Nevada Revised Statutes 163.605 – Incapacity of trustee: Removal; determination of incapacity; certification; restoration; burden of proof
1. A person determined pursuant to this section to lack capacity or to be incapacitated shall be deemed to no longer have the authority to serve as a trustee, and the person having priority to serve as or to appoint the successor trustee upon resignation, death or incapacity of the trustee under the trust instrument shall immediately assume such authority.
Terms Used In Nevada Revised Statutes 163.605
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- person: means a natural person, any form of business or social organization and any other nongovernmental legal entity including, but not limited to, a corporation, partnership, association, trust or unincorporated organization. See Nevada Revised Statutes 0.039
- physician: means a person who engages in the practice of medicine, including osteopathy and homeopathy. See Nevada Revised Statutes 0.040
- Trustee: A person or institution holding and administering property in trust.
2. A person who would have authority to serve as the trustee but for the fact that he or she has been determined to be incapacitated pursuant to subsection 3 and who later regains capacity as determined in accordance with subsection 7 is immediately restored to such authority.
3. A person serving as a trustee is incapacitated for purposes of this section if the person:
(a) Is determined to lack capacity pursuant to subsection 4; or
(b) Is:
(1) Missing; or
(2) Detained, including, without limitation, incarcerated.
4. The incapacity of a person serving as a trustee may be established by:
(a) A method provided in the trust instrument of the person, including, without limitation, a method that does not require a physician or a court to determine incapacity;
(b) A licensed physician who has personally examined the person, unless the trust instrument provides otherwise; or
(c) A court of competent jurisdiction.
5. The successor trustee may certify under penalty of perjury that the incapacity of a person has been determined pursuant to this section by a signed affidavit that is acknowledged by all the currently acting trustees of the trust other than the incapacitated trustee. A person who acts in reliance upon such a certification of incapacity without knowledge that the representations contained therein are incorrect is not liable to any person for so acting and may assume without inquiry that the person who has been certified as incapacitated lacks capacity.
6. Any interested person may petition a court of competent jurisdiction pursuant to NRS 164.015 for an order declaring a person serving as a trustee to lack capacity within the meaning of this section and for the removal as a trustee.
7. A person who would have priority to serve as the trustee but for the fact that he or she has been determined to be incapacitated, who later regains capacity, may establish his or her capacity by:
(a) Using a method in the trust instrument to establish the capacity of the trustee;
(b) If the person is incapacitated pursuant to paragraph (b) of subsection 3, a signed affidavit acknowledged by the person that the individual is no longer incapacitated and that is delivered to the currently acting trustees of the trust; or
(c) Petitioning a court of competent jurisdiction under NRS 164.015 for an order declaring that the person is not incapacitated.
8. A written determination of the successor trustee or licensed physician provided pursuant to paragraph (a) or (b) of subsection 4 must be provided under penalty of perjury.
9. Incapacity pursuant to paragraph (c) of subsection 4 must be established by a preponderance of the evidence.