Caregivers Who Receive Property From an Elderly Dependent are Walking a Legal Tightrope
As children we’re dependent on our parents for all our needs. It seems ironic that our final days may be spent under the care of the children we once cared for. Elderly dependents are vulnerable like small children, but they often have assets. In 2011 Nevada adopted NRS 155.097 which seeks to protect dependent adults from people acquiring their property through fraud, duress or undue influence. Caregivers who expect to receive gifts through wills, trusts, and other instruments need to know they may be walking a legal tight rope. Nevada law can be harsh for caretakers who receive gifts from the dependents they care for.
Nevada law provides that the transfer of property to caregivers is presumed to be void unless it can be shown not to be the product fraud, duress, or undue influence. If someone challenges the transfer the caregiver can only overcome the presumption with clear and convincing evidence demonstrating the transfer was not the result of fraud, duress, or undue influence. This standard of proof is higher than the usual civil evidentiary standard of clear and convincing evidence. If the caregiver is not successful in rebutting the presumption, the caregiver will lose the gift and may be responsible for the challenging party’s attorney’s fees and costs. Caregivers receiving gifts don’t want to find themselves in this situation.
Fortunately, there is a way to avoid the trap for caregivers who stand to receive a gift from their elderly dependent. NRS 155.0975 allows an exception to the rule for cases where an independent attorney reviews the planned transfer and signs a ‘Certificate of Independent Review’ stating that the transfer was not the result of fraud, duress, or undue influence.
The livingtrustsource.com recommends that if you’re a caregiver, and your elderly dependent desires to transfer property to you through a will, trust, or other instrument, that you seek the assistance of a qualified lawyer to guide you in the process to avoid the presumption of fraud, duress, or undue influence.
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