Understanding Adult Guardianship for Your Loved Ones
When is an Adult Guardianship Needed?
The court’s decision to grant guardianship of an adult ward is generally based on one of two types of findings.
A finding of incompetency applies to adults who have mental illness, mental deficiency, or advanced age are at risk to take care of themselves or their property. A Court finding incompetency is determined based on a review of medical records and written evaluation from a board-certified psychiatrist or physician.
A finding of limited capacity includes an adult who is able to make some, but not all, of the decisions necessary for their own care and management of property. A Court finding limited capacity is based on a review of medical records and psychiatric evaluation.
Who Should Apply for Adult Guardianship?
There are two types of guardians.
If at all possible, family members should facilitate the guardianship as opposed to public guardians. Family members are generally more adept in knowing the needs of the ward than a stranger or third party. As such, it is a good idea for the family members to split the tasks between Guardian of personal decisions and Guardian of the estate decisions.
Public Guardians are court appointed or licensed persons or organizations who are in the business of helping individuals with their personal and estate decisions. This should be a matter of last resort, unless there is 1) no one in the family to take on the responsibility, 2) family members are ill, elderly or other circumstances prevent their effective performance as a guardian, or 3) Friends or family have exploited or neglected the person and would not be suitable to serve. In Clark County, one-fourth (1/4) of the cases referred for public guardianship involve individuals who come to the attention of authorities because of financial exploitation and/or physical abuse.
The requirements and procedure to obtain an adult guardianship are outlined in the Nevada Revised Statutes Chapter 159. There are four types of guardianship 1) temporary guardian 2) guardian of person 3) guardian of estate and 4) guardian of person and estate. Under Nevada state law, a judge may grant an emergency order of temporary guardianship when the petitioner can show that:
- Proposed person faces a substantial and immediate risk of financial loss or physical harm or needs immediate medical attention;
- Proposed person lacks capacity to respond to the risk of loss or harm or to obtain the necessary medical attention; and
- Petitioner has tried in good faith to notify the persons entitled to notice under the Nevada Revised Statutes.
The Guardian of the Person is responsible for proper care, maintenance, education and support of the individual. The guardian is responsible for personal and medical decisions only. The Guardian of Estate is responsible to protect, preserve, manage and dispose of the estate in the individual’s best interest. The guardian is responsible for financial decisions only. Legal duties and responsibilities of the Guardian of Estate Only are outlined in state law, under Nevada Revised Statutes. These responsibilities may include, but are not limited to: the sale of an individual’s real or personal property, managing all income, filing annual accountings with the court, closing bank accounts, selling stock.
The guardian must prepare a plan to address all medical, social, financial needs and revise as needed. An accounting is required yearly. In Clark County, the Court looks more closely at adult guardianships to ensure safety and welfare of wards and to ensure the integrity and use of the ward’s funds for the legitimate benefit of the ward.
Termination of Guardianship
Terminating the guardianship occurs upon death of the ward, guardianship obtained in another state or the ward gaining competency. Termination usually does not occur because of the ward improving. It is more often because the ward is deceased. When the ward is deceased, a final accounting and a hearing to approve the final accounting is required. When the ward has moved from Nevada and guardianship is obtained in another state, proof of the case is required. To prove the ward has gained competence, a letter from two (2) different doctors is required.