March 2018

Read the main articles related to “Elder Law” in the March 2018 issue of COMMUNIQUÉ, the official publication of the Clark County Bar Association:

Click image to download full 32-page issue (4 MB PDF file) of the March 2018 issue of COMMUNIQUE.

In the print edition, readers can read about court news, bar activities, and other practical content, including:

  • “Considering Legal Issues Faced by Seniors” By CCBA President John P. Aldrich, Esq.
  • “Books Behind Bars Winter Donation Drive” By Alysa Grimes and Seleste Wyse
  • “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
  • “Pro Bono Corner: A Passion for Pro Bono Born in the Las Vegas Desert” By Alexis L. Brown, Esq.
  • “Departments: Bar Business, Member Moves, New Members, and Court Changes”

© 2018 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (March 2018). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.

All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.


As We Grow Older

By Sugar Vogel, Esq.

Cheri “Sugar” Cane Vogel

Age has a way of creeping up on you. Remember when 65 was considered old? Now with people living longer, it’s not that unusual to see people live into their 90’s. Those of us in the baby boomer generation, like me, often find themselves taking care of that elderly parent who has reached their 90’s. The challenges can be enormous.

We at the Southern Nevada Senior Law Program (SNSLP) assist seniors age 60 and older. As people are living longer, it is not unusual to see the 65 year old son bringing in his 90-year-old father for legal services. The legal needs of that 90 year old are far different than the legal needs of his son.

Many of our clients, particularly those who reach their later years, face catastrophic illnesses and need to do end-of-life planning. The key to end-of-life planning is advance planning; this planning must be well ahead of the catastrophic illness which wreaks havoc on the senior and his loved ones. Also, with a 90 year old, there is a greater sense of urgency in completing these end-of-life planning documents while he still has capacity without cognitive impairment. With these documents correctly completed, the older senior can be confident that his wishes will be followed. Advance planning includes preparation of documents including Durable Power of Attorney for Health Care, Directive to Physician, and Do not Resuscitate (DNR) documents. The Uniform Rights of the Terminally Ill Act can be found at NRS. 449.535-NRS.449.860. These documents can be part of the estate plan of the individual or prepared independently.

The 90-year-old father may be facing issues with his potential or actual placement in a long term care facility. The issues of a 90 year old can loom large and affect the senior’s overall well-being. Ordinarily, a 65 year old does not require such a long term care facility placement, but if he does, it is usually short term and not much of an issue for the younger senior.

Medicaid planning issues can be very serious for a 90 year old since so much of his life has passed and there is not much time left for financial planning. With a 65 year old, there is generally a longer period to plan for his financial future and to educate him as to the proper decisions for his future.

Finally, providing services for a 90-year-old man who is the victim of elder abuse is far more difficult and heart wrenching than providing similar services for a 65-year-old victim of elder abuse. The older senior may not have dementia, but may have a poor memory; he may be frail and extremely frightened while the younger senior may have an excellent memory, be robust and not angry, but not frightened. These different circumstances require different treatment. It is more challenging to provide the necessary legal services to the 90 year old due to the complications of age.

SNSLP is the only legal service provider in Clark County that exclusively serves seniors. SNSLP provides legal advice and representation in a variety of civil areas including:

  • Simple wills, estate planning, and probate matters;
  • Advance directives (living wills and durable powers of attorney for health care);
  • Long-term health care planning, including improper discharge from facilities;
  • Consumer, including unfair debt collection, merchant disputes, and contract issues;
  • Social Security, Medicaid, Medicare, and Veterans’ benefits;
  • Prevention of elder abuse;
  • Real property, including beneficiary deeds, homesteads, and termination of joint tenancies; and
  • Landlord/tenant, HOA, and foreclosure assistance.

Bette Davis was right. “Old age is no place for sissies.” Although we cannot control when a devastating illness may strike, we can be prepared. The key is planning.
If you would like to assist SNSLP in its efforts to assists seniors, please contact Sugar Vogel or Elana T. Graham at 702-229-6644 or visit us at www.snslp.org.


Sugar Vogel, Esq. has been the Executive Director of SNSLP since 1986.


Elder Law Discovery Practice Tip: Requesting Records and/or Testimony from Nevada’s Elder Protective Services

By Homa S. Woodrum, Esq.

Homa Woodrum

Elder Protective Services’ records revealing substantiated abuse may not have risen to the criminal standard for prosecution, but could be persuasive to the finder of fact in a civil matter. This means they could be crucial in a guardianship dispute between siblings where there are allegations that the proposed guardian is not appropriate to serve. They could be crucial in a probate case or a trust case as well.

When a subpoena duces tecum is served upon Elder Protective Services, the receiving party forwards the document to counsel at the Office of the Nevada Attorney General for review. Often, what is called an “objection letter” is the preliminary response to requesting counsel. The opening of discovery is not enough to request records because of specific statutes protecting the privacy of that information.

Releasing confidential records of an investigation could be a misdemeanor.

NRS 200.5095(1) provides that “reports made pursuant to NRS 200.5093, 200.50935, and 200.5094, and records and investigations relating to those reports, are confidential.” Not only that, but the release of that confidential information under certain circumstances is a misdemeanor. NRS 200.5095(2).

Parties who have access to records without a specific court order to release them are as follows (with “the individual” meaning “an older person or a vulnerable person who may have been abused, neglected, exploited, isolated, or abandoned.”):

  • A physician providing care to the individual.
  • An agency authorized to care for or responsible to care for or supervise the individual.
  • A district attorney for in camera review.
  • A court, after in camera review, determining that disclosure is necessary to the case at hand.
  • A person engaged in bona fide research (with certain restrictions for confidentiality).
  • A grand jury after appropriate determination.
  • Any entity comparable to the above.
  • A legal guardian (the reporting party will be redacted) as long as that guardian is not the person suspected of the abuse, etc.
  • An executor or administrator of the individual’s estate if they are now deceased, so long as the administrator is not the person suspected of the abuse, etc.
  • The person themselves so long as they have not been ruled incompetent.

Requesting records if you are allowed to have them by statute is as simple as writing a letter.

Elder Protective Services’ records regarding an individual can always be released to that individual, but the reporting party’s information will be redacted. It is as simple as writing a letter making the request. If you are seeking to request records from Elder Protective Services to find out who reported the case, you will be disappointed.

If you are an attorney representing an individual with capacity, you could ask that they request the records, which the client would be permitted to share with you. If your client is under guardianship, you would need to include in your letter the order appointing you as counsel. It is good practice, and many attorneys who represent protected persons already do this, to clearly state your authority to receive records in that draft order of appointment.

In probate matters, letters of administration should be included with a written request for records. Be aware that sometimes the very individual investigated for abuse or neglect ends up as the administrator in a probate case.

A subpoena duces tecum is not sufficient to obtain records, even if discovery is opened, if the requesting party is not covered by NRS 200.5095(3)’s exceptions.

A careful reading of NRS 200.5095(3)(d) provides the avenue for counsel to request records where they do not meet one of the other statutory exceptions. That is, counsel can make a request to the court for an order releasing the records. A subpoena duces tecum is not a proxy for an actual court order required by statute, even if discovery was opened by court order.

Requests for testimony are covered under the same restrictions as records.

If you are seeking the testimony of an employee of the Aging and Disability Services Division for a case, the rules about who can make requests for records indicated above should be a guide. An employee cannot testify about records or related information which would not otherwise be permitted. NRS 200.5098(3) specifically states that, “[a]ny information disclosed in violation of this subsection is inadmissible in all judicial proceedings.”

Proceed with care and courtesy.

Elder Protective Services’ staff cannot give you legal advice, even about requesting records or setting depositions. Please do not be rude or hostile with requests. First: it is nice to be nice. Second, staff members are public employees under NRS 199.300. Elder Protective Services’ staff also cannot confirm whether they even have records related to your case because that would be a violation of the confidentiality statute.

Knowing what the law says about these records and/or testimony should overall make any attorney think twice before relying on a claim in someone else’s brief that (1) there was an investigation, or (2) that an investigation ended favorably for that party. As important to effective representation as this information can be, the extra time and effort necessary to appropriately obtain it is worthwhile.

Homa S. Woodrum, Esq. is the Governor-appointed attorney for the Rights of Older Persons, Persons with a Physical Disability, an Intellectual Disability or a Related Condition with Nevada’s Aging and Disability Services Division. She is a 2007 graduate of UNLV’s William S. Boyd School of Law and can be reached at hwoodrum@adsd.nv.gov. Special thanks to Deputy Attorney General Linda Anderson, Esq. and ADSD Social Services Chief, Carrie Embree, LSW.


Guardianship Update

By Erin Houston, Esq.

Erin Houston

Guardianships in Nevada have come under intense scrutiny in the last few years. As a result, the 2017 Nevada Legislature passed several bills effecting many changes in guardianship practice. Below is a very brief summary of those bills:

Senate Bill 433 replaces the word “ward” with “protected person,” and establishes mandatory visitation between a protected person and members of his or her immediate family. SB 433 also requires a guardian to give notice to all interested parties–such as family members within the second degree of consanguinity–with their intent to move a protected person, and places a higher burden on a guardian to provide notice of petitions and inventories to all interested persons. Notably, SB 433 also requires that the court appoint an attorney to represent the protected person from a local legal aid organization. In Las Vegas, that legal aid organization is the Legal Aid Center of Southern Nevada (LACSN). Practitioners should note that the appointed attorneys are not acting as a guardian ad litem speaking in the protected person’s best interest, but simply as a voice to state the wishes of the protected person to the court. SB 433 went into effect on July 1, 2017.

Assembly Bill 319 relates to minor guardianships and makes similar changes to those made in Senate Bill 433. Specifically, AB 319 authorizes the appointment of a guardian ad litem, authorizes the award of visitation rights between a protected minor and certain relatives, and revises the factors for consideration in guardianship determinations for a minor. AB 319 went into effect on July 1, 2017.
Assembly Bill 254 authorizes a court which has jurisdiction over a guardianship to assume jurisdiction of a trust of which the protected person is currently a beneficiary or from which the protected person is entitled to receive distributions. AB 254 also requires that an inventory must include the existence of any trust of which the protected person is a beneficiary. AB 254 went into effect on October 1, 2017.

Assembly Bill 130 establishes the formation of a Guardianship Compliance Office and revises the definition of the term “incapacitated,” which replaces the previous statutory term “incompetent.” AB 130 also authorizes the court to require a proposed guardian to file a proposed preliminary care plan and budget, and establishes the process by which individuals may obtain approval of the court for attorney’s fees and costs. Notably, Section Three of AB 130 states that any person who retains an attorney for representation in a guardianship matter is personally liable for the resulting attorney’s fees and costs. While that person may ultimately petition the court for payment of such attorney’s fees and costs from the estate of the protected person, the mechanism by which the court may approve those fees is more onerous than previously written. AB 130 went into effect on January 1, 2018.
Generally speaking, much of the new legislation provides for more transparency on the part of the guardian. However, while these bills are all effective, they have not yet been codified on the Nevada Legislature’s website. The full text of each bill can be found at www.leg.state.nv.us.

Erin Houston, Esq. is an associate attorney at Goldsmith & Guymon, P.C., where she practices primarily in the areas of bankruptcy, domestic representation, guardianship proceedings, estate planning, and probate litigation. She was formerly a staff attorney at Nevada Legal Services.


Senior Citizens and Their Four-Legged Companions: What Rights Do Service Animals and Their Owners Have Under Nevada Law?

By Jennifer Braster, Esq.

Jennifer Braster

It is not uncommon that with age individuals will experience more health issues and potential disabilities. With that, there may be a greater need for service animals, leading to questions as to what rights individuals with service animals have in both places of public accommodations and when seeking housing under Nevada law.

What is a “Service Animal”?

The use – or some would say abuse – of emotional support animals has been a hot topic in recent years. However, “emotion support” animals should not be confused with “service animals” under Nevada law, which directly relate to the use of a dog (or miniature horse) due to a disability. Specifically, Nevada law defines a “service animal” as “any dog [or miniature horse] that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” NRS 426.097; 28 C.F.R. § 104.

A Person May Bring a Service Animal Into Places of Public Accommodation So Long as the Animal Behaves

Under Nevada law, places of public accommodation must allow a person to bring a service animal into that business. NRS 651.075. Notably, based on Nevada law, that animal could only be a dog or miniature horse. The place of public accommodation cannot charge an additional fee or deposit for the service animal, but if the animal is out of control and the person cannot take effective action to control the animal or if the animal poses a direct threat to the health or safety of others, the place of public accommodation may request the person remove the animal. NRS 651.075(2)(b). If the service animal damages the location, the person accompanying the service animal is liable for those damages. Id.

Further, when a service animal accompanies someone, the owner should be mindful that under Nevada law, the only questions the business may ask regarding the animal is “[I]f the animal is a service animal or animal in training” and “[w]hat tasks the animal is trained to perform or is being trained to perform.” NRS 651.075(2)(a). Nevada law substantially limits the inquiries that places of public accommodation may ask. It is important for individuals, especially senior citizens, to understand what businesses may or may not ask when traveling with a service animal.

Nevada Law Permits Landlords to Require Proof That an Animal Is a Service Animal

Unlike businesses, which are limited in the questions they can pose of an individual traveling with a service animal, landlords may require proof of a “service animal.” While a landlord may not refuse to rent a dwelling to a person with a disability because of that person’s service animal, the landlord can require proof that the “animal assists, supports or provides service to the person with a disability.” NRS 118.105(2). The requirement may be satisfied by a statement from a healthcare provider that the animal “performs a function that ameliorates the effects of the person’s disability.”

Complaints for violations of this law may be made to the Nevada Equal Rights Commission. Again, it is important for senior citizens to understand what landlords may or may not require to rent to a person with a service animal.

Nevada law provides fairly comprehensive protections to individuals with service animals. However, on the other hand, Nevada law does limit what type of animal may be a service animal, i.e. only a dog or miniature horse. Thus while a business or landlord may often times not refuse to allow a service dog or miniature horse, they can certainly prohibit “service” cats, ferrets, or even pigs, as these types of animals do not exist under Nevada law.

Jennifer L. Braster, Esq. is a founding partner of Naylor & Braster. Jennifer practices primarily in the area of commercial litigation and has also represented clients with various animal law issues, including animal custody, enforcement of dangerous dog regulations, and, along with attorney Maggie McLetchie, civil rights cases involving the shootings of pet dogs.


About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2018 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher.  Editorial policy available upon request.

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COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.