New penalties for elder abusers
The Protected Person’s Bill of Rights
As adopted by the Nevada Legislature
SB 360 of the 79th Legislative Session
Effective October 1, 2017
The Legislature hereby declares that, except as otherwise specifically provided by law, each proposed ward has the right to have an attorney before a guardianship is imposed to ask the court for relief, and each ward has the right to:
(a) Have an attorney at any time during a guardianship to ask the court for relief.
(b) Receive notice of all guardianship proceedings and all proceedings relating to a determination of capacity unless the court determines that the ward lacks the capacity to comprehend such notice.
(c) Receive a copy of all documents filed in a guardianship proceeding.
(d) Have a family member, an interested party, a person of natural affection, an advocate for the ward or a medical provider speak or raise any issues of concern on behalf of the ward during a court hearing, either orally or in writing, including, without limitation, issues relating to a conflict with a guardian. As used in this paragraph, “person of natural affection” means a person who is not a family member of a ward but who shares a relationship with the ward that is similar to the relationship between family members.
(e) Be educated about guardianships and ask questions and express concerns and complaints about a guardian and the actions of a guardian, either orally or in writing.
(f) Participate in developing a plan for his or her care, including, without limitation, managing his or her assets and personal property and determining his or her residence and the manner in which he or she will receive services.
(g) Have due consideration given to his or her current and previously stated personal desires, preferences for health care and medical treatment and religious and moral beliefs.
(h) Remain as independent as possible, including, without limitation, to have his or her preference honored regarding his or her residence and standard of living, either as expressed or demonstrated before a determination was made relating to capacity or as currently expressed, if the preference is reasonable under the circumstances.
(i) Be granted the greatest degree of freedom possible, consistent with the reasons for a guardianship, and exercise control of all aspects of his or her life that are not delegated to a guardian specifically by a court order.
(j) Engage in any activity that the court has not expressly reserved for a guardian, including, without limitation, voting, marrying or entering into a domestic partnership, traveling, working and having a driver’s license.
(k) Be treated with respect and dignity.
(l) Be treated fairly by his or her guardian.
(m) Maintain privacy and confidentiality in personal matters.
(n) Receive telephone calls and personal mail and have visitors, unless his or her guardian and the court determine that particular correspondence or a particular visitor will cause harm to the ward.
(o) Receive timely, effective and appropriate health care and medical treatment that does not violate his or her rights.
(p) Have all services provided by a guardian at a reasonable rate of compensation and have a court review any requests for payment to avoid excessive or unnecessary fees or duplicative billing.
(q) Receive prudent financial management of his or her property and regular detailed reports of financial accounting, including, without limitation, reports on any investments or trusts that are held for his or her benefit and any expenditures or fees charged to his or her estate.
(r) Receive and control his or her salary, maintain a bank account and manage his or her personal money.
(s) Ask the court to:
(1) Review the management activity of a guardian if a dispute cannot be resolved.
(2) Continually review the need for a guardianship or modify or terminate a guardianship.
(3) Replace the guardian.
(4) Enter an order restoring his or her capacity at the earliest possible time.
Nevada’s guardianship system has been overhauled in the last 18 months in response to a series of investigative reports, focusing on bad acting guardians who exploited persons under guardianship for a period of years. These news reports have even been published in the New Yorker (see “How the Elderly Lose Their Rights” published on Oct. 9), but the Nevada press has been reporting on these abuses since 2015. As a result, the Nevada Supreme Court, Nevada Legislature, and Nevada Attorney General have been systematically refining and enforcing statutes, regulations, and Court rules to hold guardians accountable and protect the rights of disabled and vulnerable adults.
Nine separate bills were passed during the Nevada Legislative session last spring. Most of them went into effect earlier this month (Oct. 1), or will on Jan. 1, 2018. These new statutes are quite massive. I printed them all off to read them and ended up with a 4-inch thick binder. The courts have been working diligently to enact these changes in the Guardianship Court but the law goes beyond guardianships. The new laws affect criminal laws and penalties, substantive rights and medical decision making.
One of the most important changes is the creation of a Bill of Rights for any adult under guardianship. This law went into effect earlier this month. It ensures that every person facing guardianship is to be provided copies of the Court paperwork, has an absolute right to come and meet the judge in Court, and has an absolute right to their own independent attorney. If you cannot afford an attorney, the local rural courts have partnered with Washoe Legal Services in Reno to ensure that you have free counsel. After all, if a defendant has a right to counsel, why doesn’t a law abiding citizen who is facing the very real risk of losing the ability to manage their own financial and medical decisions?
As part of these changes, the Legislature also has enhanced the criminal penalties for certain crimes against older or vulnerable persons. These categories of crimes do not apply only to the elderly; they would apply to any vulnerable or disabled adult. Isolation, abuse, neglect, or abandonment of an older or vulnerable person have long been crimes, but the Legislature has increased the category of crime. Such crimes can now be treated as gross misdemeanors or Category C felonies for first offenses and Category B felonies for second or subsequent offenses. This is an increase in penalties, as the maximum sentence was 364 days in jail and a $2,000 fine and now is up to 6 years in prison.
Likewise, the penalties for financial exploitation have been enhanced. If the amount stolen or exploited is $650 or less, then the crime is a category C felony or a gross misdemeanor. But if the amount is more than $650, the crime is a category B felony. Since most disability checks from the Social Security Administration are $731 or more, even one instance of cashing out a disabled adult’s social security disability check and using it for your own gain is a felony. If the criminal stole $650 to $5,000, they would face a minimum prison term of 2 years (maximum of 10 years) and a fine of up to $10,000. If the criminal stole more than $5,000, or if this is a second or subsequent offense, the penalty is 2 to 20 years in prison, and a fine of up to $25,000. Additionally, the criminal must be ordered to pay restitution for the monetary value of all the money, assets or property which the criminal wrongfully obtained or used.
These are serious matters, and serious crimes, that are finally being taken seriously. Many older and vulnerable adults now have attorneys that they never would have had before, and the government is finally prosecuting financial crimes against elders and disabled adults. Abusers and exploiters beware.
Cassandra Jones is an elder law and family law attorney in Gardnerville. She can be reached at 782-0040.