filled as follows:

      (a) If the alternate is present at the meeting, the Secretary of State shall appoint the alternate to the position of presidential elector;

      (b) If the alternate is not present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person chosen by lot from among the alternates present at the meeting, if any;

      (c) If no alternates are present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person who is:

             (1) A qualified elector;

             (2) Present at the meeting; and

             (3) Chosen through nomination by and plurality vote of presidential electors who are present at the meeting; and

      (d) If votes cast pursuant to subparagraph (3) of paragraph (c) result in a tie, the Secretary of State shall appoint to the position of presidential elector a person who is chosen by lot from those persons who tied for the most votes.

      3. If all the positions of presidential elector are vacant and no alternates are present at the meeting, the Secretary of State shall appoint from the qualified electors one person to the position of presidential elector, and the remaining positions must be filled pursuant to paragraphs (c) and (d) of subsection 2.

      4. The nomination by and vote of a single presidential elector is sufficient to choose a person to be appointed to the position of presidential elector pursuant to subparagraph (3) of paragraph (c) of subsection 2.

      5. Except as otherwise provided in subsection 6, a person appointed to the position of presidential elector pursuant to this section may not serve in that position unless the person signs a pledge in substantially the following form:

I agree to serve as a presidential elector and to vote only for the nominees for President and Vice President of the party or the independent candidates who received the highest number of votes in this State at the general election.

      6. If a person appointed to the position of presidential elector pursuant to this section is physically unable to sign the pledge, the pledge may be signed by proxy.

      7. If a person appointed to a position of presidential elector pursuant to this section does not sign the pledge described in subsection 5, that position of presidential elector is vacant and must be filled pursuant to this section.

      (Added to NRS by 2013, 1231)

      NRS 298.075 Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.

      1. The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.

      2. After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:

      (a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.

      (b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:

             (1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and

             (2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.

      3. Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

I thought there was consensus among legal professionals of how federalism works, but apparently not.

You have to be wondering before we get into the legal weeds (I know I was), where did this come from/who's idea is this?

(This is the part that doesn't make the legislature look very good).

..It was copied and pasted from a lobbyist organization called Uniform Laws.⁵⁾If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer's book on the topic is excellent

The people who do this for a living (shadow-write your state laws) don't think the public is offended by this idea that people would sit in Washington D.C. and write your Nevada laws.⁶⁾This has always shocked me. Not only do they keep a public-running tally of the states in which they've succeeded, they even provide a handy map as a visual aid.

Map of the 4 States

Our legislators didn't even have the shame to not openly admit that this law was suggested by a lobbyist; the notes from the 2013 session say explicitly they are adopting this uniform law.⁷⁾Please have more shame going forward

Justification for laws often takes place in the Legislative Digest (for example I am writing about the new moped law, and the digest says taxing/regulating mopeds is the the safety of the riders. No, no, not today..). Here is the Digest for the loyalty pledge law. It provides no justification at all. You would think for as something as important as elections..

So why did Nevada, after voting in one manner since 1948, need to update the voting laws in 2013? The best rhetoric you can find is this for-profit argument (as in, he was told was conclusion to have and then justified it accordingly) from this Northwestern Professor⁸⁾What's going on at Northwestern? Yikes.

I'm not impressed with what he wrote, especially given the incentive structure; I'll allow you to evaluate it on your own.

My Opinion Regarding the Electoral College is Fairly Common; I Wish I Could Justify Why the Nevada Law Got Put Into Effect

As the last sentence of our loyalty pledge law makes clear ("Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9".), our legislators are at least aware that there is federal law governing the electoral college.

My favorite part of that sentence of our statute, is that if they would check back just one more section they would see that there already is federal law governing the electoral college 3 U.S.C. § 8:

"The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution."

You know what is literally not "the Constitution"? That's right, the Nevada legislature. Or any other state legislature for that matter.⁹⁾Please find me the constitutional provision that allows the states to invalidate electoral college votes.

It's from this same chapter in the federal code that we decide when the electoral college meets:

3 U.S. Code § 7 "The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct."

So what we have here is called a conflict of laws because the state of Nevada claims they can disqualify a elector based on her vote, and the federal law says "the constitution" (and nothing else) governs the electors.

Who wins? The federal law. By the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The laws of the United States are supreme to state laws. We're talking McCulloch v. Maryland type of certainty here.¹⁰⁾As in, there is consensus

We saw this not too long ago with the GMO labeling laws and Vermont. We discussed how, in response to Vermont's strict GMO-label law, the industry moved to get a federal law passed covering the same topic, making the federal law supreme to that hippie-Vermont GMO bill.¹¹⁾Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup

So am I saying that the entire loyalty pledge law in Nevada is unconstitutional? No. The federal congress granted authority to the states to address electoral vacancies:

Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. 3 U.S. Code § 4

So if there is a vacancy on Monday (one of the electors is absent), NRS 298 instructs us how the Secretary of State will fill the spot. The law they crafted, although weird seems fine with respect to vacancies.

So the power to resolve vacancies has been delegated to the states by this 1948 federal statute covering the electoral college. Why did it take until 2013 for Nevada electeds to take this option? What changed?

The answer is so incendiary I can't publish it in marketing material like this. There's a reason you can't find a written justification for this law anywhere.

What I will say though, is if this was about "the will of the people" not being met, isn't the obvious solution direct election of the president? (I would support such a measure).

100 years ago we weren't even directly electing our U.S. Senators; we've certainly made some progress.¹²⁾I'm listening President Obama; I swear. If the goal is to ensure that the people's will is effectuated through the vote, the best means to do this is not through obscure, likely unconstitutional, statutes. It's also highly inefficient.

Nevada's Loyalty Pledge Law Isn't Seen As Unconstitutional Just By Me

The (nonpartisan) Congressional Research Office exists to provide necessary background to our legislators before voting on complicated issues. From the limited material I've read, their work is excellent. I've never heard a cross word against them (Evan McMullin worked for them explaining foreign policy before he ran for president. Bright people like that work there. You will get to see the person who wrote the proceeding grafs momentarily.). In April (8 months ago) of this year, they published a clear explanation of what the electoral college is and how it got to this place for U.S. members of congress¹³⁾This is the office that your representatives rely on for data. It's hard to be more trusted. The man is obviously more conservative¹⁴⁾when I use this word I don't mean anything pejorative than me, yet we've reached the same conclusion:¹⁵⁾The law isn't supposed to be political

Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is considerable evidence that the founders intended that they would be independent, weighing the merits of competing presidential candidates, the electors have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the candidates of the party that nominated them. “Faithless” electors provide an occasional exception to that accepted rule.

...Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or for candidates other than those to whom they were pledged; they are known as “faithless” or “unfaithful” electors. Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number: since 1900, there have been eight, one each in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988 and 2004, and one blank ballot cast in 2000. They have never influenced the outcome of a presidential election, however, but their “faithless” votes, or failure to vote, were all duly recorded, and none of these faithless electors was prosecuted for this action. (Emphasis added).

I would like to think that any person with a basic understanding of federalism would conclude the same, but sophism seems to be all the rage.

The National Archives points out that the Supreme Court has "not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution."¹⁶⁾Source That's a fair point. This is undecided law.

Do you really think a federal court is going to enforce a state law that commands a federal official how to vote? Really?

The Secretaries of State throughout the country produced this nice handout where you can see how popular this idea has gotten. Doesn't make it anymore constitutional¹⁷⁾I think the word ends in -hameful.

Mess With the Electoral College at Your Own Risk

Now, if you were an elector and trouble-maker (We know that at least one of the electors is an ran Bernie's operation in Reno, making this a possibility) you might have some potential fun come Monday.

Let's say for example you do not like this loyalty pledge law and want it declared unconstitutional by a federal court. In law, there's a rule called standing which determines what potential plaintiffs are sufficiently connected to a matter enough to sue. It's used to stop too many people from suing when they should not.

It's possible that the only people in Nevada that would have standing to challenge the loyalty pledge law would be one of these electors. And they may only have an opportunity to do so every 4 years.

Only if the elector voted as s/he intended, but then was removed by the Secretary of State (as they are threatening to do in NRS 298.), would said elector have standing and a cause of action to bring a claim.

The Secretary of State's office needs to be prepared for this. Hopefully between now and then, they realize they should not enforce an unconstitutional law, and allow the electors to vote as they choose. (The Congressional Research Office says one of these laws have never been enforced..there must be reason.)

The New York Times recently used our Secretary of State as an example of an elected official using the office to lobby (They have Nevada Energy emails), and I can't be the only person living here waiting for an explanation. All eyes will be directed their way early next week.

The Secretary of State's work Monday is likely the most important they will likely ever do. Here's to hoping they realize that.

If you would like to learn more about the electoral college (or check my work), I invite you to spend a few minutes with Mr. Neale (the Congressional Research Office employee I quoted at length).

If you are unsure if it is proper for an elector to evaluate the candidate for president, just watch the first two minutes.

Thanks for reading.

Footnotes[+]

Footnotes
↑1	Sorry
↑2	and here i thought my "Opaque election rules and procedures" club would get off to a much faster start. I'll talk to the marketing guy..
↑3	This does function as marketing material as well, as I'm sure you are aware
↑4	What year is it?
↑5	If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer's book on the topic is excellent
↑6	This has always shocked me
↑7	Please have more shame going forward
↑8	What's going on at Northwestern? Yikes
↑9	Please find me the constitutional provision that allows the states to invalidate electoral college votes.
↑10	As in, there is consensus
↑11	Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup
↑12	I'm listening President Obama; I swear.
↑13	This is the office that your representatives rely on for data. It's hard to be more trusted.
↑14	when I use this word I don't mean anything pejorative
↑15	The law isn't supposed to be political
↑16	Source
↑17	I think the word ends in -hameful.

Nevada Law / General Interest / History / Las Vegas / News / Personal Injury / Politics - 12/14/2016

ClearCast Episode 10: Parentage & The Prince Estate's Tricky Probate Matters

[Editor's Note]

Welcome to today's ClearCast!

I don't know about you, but thought the world of Prince and so saddened to see him pass away last April.

You may not believe this, but the man worth between $100-300 million dollars didn't even have a will, let alone an estate plan.

As you guess with an intestate estate of this size, there have been complications. Namely: two women have come forward purporting to be Prince's niece and grandniece, asking for their share of the estate.

The hearing in Minnesota is scheduled for today. We get you all prepared. Plus, we will give you a sense of how this would work out in Nevada.

Thanks for watching.

-Brian

[End Note]

The Prince Estate: When Parentage and Probate Laws Mix

Transcript:

Jordan Flake: Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. Welcome to another ClearCast. I'm here with my partner, Jonathan Barlow. He's also a expert in the field of probate and trust disputes and litigation. Back in the news this week is Prince, the musician who died of an overdose last April. Maybe you were a big fan. Basically there's some really sticky probate issues that they're dealing with off in Minnesota. He was a resident of Minnesota. Essentially, what I understand from the situation is that Prince didn't have any surviving children or parents.

Jonathan Barlow: Not married also.

Jordan Flake: Not married, and he passed away without a will, which means intestacy laws apply. Which in that case what would happen is it just goes equally to Prince's brothers and sisters. However, if Prince has a predeceased brother or sister then that share would pass down to that brother or sister's children. Basically we have a situation where two women, one claiming to Prince's niece and another claiming to be Prince's grandniece have come along and said, "Hey, our dad, Dwayne, was Prince's brother. Dwayne passed away five years ago in 2011, and therefore we're entitled to Dwayne's share of the estate because he was Prince's brother." By the way, the estate is a pretty big estate. Rounding out possibly as high as, this is speculation, but possibly as high as 30 million dollars or even more. It's not a small amount of money that we're talking about here.

Jonathan Barlow: It's worth fighting about.

Jordan Flake: It's definitely worth fighting over. The niece and grandniece have come along and said, "Hey, listen. We're entitled to this because Dwayne was Prince's brother, and he's predeceased Prince, and this is the share." What are the complications here?

Jonathan Barlow: Well, it all sounds very reasonable.

Jordan Flake: It sounds great.

Jonathan Barlow: All things being equal the niece and grandniece would be exactly right. They would be entitled to that one share. The complication comes in because Prince's other siblings are saying that Dwayne, who you mentioned, the father of this niece and grandniece ... That Dwayne was not Prince's biological sibling, nor he was Prince's adopted sibling. Meaning, Prince's parents did not legally adopt Duane, and Duane was not their biological child.

Jordan Flake: Duane could've just been a guy.

Jonathan Barlow: Duane was just some guy.

Jordan Flake: Just some guy ...

Jonathan Barlow: Sorry, Duane.

Jordan Flake: ... who as young, little bundle of joy just showed up in Prince's family's household. Is that what happened?

Jonathan Barlow: Something like that. I wish we had known. Maybe Prince wrote a song about this. I don't know.

Jordan Flake: "Raspberry Beret", that's what it was referring to.

Jonathan Barlow: Dwayne's daughter and his then granddaughter, the niece and grandniece of Prince, are saying, "Hold on a minute aunts and uncles. We think you're aunts and uncles even though you don't think we're nieces of yours." They're saying, "Hey, wait a minute. Dwayne's and Prince's father brought Dwayne into his house," essentially that's what they're saying. Brought him into his house, treated him like his child, raised him as his child, always treated him as a child, and for all purposes he was never treated as if he wasn't. In fact, even Prince himself later in life and more recent years had acknowledged Dwayne as a half-brother or brother of some sort.

Jordan Flake: Prince's dad was saying, "Hey, these are my kids. This is Prince over here. He's really famous. This is my son, Dwayne. He's okay." I'm kind of the Dwayne of the family, by the way, in my own family, but anyway ...

Jonathan Barlow: We all have one of those.

Jordan Flake: We all have a Dwayne in our family. Basically Prince's dad was saying, "Yeah, Dwayne is my son." To what extent is that a legal hook?

Jonathan Barlow: It's interesting. Most states have adopted this law called the Uniform Parentage Act, and we have that here in Nevada, which gives us an interesting interplay in what's going on in Minnesota and Prince's estate right now. The Uniform Parentage Act basically says, in a very short way to say, just as Prince's father had done with Dwayne, if you bring a child into your house and treat that child as your child, even if you don't adopt them, even if it's not your biological child, and you hold them out to the whole world as your child, and for all purposes treat them as you child the law will say that person is that person's legal child for all purposes. Including for inheritance. Including for child support. Any purpose of establishing parentage it will establish that, so what's the niece and grandniece are saying is that parentage has already been established.

There was actually any interesting case in Nevada just last year in 2015 that dealt with the Uniform Parentage Act in a probate proceeding. Similar to this situation occurred a woman named Joyce was raised by her parents. Robert was her dad, but it sounds like it was never really clear whether Joyce was his biological child. On Joyce's birth certificate did list Robert as her father, but apparently it was not clear. When Robert died Joyce's, same thing, her aunts and uncles, came along and said, "No. Everyone knows Joyce is not Robert's biological child. Everyone knows that Robert did not adopt her, and so if we want Joyce wants to claim something she's got to have a DNA test." Essentially they wanted to exhume Robert and force a DNA test, which is horrible in itself to think that they would do something like that.

Anyway, the Nevada Supreme Court came along and said, "No, no, no. Sorry, under the Uniform Parentage Act," that law, the Uniform Parentage Act, "it says that if you're going to challenge somebody's paternity that is established in this way you have to do it within three years after that person turns 18 years old."

Jordan Flake: In application to the Prince case, they would've had to challenge Dwayne's being Prince's father's son, and also Prince's brother by the time he was 21?

Jonathan Barlow: Essentially. That's correct.

Jordan Flake: That would've been back in the '60s, or '70s, or whenever it was.

Jonathan Barlow: Sometime a long time ago, and so the law says-

Jordan Flake: Otherwise it's conclusively established?

Jonathan Barlow: It's done. In fact, those third parties, the aunts and uncles, the brothers and sisters, whoever it is they are legally prohibited, they're barred from contesting that paternity that has been established under the Uniform Parentage Act.

Jordan Flake: Is the niece and grandniece going to win in Minnesota then?

Jonathan Barlow: That's a good question. We never predict, right?

Jordan Flake: Right. Yeah, we don't.

Jonathan Barlow: Minnesota's going to do what Minnesota does, but interestingly the Nevada case, the Nevada Supreme Court case last year cited to a case that happened in Minnesota several years ago.

Jordan Flake: I'm sure there's not a lot of case law anywhere in the country on this type of topic.

Jonathan Barlow: Really unique interplay of parentage in probate. If they follow what the Nevada Supreme Court said they're going to have a very hard time disproving that this niece and grandniece are not entitled to inheritance.

Jordan Flake: Wow.

Jonathan Barlow: They're likely going to ... Without knowing Minnesota law really closely myself, if I was to guess they're going to receive a share Prince's estate.

Jordan Flake: I would love it if we could get ahold of one of the attorneys in this matter to come and smack us down, and tell us why we're wrong. We may be. If anybody out there knows. This is kind of interesting-

Jonathan Barlow: Which reminds me, I have a greeting card that I got from Prince a couple years ago. It said, "Hey, brother." I think I need to show up at hearing on Friday and see.

Jordan Flake: He probably has a song where he says, "You're all my brothers and sisters," or something like that.

Jonathan Barlow: He was talking about us.

Jordan Flake: He was talking about us, exactly. This is also interesting because if you're out there in the world right now and you suspect that your parents are holding out a non-biological sibling/child as an actual child then you have to get on top of that business before that individual turns 21.

Jonathan Barlow: It really sets up a really strange circumstance where essentially essential siblings that have been raised together-

Jordan Flake: "We're the real siblings."

Jonathan Barlow: That's right.

Jordan Flake: They get together and they say, "You're a fake sibling. We're going to get a court order," or what? How do they ...

Jonathan Barlow: That's theoretically what would happen. When that child turns 18 or 19 you can throw them into court to disprove that they have parents.

Jordan Flake: Do you see what a weird law this is? Because who is going to actually come along and challenge that unless there's a death in the interim.

Jonathan Barlow: Right, which is very rare.

Jordan Flake: Which would be very, very rare, so it's a very bizarre law, but this is why we enjoy being probate attorneys. We enjoy being estate planning attorneys. We love it when stories like Prince hit the national media because as always it highlights the need very good estate planning.

Prince was worth 30 million dollars, speculatively. He could've afforded an attorney to prepare a simple estate plan.

Jonathan Barlow: Even a simple will.

Jordan Flake: Even a simple will would've clarified.

Jonathan Barlow: A $99.00 will could've solved this whole thing. For all we know Prince would've wanted Dwayne's children to receive.

Jordan Flake: Right. Absolutely.

He may have wanted that. In any event, as we always do, we invite you to leave any thoughts, or comments, or additional information in the comments section, or on our Facebook, wherever we post this video.

Thank you so much for joining us.

ClearCast / News / Probate / Probate Videos - 10/21/2016

Watch This Before Adding a 'Pay on Death' Provision to Your Estate Plan

Transcript:

Hello, my name is Jonathan Barlow. I’m an estate planning and Las Vegas probate attorney here at Clear Counsel Law Group. Thank you for tuning for yet another riveting video about probate and estate planning tips and practices that you can use to help you in your life and probably actually your elderly parents who actually most need this advice.

Today we’re going to about what are called “pay on death designations” or “transfer on death designations,” sometimes called “beneficiary designations” also. You might typically think of these in the context of life insurance policies.

That’s what people most think about. If I have a life insurance policy, I get to name somebody. When I die the money goes to little Jimmy or little Sally or whoever you want it to go to.

You can do these same type of beneficiary designations on a host of other type of assets, and not just life insurance. For example, you could put they’re called “POD” or “TOD”, for short, you can put POD designations on your personal bank accounts.

You could put a POD designation on a vehicle title. You can put them on stock certificates. In fact in Nevada and some other states, not all states, but Nevada in particular, allows you to do a form of a deed called a “beneficiary deed” or “transfer on death deed” for your house.

What the effect of these are POD or TOD designations is, is that when you die the ownership of that asset transfers automatically simply by virtue of your death to the person you designated. Let’s think about the house.

Potential Problems with 'Pay on Death' Provisions with Real Property

If you’ve done a beneficiary deed for your house, and you say, “When I die,” basically in this deed, “When I die this house shall be transferred to Brian, Jim and John, my three sons, as joint owners. They essentially, after you pass away, they go down to the County Recorder, take your death certificate with a form of an affidavit and say, “Hey, dad’s died and now we own the house.”

That’s essentially in layman’s terms how that would work. That transfers the title automatically to them. They’re then the current owners. It’s quick, it’s easy and it gets those assets transferred really quickly.

Now, we want to contrast that to what happens if you don’t use these type of designations. Typically these type of assets would go through probate, which is something that we do here at Clear Counsel Law Group quite a bit. pay on death, nevada, las vegas, probate

Probate’s a core process that oversees the transfer of those assets to whomever they’re supposed to go to. Whether they go to your closest next of kin or whether you’ve done a will that says you want them to go somewhere. Probate can be expensive in the attorneys’ fees that are paid.

In Nevada, typically, and of course it depends a lot of factors, but attorneys’ fees are going to be somewhere between five to ten to fifteen thousand dollar or more to get that estate through probate. A lot of people are concerned about that cost and that’s why they look for these other vehicles to … or ways to transfer assets without incurring that cost after they pass away.

Again, it’s a quick and easy way to do it. However, I want also point out some important pitfalls and reasons why you might not want to do that. That’s really the main reason why we’re talking about these today.

Let’s think about this. Let’s think about, again, that house. You’ve got Brian, Jim and John, your three sons, and you want to make it easy for them to get your assets after you pas
s away. After you pass away, and if you make Brian, Jim and John the co-owners of the house, that is in almost every situation I’ve ever seen becomes a disaster scenario for those three sons.

Suppose Brian no longer wants to pay for his share of the house mortgage, or Jim says, “I’m not going to pay for the property taxes. I don’t got that kind of money to do that.” John says, “Well, I want to rent the house out and I want to get some rental income.” The other two are like, “Well, I don’t want to be landlords for some period of time.”

It’s a disaster waiting to happen because all three of them essentially have to agree on how they’re going to hold the property, how they’re going to use the property, who’s going to pay the expenses, when are we going to sell, how much are we going to sell for.

It’s a very, very difficult situation to put people in to be able to be on same page with that.

Potential Issues with 'Pay on Death' Provisions with Bank Accounts

Now, with financial accounts it’s not as big of a concern. If you have, again, let’s say your savings account has got fifty thousand dollars in it, and you go into the bank and you designate Brian, Jim and John as the pay on death beneficiaries of the savings account it is really easy for them because the bank is just going to cut three checks in equal amounts to the three of them.

We’re not going to have problems with co-ownership. Let’s think about a couple of things that could go wrong with that situation.

Let’s say John is actually sixteen years old when you pass away. He’s a minor child. The bank is not going to give him that money.

If you have a minor child, and even if it’s life insurance, if it’s a bank account, if it’s any asset those assets will not be transferred to that child unless somebody sets up a court appointed guardianship for that person.

You’re throwing them into a guardianship proceedings in order for that person to get access to the account or benefit from the account. Even if that happens, when John turns eighteen in a couple years he’s going to get all that money straight out, straight into his hands at eighteen years old.

There’s not very many eighteen year olds that can handle a substantial amount of money very well. That’s something you’d probably want to avoid.

Other problems that could come up; let’s Jim, he’s an adult, however Jim’s receiving government benefits. I had this situation just last week actually with somebody whose father has passed away.

We’re not into taking care of his estate, and one of the children was receiving a government benefit. If he receives a large inheritance, he’s going to lose that government benefit for a period of time, and becomes ineligible for that. It kicks him off of the government benefit because he’s received a large inheritance.

That would happen if a person is designated as the pay on death beneficiary of a bank account. They receive twenty thousand dollars, the Government’s going to want to know about that, and he’s probably going to lose a benefit that is conditioned upon his level of income and assets and things like that.

These are considerations you really have to think about. Sorry, one more consideration. Let’s say you designated Brian, Jim and John five years ago, and two years ago Brian died. Brian has children. You love those grandchildren very much, and you’d otherwise want to take care of them.

Guess what, when you pass away, and you have forgotten to go and update that, so when you pass away the only surviving beneficiaries are Jim and John. That bank account is going to go fifty percent to Jim, fifty percent to John, and zero percent to Brian’s kids who are your grandkids that you love.

They get nothing.

You effectively have disinherited that line of your family. Also, an unintended consequence that happens frequently with these pay on death beneficiary designations.

There are a lot of good things about these pay on death designations. They do make it easy to transfer the assets. They’re very inexpensive because there should be no need for an attorney to be involved at all. There’s going to be no court costs to transfer them.

However, there’s all kinds of pitfalls to using these in certain situations.

If you’re thinking about using a pay on death beneficiary designation on your bank account, on your car title, on your house deed, you’re still well worth talking to an estate attorney who can advise you about the benefits of using a trust, benefits of doing a will, benefits of doing the pay on death designations, which a good estate planning attorney will go through that and say, “Yeah, you know what, that will work for you the pay on death designation. That makes sense in this situation. Why don’t you go ahead and do that.”

They’re not always going to have to try to sell you on the trust or the will or anything like that if you get a good one.

Sit down with a good estate planning attorney, somebody that you trust to give you the best advice to go through your situation with all your kids or whoever you want to benefit.

Are they minors? Will they be able to handle co-ownership after you die? Are they receiving benefits that would be affected by this?

Those are all considerations that you should take into account when deciding whether to use a pay on death beneficiary designation.

I hope this has been helpful for you. If you have any more questions about pay on death designations certainly give us a call here at Clear Counsel Law Group.

We’d be very glad to answer your questions, to give you a free consultation about your estate planning situation, to give you the advice about what tools you should use or not use.

If you end up doing some planning with us then we’ll charge you for that, but the consultation is free.

Give us a call here at Clear Counsel Law Group.

Take care.

Probate Videos / Estate Planning / Probate - 09/29/2016