Finance
Instrument: Power of attorney (POA) for financial matters
What is it for?
The POA for finances allows any person age 18 or older (the “principal”) to appoint one agent or two or more coagents to make financial decisions on his or her behalf.
What does it do?
The POA for financial matters grants an agent the authority to make decisions only about the principal’s property. A principal needs to execute a DPOA for health care decisions to appoint an agent for health matters.
In doing so, per Nev. Rev. Stat. § 162A.310, an agent must act in good faith, only within the scope of authority specified in the POA for finances, and in accordance with the principal’s reasonable expectations. An agent also must act loyally, avoid conflicts of interest, and act with care, competence, and diligence consistent with a fiduciary duty. An agent is not liable if the principal’s property declines as a result of the agent’s actions absent a breach of this duty.
The POA for financial matters must be accepted by third parties, unless they have a good faith reason for refusing to do so, such as actual knowledge that another person has reported to adult protective services that the agent may be abusing, neglecting, or exploiting the principal.
How does one make it?
To execute a POA for financial matters the principal must sign the POA form. Alternatively, another individual, at the principal’s direction and in the principal’s presence, may sign the principal’s name on the form.
For principals residing in a hospital, residential facility for groups, facility for skilled nursing or home for individual residential care, a certification of competency by an advanced practice registered nurse, a physician, psychiatrist or licensed psychologist is also required.
When does it come into effect?
The POA for financial matters is effective immediately when executed unless the principal states a future date or event that will activate the powers expressed in the form. The later kind of POA is often called a “springing” POA because it “springs” into effect after a specific condition is met. For example, a POA for financial matters may become effective only after the principal has determined incapacitated by an advanced practice registered nurse, a physician, psychiatrist or licensed psychologist. For springing POAs, the POA may specify an individual responsible for determining whether a triggering event has occurred.
How long does it last?
The POA for financial matters generally lasts until either the principal revokes it; the principal dies; the agent dies or becomes incapacitated or resigns; or upon the DPOA’s termination date, if one is provided.
How does one end it?
The principal may revoke and invalidate a POA for financial matters in the same way as an SDMA, namely, by destroying the instrument or directing another in the presence of the adult with a functional impairment to do so. An adult may also either state verbally in the presence of two witnesses or in a signed and dated writing that he or she wishes to revoke the POA.
Also, a subsequent POA for financial matters automatically revokes a previous one.
What does an example look like?
There is a general statutory form. Nev. Rev. Stat. Ann. § 162A.620
What else should one know?
Nevada’s POA is based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
Instrument: Educational representative appointment
What is it for?
The educational representative appointment allows students aged 18 years or older with “significant cognitive impairments” to have their parents appointed as decision-makers with regard to their special education program, pursuant to Nev. Rev. Stat. Ann. § 388.459 and Nev. Admin. Code § 388.197. Educational representatives may be appointed only for students who participate in Nevada’s alternate assessment.
What does it do?
The educational representative appointment enables parents to continue to make educational decisions for their children with “significant cognitive impairments” after their children turn 18 years old, when rights under the Individuals with Disabilities Education Act (IDEA) generally transfer to students.
How does one make it?
Parents may apply to the Department of Education using a prescribed application form as soon as a student turns 16 years old, but no later than 90 days before the student’s eighteenth birthday. Parents must declare their belief that the student “does not have the ability to provide informed consent with respect to his or her own educational program.
When does it come into effect?
The appointment becomes effective only when the student turns 18 years old.
How long does it last?
Presumably, until the adult student stops receiving special education services.
How does one end it?
Either the parent or student may appeal the Department’s determination through a due process complaint. Students have a right to notice even where parents are appointed educational representatives, per Nev. Admin. Code § 388.197.
What does an example look like?
Nevada’s regulations do not provide an example.
What else should one know?
Nev. Admin. Code § 388.197 requires school districts to provide parents with a copy of the “Notice of Application to Represent the Educational Interests of a Special Education Student at the Age of Majority” at least one year before a student with “significant cognitive impairments” turns 18 years old.
Last updated April 2021
Health
Instrument: Durable power of attorney (DPOA) for health care decisions
What is it for?
The DPOA for health care decisions any person age 18 or older “of sound mind” may use to appoint a health care agent. The agent is empowered to make health care decisions on behalf of the principal if and only if the principal “has incapacity,” as determined by two licensed health care professionals. The principal may also identify an alternate agent, in the event that the health care agent is unable or unwilling to serve that role.
What does it do?
The DPOA for health care decisions gives authority to an agent to make health care decisions on behalf of the principal if the principal is determined incapacitated by a licensed clinician. The agent has the same duties as an agent appointed through a POA for Financial Matters.
The principal may request the Nevada Secretary of State to store a copy in an electronic lockbox that may be accessed by authorized health care providers.
How does one make it?
The principal must voluntarily sign a writing in the presence of two witnesses who know the principal personally or before a notary public. If witnesses, then at least one must not be related by blood, marriage or adoption, and not entitled to a portion of the principal’s estate.
For principals residing in a hospital, residential facility for groups, facility for skilled nursing or home for individual residential care, a certification of competency by an advanced practice registered nurse, a physician, psychiatrist or licensed psychologist is also required.
When does it come into effect?
The agent’s authority to make health care decisions becomes effective upon a determination in a writing or other record by an advanced practice registered nurse, a physician, psychiatrist or licensed psychologist that the principal is incapacitated, per Nev. Rev. Stat. Ann. § 162A.810.
How long does it last?
The DPOA for health care decisions generally lasts until either the principal revokes it; the principal dies; the agent dies or becomes incapacitated or resigns; or upon the DPOA’s termination date, if one is provided.
How does one end it?
The principal may revoke the DPOA for health care decisions at any time either orally or in writing, although the Nevada statute does not specify the means for doing so.
Also, a subsequent DPOA for health care decisions automatically revokes a previous one.
What does an example look like?
There are three statutory forms: a general form, a form for adults with intellectual disabilities, and a form for adults with dementia. Nev. Rev. Stat. Ann. §§ 162A.860, 865 & 870. The form for adults with intellectual disabilities is written in the first person and contains somewhat simpler language than the general forms.
What else should one know?
Nev. Rev. Stat. Ann. §§ 162A.850 expressly bars agents from consenting to the following:
(a) Commitment or placement of the principal in a facility for treatment of mental illness;
(b) Convulsive treatment;
(c) Psychosurgery;
(d) Sterilization;
(e) Abortion;
(f) Aversive intervention, as that term is defined in NRS 449A.203;
(g) Experimental medical, biomedical or behavioral treatment, or participation in any medical, biomedical or behavioral research program; or
(h) Any other treatment expressly barred by the DPOA.
Last updated April 2021
General
Instrument: Supported decision-making agreement (SDMA)
What is it for?
The supported decision-making agreement (SDMA) allows an adult with a disability (the “principal”) to give one or more “supporters” standing to assist with certain decisions. These may include any kind of decision. Per Nev. Rev. Stat. § 162C.310, decisions or requests made or communicated by a principal with the assistance of a supporter must be recognized as the decision or request of the principal.
What does it do?
The SDMA allows an adult with a disability to retain decision-making authority while still getting assistance from “supporters” to make those decisions. However, an SDMA does not empower supporters to make decisions for the adult.
Unless otherwise provided in the SDMA, a supporter may do all of the following, per Nev. Rev. Stat. § 162C.210:
(a) assist the principal in understanding information, options, responsibilities and consequences of the principal’s life decisions;
(b) help the principal access, obtain and understand any information that is relevant to any given life decision;.
(c) assist the principal in finding, obtaining, making appointments for and implementing the principal’s support services or plans for support services;
(d) help the principal monitor information about the principal’s affairs or support services; and
(e) ascertain the wishes and decisions of the principal, assist in communicating those wishes and decisions to other persons, and advocate to ensure that the wishes and decisions of the principal are implemented.
How does one make it?
Per Nev. Rev. Stat. § 162C.200, an adult with a disability must enter into the SDMA voluntarily and without coercion or undue influence. The adult must also understand “the nature and effect of the agreement.” the SDMA must be in writing, dated, and signed by each party in the presence of at least two adult witnesses. The SDMA must also list the types of decisions with which the supporter is authorized to assist the principal, as well as any decisions a supporter is not authorized to assist with.
When does it come into effect?
Although the statute does not specify, the SDMA is likely effective immediately upon its signing and dating by the adult with a disability, the supporter, and witnesses.
How long does it last?
Although the statute does not specify, the SDMA generally lasts until it is either terminated by either party or by the terms of the SDMA itself.
How does one end it?
Per Nev. Rev. Stat. § 162C.200, either the principal or a supporter may terminate the SDMA at any time either verbally or in writing, provided that notice is given to the other parties to the SDMA.
What does an example look like?
The statute does not provide a standard SDMA form.
What else should one know?
Per Nev. Rev. Stat. § 162C.300, an SDMA may not be used as evidence of incapacity. Nor does an SDMA prevent an adult from acting independently of the agreement.
Although a supporter may not make decisions for the principal, per Nev. Rev. Stat. § 162C.320 third parties are not subject to civil or criminal liability or discipline for unprofessional conduct for giving effect to a declaration contained within the SDMA or for following the direction of a supporter named in the instrument.
Last updated April 2021