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Many of the complaints that I hear from litigators about arbitration could be resolved if the arbitration clause which forced the parties into litigation were written better. Arbitrations are, of course, a creature of contract. Therefore, the parties’ arbitration agreement is often the beginning and end of the arbitrator’s authority. The arbitrator is bound to give effect to the contractual rights and expectations of the parties “in accordance with the terms of the agreement.” In fact, although the Federal Arbitration Act presumes that arbitration awards will be confirmed except upon a few narrow circumstances, the arbitrator who acts beyond the scope of the authority found in the parties’ arbitration clause risks having the award vacated. So, if you want the arbitrator to behave differently, write a better arbitration agreement. (more…)
A Living Will is different from a Living Trust and is different from a Will. A Living Will is a written statement instructing your family and doctor about what, if any, life-prolonging medical procedures you desire to be performed if your condition is terminal and there is no chance of recovery. In Nevada, it is known as a “Declaration” and allows you to declare your end of life care decisions.
You Have the Right to Refuse Medical Treatment
You have the right to refuse medical treatment. A Living Will gives you the opportunity to express your wishes in advance, since you may not be able to make those desires known when it becomes necessary to do so. Life prolonging procedures include assistance with breathing when you cannot breathe on your own, performing operations or prescribing antibiotics that cannot realistically increase your chance of recovery, starting your heart mechanically when it has stopped beating, or feeding you through a tube, etc.
In Nevada, a physician must follow the terms of your Living Will (Declaration) when:
You have an incurable and irreversible condition that, without the administration of life-sustaining treatment, will result in death within a relatively short time; and
You are not able to communicate your desires, such as if you are in a coma.
A Living Will can be very specific or very general. An example of a statement sometimes found in a Living Will is: “If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.”
In Nevada, a “Durable Power of Attorney for Health Care” is a signed, dated, and witnessed written instruction naming another person as your “agent” or “health care proxy” to make medical decisions for you if you should become unable to make them for yourself. The instrument may include instructions regarding any treatment you would desire or those you wish to avoid, such as surgery or artificial feeding. The Durable Power of Attorney for Health Care will be in effect whenever you are unable to make decisions and, unlike the Living Will, is not limited to situations where you are terminal or have an incurable condition. The agent’s authority begins only when a physician determines that you have lost the capacity to decide about treatment.
So, you did a will, trust, or even a full estate plan. Great! Is it fully funded? Do you understand what that means? Have your financial circumstances changed such that your assets are different today than they were five years ago when you did your will? If you have not also changed your will (or trust) to adjust for these changes, your family could pay the price.
The Three to Five Year Rule
We recommend that you have your estate plan (will, trust, living will, power of attorney, etc.) reviewed every three to five years. Unless you are more diligent than most of us, you are probably leaving things out of your estate plan if you do not have your plan reviewed regularly. (more…)
In Nevada, the elements for a claim of breach of fiduciary duty are:
- A fiduciary relationship exists between two persons such that one of them is under a duty to act for or give advice for the benefit of another upon matters within the scope of that relationship;
- Failure of the party owing the duty to use due care or diligence, act with utmost faith, exercise ordinary skill, or act with reasonable intelligence;
- Plaintiff suffered losses or injuries resulting from defendants’ breach of duty; and
- Causation and damages.
NRS 78.138-39; Klein v. Freedom Strategic Partners, LLC, 595 F. Supp. 2d 1152, 1162 (D. Nev. 2009) Stalk v. Mushkin, 125 Nev. 21, 199 P.3d 838 (Nev. 2009); Shoen v. SAC Holding Corp., 122 Nev. 621, 137 P.3d 1171 (Nev. 2006); Foley v. Morse & Mowbray, 109 Nev. 16 (1993); Hoopes v. Hammargren, 725 P. 2d 238 (Nev. 1986); Linland v. United Business Inv., Inc., 693 P.2d 20 (Ore. 1984); 18 Am.Jur 2d Corporations 1695, 1710, 1712-13; Restatement (Second) of Torts § 874 Cmt. a (1979).
See elements for other claims at the Nevada Law Library
I tried for 15 years to get my friend to do some basic Estate Planning. I urged him, at a bare minimum, to create a will. Better, do a full estate planning package: will, living trust, etc. He assured me he didn’t need my help, and that he had everything “under control” without spending money on an attorney to do a Will and a Trust. My friend died and I had to help his widow through the financial mess he left behind. So far, his mistake has cost his widow over $100,000—and it was completely avoidable.
My friend was an extremely intelligent man and very capable in many ways. But he did not have things “under control”. Now, his widow will have to spend thousands of dollars in attorney fees, put his estate through probate, and lose almost 1/3 of the assets they worked so hard to accumulate. His widow is learning through my friend’s mistakes that if you do not have an estate plan, the State will determine who gets your assets, not you.
This article gives an overview of the ways one may transfer assets upon his or her death, discussing the risks and rewards of each method in Nevada. We will also discuss the estate planning tools that are available to you to avoid the risks associated with each transfer method. (more…)
It is probably not what you are thinking. Having recently experienced the stress of having to locate and make sense of the assets of two family members who died, I can tell you that having all of your vital information in one spot would be a great gift of love to your family.
A friend, Will Scarlett, introduced me to the Family Love Letter recently and I think it is a great resource. The Family Love Letter guides you through the important information you need to leave for your loved ones. Will says:
“It provides a single place to record all of the legal, financial and personal information needed when a loved one’s life ends. By putting all these essentials in one place, you’ll be getting your house in order for those you love.”
Well said, Will. Order your Family Love Letter today from Will
What are the Advantages of Having a Trust?
The type of Trusts we are discussing here is not designed to secret your millions away in an account in the Grand Caymans to protect it from your creditors. We are talking about a Living Trust, which is an agreement under which you (acting as trustee) hold legal title to real or personal property for the benefit of another (beneficiary). In my opinion, every person who is over 18 years old and either has dependents or has real property should consider having an estate plan, including a Trust. (more…)