Nevada adopts new guardian Bill of Rights: Plan to be protected
October 28, 2017
"As you get older three things happen. The first is your memory goes, and I can't remember the other two." – 20th Century British Comedian Sir Norman Wisdom.
Even though you can't choose what your mind and memory will be capable of as you age, you can decide now to prepare for the possibility of needing a guardian to protect you. But what protection do you have if your guardian fails you?
A guardian is appointed by a court to protect a person (also known as a "ward" or "protected person") who is unable to manage their affairs. Generally there is no supervision of a guardian except for the annual accounting filed with the court. Unfortunately, courts are not easily able to detect a guardian's bad behavior when everything appears to be in order and no person steps forward to object. Nevada's courts just do not have the resources to provide the oversight needed.
As a result of recent publicity of exploitation and abuse, the Nevada Legislature enacted legislation earlier this year vastly overhauling guardianship statutes. Senate Bill 229 (SB 229) establishes that guardians be nominated through a legal document called a Designation of Guardian. A Designation of Guardian must be signed by the person making the nomination and also signed by two disinterested witnesses before a notary. SB 229 provides the standard text of a Designation of Guardian in the statute which is publicly available.
Senate Bill 360 (SB 360) enacted the Wards' Bill of Rights proclaiming that each Ward has the right to an attorney, the right to notice, the right to privacy, and the right to be treated with dignity and respect. Now here's the key point – beyond these fundamental rights, SB 360 gives you the right to name any given person as your "Advocate" to appear and raise issues on your behalf. Your Advocate has the ability to provide the oversight and scrutiny that the court cannot. The more accountable guardians are, the less likely they are to fall short of their duties.
With this right to have an "Advocate" act on your behalf, you are able to name this person now in your Designation of Guardian and include language giving him or her right to oversee and supervise. Below are a few suggested provisions to consider including in your Designation of Guardian to assist your named Advocate in preventing exploitation:
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State a list of individuals that you would prefer not serve as your guardian;
State that your Advocate has the right to supervise the guardian, including the right to make reasonable demands for copies of financial records, receipts, and proof of expenditures;
State that your guardianship estate is responsible for the costs of compliance with the Advocate's requests;
State that your Advocate shall have the right to meet with you regularly;
State that the Advocate has the right to petition the Court for removal of the guardian upon evidence of a breach of duties owed; and
State your desire that the Court honor your requests to empower your named Advocate by incorporating these provisions into any order appointing a guardian.
Additionally, for greater protection, consider including the following as part of your estate plan:
An inventory of your assets;
A HIPAA (Health Insurance Portability and Accountability Act) that names those persons nominated as your guardian and Advocate so that your Advocate and the other nominated persons may oversee your medical treatment; and
A provision in your trust and/or general durable financial power of attorney empowering your Advocate with the right to oversee your trustee and/or attorney-in-fact.
It easy to believe that the person nominated as guardian will act only in your own best interests. Unfortunately, it doesn't always work out that way. Because exploitation and abuse can be subtle and hidden, the goal should be to reduce the risks by embracing your right to empower an Advocate.
Cassandra Jones and Michael Millward are the attorneys of Heritage Law Group, P.C. Both are residents of Gardnerville, focusing their law practice on estate planning, business planning, and probate. They can be reached at 782-0040 or http://www.HeritageNevada.com