Southern Nevada is a welcome retirement location for many elderly individuals. Census data shows that an estimated 12-15% of Clark County, Nevada, residents are 60 years old or older. Being aware of this significant elderly population, the Nevada legislature has attempted to provide protections for elderly individuals who might become targets for financial exploitation. Specifically, if an “older person” (meaning any person who is 60 years of age or older) suffers a loss of money or property as a result of exploitation, the older person can sue the person who caused the exploitation in order to recover the lost money or property. In addition, and as a very important addition, the person who caused the exploitation is liable to the older person for two times the value of the money or property taken from the older person. See NRS 41.1395. This claim is often called an “elder abuse” or “elder exploitation” claim.
What if I think my sibling is exploiting my parent? Can I file a lawsuit on behalf of my parent?
Often the older person’s children or other loved ones become suspicious that the older person is at risk of being exploited or is actually being exploited. Too often, one child believes that it is his own brother or sister who is exploiting their mother or father, but it is also frequently alleged that a caregiver or another unrelated person who has gained the confidence of the older person is exploiting the older person. Often the child asks whether he can file the elder abuse or elder exploitation lawsuit on behalf of his elderly parent. This question also frequently arises after the older person has died.
It is clear that the older person herself can file the lawsuit on her own behalf. However, what can be done if the older person will not or cannot file the lawsuit? Who has the legal right to protect the older person’s money or property by filing the lawsuit? The Nevada Court of Appeals provided guidance on this issue in 2015 in Echevarria v. Echevarria. In Echevarria, Michael sued his sister Angel shortly after their mother, Jean, died raising claims that Angel had taken advantage of Jean and inappropriately obtained Jean’s money or property. Among other claims, Michael sued Angel for “elder abuse” of Jean under NRS 41.1395. Jean requested that the court dismiss the elder abuse claim arguing that Michael was not authorized by the law to file on behalf of his mother.
In analyzing NRS 41.1395, the Court of Appeals concluded that the law is clear that the older person has authority to file a lawsuit for elder abuse under this statute. In addition, the Court of Appeals stated that an executor, administrator, or guardian may also file the claim on behalf of the older person, citing to NRCP 17(a) that requires the “real party in interest” to file the lawsuit. Because Michael was not the older person (obviously), and also was not his mother’s guardian nor the executor or administrator of her estate, the Court of Appeals determined that Michael was prohibited from filing the elder abuse lawsuit against his sister, and the Court of Appeals affirmed the district court’s decision to dismiss the elder abuse claim from his lawsuit.
You’ll need to be a “representative” in order to file a claim on behalf of an older person.
The Echevarria decision is not yet controlling legal precedent in Nevada because it was an unpublished decision. However, the reasoning of the Court of Appeals is correct and should be applied by the local courts in determining who has the right to sue for elder abuse or exploitation. It is clear that the older person herself can file the lawsuit. However, if the older person will not file the lawsuit or cannot file it (due to incapacity or death, for example), the only other party that could file the lawsuit for elder abuse or exploitation of the older person would be someone who is acting in an official representative capacity, such as a court-appointed guardian or court-appointed executor or administrator of the older person’s estate.