Facing a guardianship?
April 27, 2012
One of the things our aging population struggles with is how to manage their physical care, medical needs, and financial affairs as they age. In some cases, our parents or friends reach a point where they can no longer care for themselves. They may reach that point for many reasons including health problems or declining mental abilities. What can we do to help if they reach that point?
One option is to get a court-ordered guardianship.
In a guardianship, one person takes on the responsibility for caring for another. The court may grant the guardian some or all responsibility over another adult, depending on the situation.
How broad the guardian’s responsibilities will be defined by the court.
The adult needing help is called a ward.
It is not easy to get a court-ordered guardianship. First, someone must petition the court to be appointed guardian.
Under Nevada law, the guardian must be a Nevada resident, never convicted of a felony, and never lost a professional license due to misconduct. If there is no one qualified or able to act as a guardian, there are individuals in our community who perform guardianship services professionally.
These professionals may act as a co-guardian jointly with a petitioner to defray the burden of the responsibilities, or to help them qualify (such as if the petitioner lives out of state).
Additionally, any request for a guardianship must be supported by a doctor’s statement that a guardianship is a necessity. Many times a family physician will be able to write a letter, or complete the necessary form, to show that the proposed ward is not capable of managing his or her own care or finances. However, some privacy laws may make getting the doctor’s statement difficult. If necessary, the court can authorize a short-term guardianship (usually for a few weeks or months) in order to obtain the medical information or doctor’s note to support a request for a long-term guardianship.
Finally, if the request for a guardianship becomes contested, the person seeking a guardianship has the burden of producing clear and convincing evidence that the ward is incapacitated.
Mismanagement of funds by itself is generally not grounds for a guardianship.
A competent adult has the constitutional right to make bad decisions. Because of the high burden of proof, the petitioner must be able to show that the proposed ward is at substantial and immediate risk of physical or financial harm.
Over the next several weeks, I will be addressing what a guardian’s duties are, and their responsibility to provide care for the ward and manage their money. I will also address solutions to help avoid costly court supervision. It is not easy to care for our loved ones as they decline. I applaud those that step up to take care of their loved ones or family members. I hope to give you an overview of the court process, so you are free to provide the care and protection that your loved one needs. I also hope to give you some practical advice on how to fulfill your legal obligations, and get the help you need. Remember, you are not alone.