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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.

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.

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.

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.

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

from Brett Lee Shelton, licensed Family Business Lawyer™

A new piece of federal legislation known as the Marketplace Fairness Act has passed the Senate and is now awaiting a House vote that most politicos expect to pass as well.  If the bill becomes law, and your business conducts business over the Internet, you will be expected to collect taxes on all purchases and pay the state accordingly.

Currently, businesses that sell online, by phone or by mail already collect state tax from buyers who live in their own states or in states where the business has a presence.  If the proposed legislation passes, all businesses that sell over the Internet would be required to collect sales tax for each buyer’s state and local governments.

Sound like a logistical nightmare for online sellers?  Each state government will be required to provide free software to businesses to calculate state and local taxes.  Businesses with out-of-state sales below $1 million annually would be exempt from collecting and reporting.

While opponents of the bill predict a bookkeeping and compliance nightmare (an estimated 9,000 separate sales tax entities would need to be accounted for, according to the New York Times), proponents of the legislation said it would level the playing field for brick-and-mortar retailers that must already collect sales tax and that often lose sales to online retailers because consumers don’t have to pay taxes.

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.

from Brett Lee Shelton, licensed Family Business Lawyer™

Retirement decision-making for boomers is very different than it was for our parents, when it was usually just one spouse (Dad) who retired, with Mom sometimes reminding him that, “I married you for better or worse, but not for lunch!”

Now both working spouses must make a decision together on their retirement, and each may have very different ideas of what that retirement will look like.  Here are 5 key decisions you need to make as a couple before you retire:

Timing.  Financial needs and whether or not you enjoy your work are usually the main determining factors in when to retire.  Couples also need to consider how they can maximize Social Security benefits.

Finances.  If one spouse has been handling the family finances, it’s time for both to understand their financial situation and how retirement may impact it.

Lifestyle.  One spouse may want to travel more in retirement, while another just wants to putter around the house.  One may want to move, while the other wants to stay put.  You need to reach a decision together on your retirement lifestyle.

Healthcare.  Both spouses need to have good healthcare coverage, either from Medicare and supplemental plans or, if you will continue to work in retirement, from an employer’s plan.

Long-term care.  Studies show that most of us will need some long-term care during our lifetimes.  Your Personal Family Lawyer® can help you examine the options for long-term care coverage and put a plan together that suits your needs.

If you would like to learn more about retirement planning, call our office today at (303)255-3588 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 today and mention this article.

On April 11, Google introduced its Inactive Account Manager, which allows users to make a choice to either delete their data after a pre-determined length of account inactivity or to name heirs for the data from some of its most popular services, including +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube.

Many small business owners routinely use Google’s free tools in the daily operation of their business.   The disposition of these digital assets is an important conversation you need to have with your Creative Business Lawyer™, as part of your business succession and estate planning process.

Google users can now access the new Inactive Account Manager on their Google Account settings page.   But what about other major Internet companies that hold most of your online data?  Here is a guide to their current policies:

Facebook – Facebook will remove the account of a deceased person at the family’s request, or even “memorialize” the account (which allows friends and family members to post memorials on that person’s page).  Facebook will not disclose any passwords, transfer account ownership or turn over the contents of the account.

Twitter – Will only disclose account data with a court order; will not disclose account passwords or contents.  Account will be deactivated if family member provides Twitter with a death certificate and notarized statement.

LinkedIn — Will not disclose any passwords, transfer account ownership or turn over the contents of the account unless ordered to do so by a court.  Family members can request that an account be deleted.  Executors and others beyond family members (like an employer) can have the account hidden from public view by reporting the death to LinkedIn if they know the email address that is linked to the account.

Yahoo – Honors requests from family members to access the account of a deceased person only if that request is included in the decedent’s estate plan.  Will also deactivate an account if a death certificate is provided.

Microsoft – For Outlook and Hotmail users, Microsoft will not disclose passwords or transfer account ownership unless a family member has a court order or the permission of the account owner to access the account.  Will deactivate the account if requested to do so by a family member.

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 during which we can look at the disposition of your digital assets if something happens to you.  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.

The digital afterlife debate over who owns the online assets of someone who has died has been in the news recently, brought to light by several families whose children have died tragically and who want access to their child’s online accounts to preserve memories and try, in the case of suicide, to make sense of a senseless act.

To date, six states — Connecticut, Idaho, Indiana, Oklahoma, Rhode Island and Virginia — have passed legislation regarding the ownership of digital assets, with legislation pending in a number of other states and at the federal level as well.

At the heart of the debate are concerns over violating privacy laws.  Facebook went to court in California last September to block the estate of a British model from getting access to her Facebook account and prevailed.

On April 11, Google introduced its Inactive Account Manager, which allows users to make a choice to either delete their data after a pre-determined length of account inactivity or to name heirs for the data from some of its most popular services, including +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube.

Google users can access the new Inactive Account Manager on their Google Account settings page.   But what about other major Internet companies that hold most of our online data?  Here is a guide to their current policies:

Facebook – Facebook will remove the account of a deceased person at the family’s request, or even “memorialize” the account (which allows friends and family members to post memorials on that person’s page).  Facebook will not disclose any passwords, transfer account ownership or turn over the contents of the account.

Twitter – Will only disclose account data with a court order; will not disclose account passwords or contents.  Account will be deactivated if family member provides Twitter with a death certificate and notarized statement.

LinkedIn — Will not disclose any passwords, transfer account ownership or turn over the contents of the account unless ordered to do so by a court.  Family members can request that an account be deleted.  Executors and others beyond family members (like an employer) can have the account hidden from public view by reporting the death to LinkedIn if they know the email address that is linked to the account.

Yahoo – Honors requests from family members to access the account of a deceased person only if that request is included in the decedent’s estate plan.  Will also deactivate an account if a death certificate is provided.

Microsoft – For Outlook and Hotmail users, Microsoft will not disclose passwords or transfer account ownership unless a family member has a court order or the permission of the account owner to access the account.  Will deactivate the account if requested to do so by a family member.

Estate planning for digital assets is evolving, with laws and practices changing all the time.  As a Personal Family Lawyer®, I can help you protect your digital assets and pass them along to heirs in the way you wish to do so.

If you would like to learn more about estate planning strategies for all your assets, not just the digitals, 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 today at (303) 255-3588 and mention this article.

Is That a Real Employee or a Common-Law Employee?

from Brett Lee Shelton, licensed Family Business Lawyer™

The IRS and the Department of Labor are cracking down on businesses that use contractors but treat them like real employees – or, as the IRS calls them, “common-law employees.”  Before you misclassify that contractor, ask yourself these 5 questions:

1.  Do you control the work? If you direct how and where and at what time someone works for you, then the government says you have an employee, not a contractor.

2.  Do you furnish the equipment? If you have given someone a computer or other equipment on which they will perform work for you, they are likely to be classified as your employee.

3.  Are you in one of these industries? Some industries are audited at a higher rate than others when it comes to employee misclassification, including nail salons, restaurants, cleaning services, security guards, landscaping companies, property management and drywall.  If you are in one of these businesses, you need to educate yourself on employment law with the help of a Creative Business Lawyer™.

4.  Is there anything in writing? Most contractors operate with a contract that spells out the work they will provide and the compensation they will get for it.  We can help you prepare a contract to ensure your contractors are not deemed common law employees.

5.  Do they just work for you? Most contractors are free to work for other people, not just you.  Even if they don’t actually have other clients, it should be clear that they are free to pursue other work without your permission.

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.