Nevada’s population of people over the age of 65 has steadily increased over the years, thanks to an aging population and the popularity of our warm climate as a retirement destination. Unfortunately, the elderly can be susceptible to abuse and neglect by people who live with or care for them. Nevada law provides a range of options for someone who is the victim of elder abuse to seek compensation.
Three causes of action in elder abuse cases
Nevada’s elder abuse law, NRS 41.1395, protects anyone who is 60 years of age or older by providing that an injured plaintiff may recover twice their actual damages and, in some situations, attorneys’ fees. To recover double damages, an older person must have suffered a personal injury or death that is caused by abuse or neglect, or suffered a loss of money or property caused by exploitation. Attorney’s fees can be awarded in cases where the plaintiff shows by a preponderance of the evidence that the person who is liable for damages acted with recklessness, oppression, fraud, or malice.
The statute provides three potential causes of action:
Abuse involves the willful and unjustified infliction of pain, injury, or mental anguish, or deprivation of food, shelter, clothing, or services that are necessary to maintain the older person’s physical or mental health. NRS 41.1395(4)(a). The requirement that an act be willful is an important limitation for abuse claims. It is not enough that someone be merely negligent. Some cases may also hinge on whether a given service was “necessary” for the wellbeing of the older person. For example, the amount of food that must be provided to maintain the health of an infirm person may be difficult to establish.
Exploitation has two components. NRS 41.1395(4)(b). First, the defendant must be someone in a position of trust, such as a caregiver or family member, or must hold a power of attorney or legal guardianship with respect to the older person. Second, the defendant must have taken money, property, or other assets from the older person. The taking can be through an act of deception, intimidation, or undue influence, or can simply be an act of conversion.
In either case, the taking must be intended to permanently deprive the older person of use and benefit of the taken asset. A clear example would be someone taking money from an older person’s wallet. But the statute provides that “undue influence” does not include “the normal influence that one member of a family has over another.” In other words, to show undue influence there must be something more than, for example, a family member making poor choices with the older person’s money.
A neglect claim can be brought only against someone who has assumed responsibility for the care of an older person, such as a home care provider. The defendant has to have expressly acknowledged his or her assumption of responsibility, verbally or through a written contract. The defendant must have failed “to provide food, shelter, clothing or services within the scope of the person’s responsibility or obligation, which are necessary to maintain the physical or mental health of the older person.” NRS 41.1395(4)(c).
The specific requirements in the definition of neglect that may complicate a lawsuit. The “express acknowledgment” requirement may pose challenges outside the context of contracted services. For informal arrangements, determining when someone has assumed responsibility for an older person may be subject to different opinions. Another issue in such contexts will be the scope of a caregiver’s responsibilities.
GGRM can help you pursue an elder abuse claim
For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area recover for personal injuries. If you or a loved one has suffered elder abuse and you have questions about your legal rights, our attorneys are happy to review your case. Call us today for a free consultation at 702-388-4476, or reach us through our contact page.