Protecting Your Business From Personal Legal Liabilities

from Brett Lee Shelton, licensed Family Business Lawyer™

Most small business owners are aware of the importance of protecting their personal assets from business liabilities.  However, the reverse is just as necessary – protecting your business assets from personal legal troubles.

For example, if you are at fault in a serious auto accident that injures someone and you own a business, the assets of that business could be under attack in a personal injury lawsuit unless you have undertaken the proper steps to insulate your business from personal liabilities.  Here are three things you can do to shelter your business today:

List all your assets.  Make a list of all of your personal assets – both business and personal – including any debt that is secured by the asset.  This list will be the beginning of your process helping you to evaluate your exposure to risk.

Look into Umbrella insurance coverage.  An umbrella insurance policy covers any claims against you in excess of your basic insurance coverage limits.  By having umbrella coverage, which is typically, not very expensive, you can ensure any judgments against you are paid before your business is put at risk to satisfy a judgment creditor.   Beware though, this type of insurance typically does not cover actions that are negligent, reckless, fraudulent or criminal.

Consider whether your business entity has extra built in protection. If your business has been set up as a limited liability company (LLC) in a state with charging order protection (and there are 13 states that have LLC Charging Order Protection), you may have extra protection for your business.  If you have an LLC formed in a state with this extra protection and a judgment creditor tries to take your business, they cannot. Instead, all they will receive is a charging order against the business.  This means that they would get distributions only when the other members do, but they would still need to pay taxes on undistributed profits AND they couldn’t even force any profits.  Many creditors would prefer to settle for pennies on the dollar rather than receive a charging order against a business entity.

Best Form of Protection. If asset protection is extremely important to you, consider irrevocable trust planning.  A properly set up irrevocable trust could protect your business from divorce, creditors or even bankruptcy.

If you’re a small or mid-size business owner, call us at 303-255-3588 today to schedule your comprehensive LIFT™ (legal, insurance, financial and tax) Foundation Audit and we’ll consider the best asset protection strategies for you and your business. Normally, this session is $1,250, when you mention this article and we still have room on our calendar this month, we will waive your session fee.

How to Avoid Family Conflict When Making an Estate Plan

from Brett Lee Shelton, licensed Family Business Lawyer™

Unfortunately, money has a habit of bringing out the worst in people, even in the best of families.  One of the most important reasons to get your Colorado estate plan handled is to keep your family out of conflict.  And, yet, without the right counsel, your estate plan could actually cause conflict!

Here’s what to do to make sure that’s not the case for your family:

Communicate Your Plans Ahead of Time. In our office, we recommend inviting adult children into the planning process and let them know ahead of time why you have made the decisions you have made.  This can be a difficult conversation and one we are extremely skilled at handling.  We don’t recommend doing it without the guidance of trusted counsel.

Do Not Put One Sibling In Charge of Another Sibling’s Inheritance. Unless agreed to ahead of time by both siblings, putting one sibling in charge of another will almost always lead to resentment and disagreement.  You can avoid this with strong communication and agreement ahead of time. Or you can appoint someone else to care for your child’s inheritance. We can help you think that through, so call if a child in your family will need inheritance protection.

Transfer Some Now Instead of All Later.  Consider how you can begin to transfer assets to your children during your lifetime when you can influence how they use those assets and you can pass on your values right along with them, instead of waiting until you are gone to pass on everything you’ve worked so hard for.

Make Changes When Necessary. Estate planning is an ongoing process, and when changes occur in your life – even if it’s the divorce of a child or a new grandchild – your plan needs to change as well.

Pass On More Than Just Your Money. Most estate plans focus only on your tangible assets, but your most valuable assets are your values, insights, stories and experience. We have a unique process in our office for passing on these assets that are most often lost when someone dies. And, honestly, they are what will keep your family focused on what really matters after you are gone.

Choose the right advisor.  Developing a strong working relationship with a Personal Family Lawyer® that will allow you the freedom to frankly discuss your family dynamics, plan accordingly and keep the family involved every step of the way.

If you would like to create or update your estate plan, call our office today to schedule a time for us to sit down and talk. We normally charge $750 for a Family Wealth Planning Session, but because this planning is so important, I’ve made space for the next two people who mention this article to have a complete planning session at no charge. Call 303-255-3588 today and mention this article.

Attorney Jennifer S. Baker’s Native News Network Article: Meaningful Consultation between American Indian Tribes and US Government

The standard for consultation with Indigenous Nations is described as “government to government,” and that standard must not be treated lightly. The duty to engage with tribes in this manner stems from treaties and the Constitution, and it has been expanded upon through court decisions and Executive Orders.
According to Executive Order 13175, federal agencies “shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.” This requires each agency to have an “accountable process to ensure meaningful and timely input by tribal officials” when engaging in tribal consultation.
Because consultation must be “meaningful,” there must be a reasonable number of parties involved so that each Indigenous Nation has a sufficient opportunity to express its unique views and concerns and the federal agency officials are able to focus specifically on the dialog with that Nation rather than jotting down a few notes and calling the next number in line.
The idea of a dialogue is key, consultations are not listening sessions, and they should not be treated as such.
The federal officials participating in a consultation must wield considerable influence and authority within the agency in order for the consultation to be meaningful, and should be delegated some degree of decision-making authority for purposes of the consultation.
The United States government does not send lower level staffers to participate in international government to government negotiations, and it should not do so in tribal government to government consultations either.
Indigenous Nations must be treated with the same degree of respect as other foreign nations. This also means that the logistics and agendas for consultations should not be established unilaterally. Times, locations, and agendas for these meeting should be mutually agreed upon.
In light of the fact that the federal agency is initiating the consultation as a result of its obligations, the fact that the proposed action is very likely something that could potentially have a negative effect on the consulting tribe, and the fact that the United States has considerably greater resources at its disposal than tribes do, it is reasonable for these consultations to be held within the consulting tribe’s territory and at a time convenient for the participating tribal officials.
Consultation can only be meaningful if the Nations involved have access to all relevant and necessary information. Tribal officials cannot be expected to make decisions that will affect their Nations when full impact of a proposed undertaking has not yet been determined.
Yet this is what the State Department is currently asking tribes to do. A significant portion of the lands at issue have not yet been surveyed, so the extent of potential damage to historic, cultural, and sacred sites is unknown.
Consultation about the effect on such sites is meaningless when such sites have not yet been identified.
State Department officials have acknowledged receiving numerous public comments that identified the failures in the tribal consultation process during its review of TransCanada’s first Presidential Permit application which was filed in 2008. Those comments should have been utilized by the agency to remedy its shortcomings during its current review of the pending Permit application, but when asked how its approach to consultation has changed since it received those comments, State Department officials could not provide an answer.
In a 2009 memorandum, President Obama declared that his Administration “is committed to regular and meaningful consultation and collaboration with tribal officials.” Form letters and brief long distance telephone calls are a far cry from the type of collaboration to which President Obama has committed his Administration. Likewise, mass meetings that require tribal officials to travel great distances upon short notice with federal bureaucrats who have no decision making authority cannot fulfill an agency’s consultation requirements.
The permit for the Keystone XL pipeline is still undergoing agency review. It is now up to the State Department to decide whether to stay its errant course, or whether it will stand behind President Obama’s commitment and fulfill its legal obligations to Indigenous Nations.

The standard for consultation with Indigenous Nations is described as “government to government,” and that standard must not be treated lightly. The duty to engage with tribes in this manner stems from treaties and the Constitution, and it has been expanded upon through court decisions and Executive Orders.

According to Executive Order 13175, federal agencies “shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.” This requires each agency to have an “accountable process to ensure meaningful and timely input by tribal officials” when engaging in tribal consultation.

Because consultation must be “meaningful,” there must be a reasonable number of parties involved so that each Indigenous Nation has a sufficient opportunity to express its unique views and concerns and the federal agency officials are able to focus specifically on the dialog with that Nation rather than jotting down a few notes and calling the next number in line.

The idea of a dialogue is key, consultations are not listening sessions, and they should not be treated as such.

The federal officials participating in a consultation must wield considerable influence and authority within the agency in order for the consultation to be meaningful, and should be delegated some degree of decision-making authority for purposes of the consultation.

The United States government does not send lower level staffers to participate in international government to government negotiations, and it should not do so in tribal government to government consultations either.

Indigenous Nations must be treated with the same degree of respect as other foreign nations. This also means that the logistics and agendas for consultations should not be established unilaterally. Times, locations, and agendas for these meeting should be mutually agreed upon.

In light of the fact that the federal agency is initiating the consultation as a result of its obligations, the fact that the proposed action is very likely something that could potentially have a negative effect on the consulting tribe, and the fact that the United States has considerably greater resources at its disposal than tribes do, it is reasonable for these consultations to be held within the consulting tribe’s territory and at a time convenient for the participating tribal officials.

Consultation can only be meaningful if the Nations involved have access to all relevant and necessary information. Tribal officials cannot be expected to make decisions that will affect their Nations when full impact of a proposed undertaking has not yet been determined.

Yet this is what the State Department is currently asking tribes to do. A significant portion of the lands at issue have not yet been surveyed, so the extent of potential damage to historic, cultural, and sacred sites is unknown.

Consultation about the effect on such sites is meaningless when such sites have not yet been identified.

State Department officials have acknowledged receiving numerous public comments that identified the failures in the tribal consultation process during its review of TransCanada’s first Presidential Permit application which was filed in 2008. Those comments should have been utilized by the agency to remedy its shortcomings during its current review of the pending Permit application, but when asked how its approach to consultation has changed since it received those comments, State Department officials could not provide an answer.

In a 2009 memorandum, President Obama declared that his Administration “is committed to regular and meaningful consultation and collaboration with tribal officials.” Form letters and brief long distance telephone calls are a far cry from the type of collaboration to which President Obama has committed his Administration. Likewise, mass meetings that require tribal officials to travel great distances upon short notice with federal bureaucrats who have no decision making authority cannot fulfill an agency’s consultation requirements.

The permit for the Keystone XL pipeline is still undergoing agency review. It is now up to the State Department to decide whether to stay its errant course, or whether it will stand behind President Obama’s commitment and fulfill its legal obligations to Indigenous Nations.

3 Legal Tools to Help You Protect Your Business Idea

from Brett Lee Shelton, licensed Family Business Lawyer™

Your ideas aren’t worth anything if you don’t get them out there into the world. I come across a lot of entrepreneurs who are afraid that if they talk about their idea, it’ll get stolen and so they keep it under wraps and don’t capitalize on it.

Here are three legal tools you can use to protect your ideas – with the oversight of a Creative Business Lawyer™:

Non-disclosure agreement. If you need to share your vision with another collaborator – for example, a manufacturer or distributor or vendor – request that they sign a non-disclosure agreement to protect confidentiality.  Our LIFT Foundation System includes a template Non-Disclosure Agreement or we can draft a custom agreement for your business.

Non-compete agreement. If you need to hire support to bring your idea to market (and you do), make sure that all employees and independent contractors sign a non-compete agreement to prevent them from leaving your company and taking your idea with them.

Work-for-hire agreement. Anyone you may hire to help you refine or improve on your product or service creatively, such as with web development, design or copywriting needs to sign a work-for-hire agreement that clearly states you retain complete ownership rights to all improvements or revisions made to the product or service. This ensures you retain your rights as the inventor or developer of the product or service.

Here’s the truth of the matter: you must get your ideas out into the world for them to come to fruition. If you don’t, someone else will.  So take the actions now to give you the comfort you need to broadcast loudly what you are doing.  We are here to help.

If you’re a small or mid-size business owner and would love us to help you with these agreements and make sure that all of your intellectual property is poised for growth, call us today at (303) 255-3588 to schedule your comprehensive LIFT™ (legal, insurance, financial and tax) Foundation Audit.  Normally, this session is $1,250, but if you mention this article and we still have room on our calendar this month, we will waive that fee.

6 Cases When a Trust is Better Than a Will in Colorado

from Brett Lee Shelton, licensed Family Business Lawyer™

A will is one of the most basic Colorado estate planning documents, and everyone should have one to make sure that there is no question about what would happen to your assets and kids if something happens to you.  But there are some cases when having a trust in addition to a will is imperative; here are six of them:

Avoiding probate or conservatorship. A trust will bypass the probate process, saving the people you love time and money.  To carry out instructions in a will, a probate must be opened in the county court and that means your family is stuck dealing with the Court if you get hospitalized or after you die.

Providing for a person with special needs. If you have a child or another dependent with special needs, a trust commonly known as a Special Needs Trust can protect assets for a special needs person without jeopardizing their qualification for government benefits.  A will allows you to transfer assets to a special needs person, but will not protect those assets.

Privacy.  Since a will undergoes probate in Colorado, it becomes public record.  A trust is private.

Blended families. If you are part of a blended family, a trust can give you the flexibility you will want to make sure that children from prior marriages are provided for in the way you want.

Out-of-state property. If you own property in another state besides Colorado, you can more easily transfer ownership via a trust than a will.  Transferring out-of-state property in a will usually means additional legal expenses because you could have probate in multiple states and that is no fund for the people you love.

Asset protection. If you want to protect the assets you leave your loved ones from creditors (including bankruptcy and divorce) a trust is the way to do it. It’s a gift you can give your loved ones that they could not easily (or at all) give themselves.

If you would like to learn more about the use of trusts in Colorado to pass on what you care about to the people you love, call our office today to schedule a time for us to sit down and talk. We normally charge $750 for a Family Wealth Planning Session, but because this planning is so important, I’ve made space for the next two people who mention this article to have a complete planning session at no charge. Call (303) 255-3588 today and mention this article.

Immigration Bill May Have Big Impact on Small Business

From Brett Lee Shelton, licensed Family Business Lawyer™

The immigration bill introduced by the “Gang of Eight” – a bipartisan collective of U.S. senators – contains recommendations on a number of measures, including the beefing up of border security and visa reform.

The proposed legislation also contains some new policies that could have a big impact on small businesses, especially startups.  Here’s why:

Increases the number of H1-B visas for highly skilled workers – the bill proposes to almost double the number of annual H1-B visas, from the current level of 65,000 to 110,000 a year.  This helps companies whose business model is heavily tech-oriented.

Merit-based immigrant visas–recommends that a merit-based point system be enacted for immigrant visas with points awarded for level of education, employment demand and English language skills, among other factors.

Expansion of E-Verify system – expands the current E-Verify system and requires employers to use the system to add new employee information into the national database.

Creation of W visa program for low-skill workers – creates a new class of visa to allow businesses to keep lower skilled workers who don’t qualify for a HB-1 or other visas.

Foreign-born entrepreneur visas – creates a new program called the INVEST nonimmigrant visa that allows up to 10,000 qualified business founders and investors to remain in the U.S., with strict rules for qualification.

If you’re a small or mid-size business owner, call us today at (303) 255-3588 to schedule your comprehensive LIFT™ (legal, insurance, financial and tax) Foundation Audit.  Normally, this session is $1,250, but if you mention this article and we still have room on our calendar this month, we will waive that fee.

Best Mother’s Day Gift Ever? The Kids Protection Planning Kit®

From Brett Lee Shelton, licensed Family Business Lawyer™

By now, the flood of floral commercials has already reminded us that Mother’s Day is Sunday, May 12.  But before you plunk down a good chunk of change on something that will wilt and die in a week or so, consider a gift that is truly priceless: a plan for your kids (or grandkids) that provides Mom with peace of mind that, if anything should happen to mom and dad, her children will always be in the care of the people she knows, loves and trusts.

We all hate to think that something could happen to us, but we know it happens to others like us every day.

We’ve all seen the news stories of moms and dads who leave their children with a babysitter, get into a terrible accident and don’t make it home.

The babysitter calls and calls, but there is no one to answer. The police are summoned and the children have to be placed with Child Protective Services. It’s the thing every mother is most afraid of happening.

We’ve seen the stories of children placed in the care of people they barely know just because they are related by blood since there was no plan in place that dictated who would take on this incredible responsibility.

And we have seen the fall out of family fights created when mom and dad didn’t make a plan and the family couldn’t agree on what would happen.  Or in the worst case, what happens when there is no family available.

In all cases, it’s left up to a Judge decide when mom and dad don’t.

We know you don’t want this for your children (or grandchildren, nieces or nephews).  And this is where a Kids Protection Plan® can ensure it never does. Not for your kids.

Developed by a nationally recognized attorney who is a mom herself, the Kids Protection Plan® provides Moms (and Dads) with the legal planning tools you need to make sure there is never a question about who will take care of your kids if you are in an accident.  The plan includes:

  • Legal documents to name short-term guardians who can be there immediately for your children so they’ll never be taken into the arms of strangers or anyone you wouldn’t want. Not even for a moment.
  • Letters to the people you name as short-term guardians so the people you’ve named will know just what to do if called upon.
  • Instructions to everyone who takes care of your kids as to exactly what to do if you are in an accident … so there’s never any question about who to call.
  • Legal documents to name long-term guardians who will raise your children just as you would so there is no family feuding over your children.
  • Letters to your long-term guardians letting them know what to do if called upon.
  • Instructions and guidelines for your long-term guardians on how you want your kids to be raised…make sure your kids are raised with your values, insights, stories and experience.
  • Medical powers of attorney for your minor children so the next time they travel without you or you travel without them, you know they’ll get the medical care they need.
  • A custom, personalized I.D. card for your wallet stating that you have minor children at home and who should be contacted if you are in an accident.

As a Personal Family Lawyer®, I am one of the few lawyers in the world licensed to prepare a Kids Protection Plan® for your family and if you do not have one in place already for your children (or know a mom who doesn’t), this Mother’s Day is the perfect time to gift this plan to your family.

We include a Kids Protection Plan® with all the planning we do for the lucky families with children at home who plan with our office.  This month, in honor of Mother’s Day, we are not only waiving our standard Family Wealth Planning Session fee for the first 5 families to make appointments this month, but we’ll also name legal guardians for your children during the session, whether you create a comprehensive Kids Protection Plan® with us or not. Call us at (303) 255-3588 to schedule your appointment!

PS – The nationally-recognized attorney who created the Kids Protection Plan® is appearing on the Don’t Sweat the Small Stuff for Mom’s Summit, you may enjoy listening in. Here’s the link: www.personalfamilylawyer.com/momsconf