Part II – Legislative Help to Prevent Exploitation by Powers of Attorney

The Nevada Revised Statutes contain a "code of conduct" for Agents.  NRS 162A.310 provides, in pertinent part, that an agent that has accepted appointment shall: (a) Act loyally for the principal’s benefit; (b) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest; (c) Act with the care, competence and diligence ordinarily exercised by agents in similar circumstances;(d) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;(e) Cooperate with a person that has authority to make health care decisions for the principal; and (f) Attempt to preserve the principal’s estate plan, to the extent actually known by the agent. The problem which remains is that if the POA specifically grants the Agent the power to revise an estate plan, then the POA can still be easily used to benefit a potential exploiter to the detriment of a senior who has been unduly influenced.  Also, despite this Code of Conduct, there is no way to enforce the Agent is acting appropriately since there is not Court oversight as provided in a guardianship matter.  Statistics regarding the use of POAs to commit financial exploitation of the Elderly are hard to come by.  However, it is clear that incidents of financial abuse are on the rise — possibly caused, in part, by the combination of an increasingly older population and tough economic times.

The Nevada Legislature recently recognized the continuing abuse in the use of POAs.  AB 533 was passed in the 2011 Legislative Session and signed into law by Governor Sandoval.  This legislation amends NRS 162A which deals with POAs.  As a result of the new law, if a person resides or is about to reside in a hospital, assisted living facility or facility for skilled nursing care, then he/she may NOT name as an agent in any POA the facility, an owner or operator or an employee of the facility.  While POAs can be a wonderful tool, please consult with an attorney BEFORE you execute any document to ensure you understand the effects and consequences.

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