Almost everyone needs a little help from time to time and some people may need help more than others.
Children and the elderly especially may need help when making big life or legal decisions. They may also need assistance when it comes to managing their finances or dealing with creditors.
In Nevada, guardianship offers those who cannot care for themselves a legal option for ensuring their needs and wishes are taken care of while ensuring that the person caring for them is meeting their legal obligations.
In this article, we explore your most frequently asked questions about Nevada guardianship.
After reading the information below you should understand what a guardianship is and the different types of guardianships, alternatives to Nevada guardianship, the responsibilities of a Nevada guardian and whether or not you need an attorney for your Nevada guardianship.
For more information, keep reading…
What is a Guardian?
A Guardian is one or more persons or entities appointed by a court of law to manage the personal and/or financial affairs of a person (the Protected Person) who is no longer able to manage his/her own affairs due to a medical/mental/physical disability, within the guardianship laws of the state.
Why Might a Guardianship Be Needed?
There are many different reasons a guardianship might be needed.
It is no secret that parents have the right to make decisions for their children and adults have the right to make decisions for themselves.
However, there may be times where a parent, for whatever reason, cannot make decisions for their children or an adult cannot make decisions for themselves. In these situations, a guardianship may be necessary.
Other reasons a guardianship may be needed for a child can include: a guardian over the child's estate if the child inherited assets (for instance, life insurance or cash accounts). This protects the assets until the child is an adult.
If an adult if the adult is incapacitated, meaning the person is unable to take care of himself or herself due to mental illness, mental deficiency, disease, or mental incapacity, a guardianship may be needed.
What are the different types of guardianship in Nevada?
Nevada law recognizes three basic types of guardians:
"Guardians over the person.” These guardians are responsible for decisions involving the ward's support, healthcare, and education.
“Guardians over the estate.” The Guardian of Estate is responsible to protect, preserve, manage and dispose of the estate in the individuals best interest. The guardian is responsible for financial decisions only. These responsibilities may include, but are not limited to: the sale of an individuals real or personal property, managing all income, filing annual accountings with the court, closing bank accounts, selling stock.
“Guardians over the person and estate.” These guardians make both personal and financial decisions for the ward. One person can serve as both guardian of the person and guardian of the estate. Or different people can take each role.
What does a Guardian do in a Nevada guardianship?
This depends on the type of guardianship.
Generally, a Guardian makes sure that the person under a guardianship (Protected Person) is safe, his/her assets are safe and that the decisions made are in the Protected Persons best personal and financial interest.
In a guardianship over the person, the guardian makes personal decisions that affect the ward.
This can include:
making sure the protected person has food, clothing, a safe place to live
ensuring the protected person has basic necesities
making medical, dental, psychological and other appropriate healthcare decisions for the protected person
making sure the protected person receives the right education and training.
A guardian over the estate makes decisions about the ward's finances.
These decisions can include:
deciding how to pay the protected person’s bills
making sure the protected person’s income, savings and finances are protected
ensuring appropriate stock and bond sales and transfers and otherwise protecting the financial interests of the protected person
However, being a guardian of the estate does not give the guardian absolute power and there are many things that the guardian must get court authority to do with the protected person’s money.
What is a temporary guardianship in Nevada?
Under Nevada state law, a judge may grant an emergency order of temporary guardianship when the petitioner can show that:
Proposed individual faces a substantial and immediate risk of financial loss or physical harm or needs immediate medical attention
Proposed individual lacks capacity to respond to the risk of loss or harm or to obtain the necessary medical attention
What are the general qualifications to be a guardian in Nevada?
In Nevada, anyone who is suitable under the law can be a guardian; however there are some limitations at the outset for serving as a guardian in Nevada.
First, you must be at least 18 years of age to be a guardian in Nevada.
You do not have to be related to the protected person to serve as the guardian, although preference is given to family members and if the guardianship is for a minor child, the Court will look to family members first.
If the ward is an adult, the ward's choice for a guardian will receive preference.
Usually, the Court will consider executed powers of attorney, wills and trusts in determining whether or not the protected person has identified a preference for someone to serve as a guardian. If the ward has not stated a preference, courts will give preference to a close relative.
One person can petition the court to be the guardian, or two people can petition the court to be co-guardians.
The court may require the guardian to complete any available training that the court finds appropriate.
For more information on disqualifying factors for guardianship, read below.
What are the reasons I might not be approved as a guardian in Nevada?
A court will usually not name someone a guardian if that person:
The person seeking guardianship is a minor child
Is unable to provide for the basic needs of the ward;
Has habitually used alcohol or any controlled substance (other than medical marijuana) during the previous 6 months;
Has been judicially determined to have committed abuse, neglect, exploitation, isolation or abandonment of another person. However, The court may appoint someone who has committed such a crime if the court finds it is in the best interest of the protected person to appoint that person the guardian.
Has been convicted of a felony. The court may appoint a person convicted of a felony if the court determines that the conviction should not disqualify the person from serving as a guardian. ; or
Has been disbarred or had a professional license suspended by the state of Nevada
The person has filed for bankruptcy within the last 7 years. The court may appoint a person who has filed for bankruptcy if the guardianship is over the person only (meaning no money will be handled), or if there are no other suitable candidates to serve as guardian. The court may order additional safeguards to protect the person's money.
I don't live in Nevada. Can I become a Guardian of a Protected Person in Nevada?
Yes. You can petition to be the guardian of a Nevada resident.
However, the proposed guardian must obtain a resident agent in Nevada to comply with the notice requirements.
You must complete the "Appointment of Registered Agent by Court-Appointed Nonresident Guardian of Adult" form located on the Secretary of State's website. The form should be mailed back to the Nevada Secretary of State.
Can more than one person have guardianship over a ward in Nevada?
If two people agree to share the duties of a guardian, they can file one set of papers to ask the court to be appointed co-guardians. In these types of cases, the guardians are referred to as “co-guardians.” In this type of guardianship, both guardians share the responsibilities for the ward.
What if I don’t want to share being a guardian with someone else, but more than one person wants to be the guardian?
If there are different people who want to be separately appointed the guardian, the court selects the person who is the most suitable.
To determine who is the most suitable, the court considers the following:
Whether the protected person, their spouse, or their parent nominated a person to be the guardian in a will or other writing;
A child’s preference (for child guardianships) if the child is 14 or older;
The relationship to the proposed protected person (in order of preference: spouse, adult child, parent, adult sibling, grandparent or adult grandchild, aunt/uncle/adult niece/adult nephew)
A recommendation from a CPS representative (for child guardianships)
Any request for the appointment of any other interested person that the court deems appropriate.
What if there is no one that wants to be the guardian or nobody is able to serve as the guardian? Will a stranger be appointed?
It is not unusual that a protected person’s needs may exceed the ability of a family member or friend to care for them.
In these cases there are a few options. One is to have another family member or friend become the guardian.
If there is still no one available or willing to be the guardian, the family member or friend can petition to have the Public Guardian appointed as the guardian. If the protected person can afford it, or if the family or friends of the protected person wants to pay for it, another option is to contact a private professional guardian in the Protected Person's area.
What are some alternatives to a guardianship in Nevada?
There are several options that may avoid the need to have a court-ordered guardianship:
Six Month Temporary Guardianship (for minor children). Parents can sign a voluntary, six-month temporary guardianship to place children in the care of another person temporarily without going to court. The parents and temporary guardian must sign and notarize the agreement. The temporary guardianship automatically expires six months after all parties have signed the agreement.
Adoption (for minor children). An attorney is recommended for this legal proceeding, as the requirements can be complicated.
Durable Power of Attorney. This is a document that gives a person the power to make decisions for another.
Durable Power of Attorney for Health Care Decisions. This is a document that gives a person the power to make health care decisions for another if the person becomes disabled or incapacitated.
Living Wills. This is a document that directs people what to do if you have an incurable and irreversible condition. This is also known as a “Declaration Designating Another Person to Decide to Withhold or Withdraw Life-Sustaining Treatment.”
Living Trust. This is a document that operates during the lifetime of the person on behalf of another person. An attorney should be consulted when creating a living trust.
Representative Payee. If a person age 60 or older is having trouble managing their finances, they can voluntarily enroll in the Public Guardian’s Representative Payee program. Services include ensuring monthly bills are paid to secure shelter, food, and clothing needs.
Is the Guardian responsible for the Protected Person's bills?
In Nevada, the Guardian is not personally responsible for the Protected Person's bills. Instead, the Guardian may use the Protected Person's finances to pay for the care and needs of the Protected Person.
It is the Guardian’s responsibility to make sure that creditors are aware of the financial limits for payment of any bills that occurred before the guardianship, and to make decisions for the care of the Protected Person within the parameters of the Protected Person's finances.
The Guardian is also responsible to apply for any entitlements that would assist the Protected Person's estate to help maintain the Protected Person such as SSA, SSI, Medicare, and Medicaid
How Long Does a Guardianship Last?
Guardianships can last for a very long time or be over very quickly.
Generally, a guardianship over an adult lasts until the adult regains the ability to care for himself, or until the adult passes away.
A guardianship over a child lasts until the child turns 18. If the child will not graduate high school until the age of 19, the child and the guardian can ask that the guardianship continue until the child graduates high school or turns 19, whichever happens first. The request to continue the guardianship must be made at least 2 weeks before the child turns 18.
Do I need an attorney for my Nevada guardianship case?
While hiring an attorney is not a requirement, it is strongly recommended. There are a number of excellent resources about the Nevada Guardianship Process; however, completing a guardianship and maintaining the documents to stay in compliance with Nevada guardianship laws can be overwhelming.
It is important to remember that guardians have a great deal of power over wards and they have a significant number of legal obligations. Having a knowledge Nevada guardianship attorney on your side, can ease the stress that comes with serving a guardian over a loved one.
If you or someone you know is in need of a guardianship, our office can help. We have handled hundreds of guardianship matters and can help you navigate the Nevada guardianship process. Call our office today at (702) 433-2889 or fill out our online form for more information about your Nevada guardianship.
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