Powers of attorney critical
When a person with well-drafted powers of attorney becomes incapacitated and is therefore unable to take care of him or herself due to a mental and/or physical incapacity, typically their agent will be able to act immediately on their behalf and without any court involvement. That agent will have been previously authorized to now make all necessary health and financial decisions on behalf of the incapacitated person.
Unfortunately, the family of an incapacitated person without powers of attorney will often have to go through a formal court proceeding in order to obtain guardianship and be allowed to manage the incapacitated person’s medical treatment and finances. Even the simplest of guardianship proceeding can lead to several thousands of dollars in legal fees.
Guardianship means obtaining the legal authority to make health and financial decisions for another person. A “guardian” is the person appointed by the court to make those decisions and a “protected person” is that incapacitated person over whom the guardianship is granted.
As a general rule, anyone who is appropriate to serve as a person’s guardian can be appointed by the court. A guardian does not have to be related to the protected person, although preference will be given to suitable relatives. However, a minor, an incompetent person, a person who filed for bankruptcy in the past seven years, a person who has been convicted of a felony or committed a crime of domestic violence, neglect or abuse, and finally a disbarred or suspended professional cannot serve as a guardian. Nevada has additional requirements for non-resident guardians. Furthermore, the court may require the guardian to complete necessary trainings. One person can serve as a guardian or two people can petition to be co-guardians. If no one qualifies as a guardian, the Office of the Public Guardian can serve as the guardian.
A guardianship proceeding commences with a petition that should be filed in the county where the proposed protected person has been living for the past six months. Usually, the court will then set a hearing where the judge will hear evidence before making the decision. Certain relatives of the protected person must be notified by the proposed guardian about the proposed guardianship in order to give them a chance to participate in the hearing. That includes uninvolved family members.
A guardianship over an adult lasts until the protected person regains the ability to care for themselves and can be terminated upon request of the guardian or any other relative.
A guardianship over the person means that the guardian is responsible for the health and personal decisions for the protected person. A guardianship over the estate means that the guardian will be making financial decisions for the protected person. The guardian’s authority is not absolute. The guardian must seek the court’s approval in many instances and typically must hold the protected person’s funds in a “blocked account” that cannot be accessed without a court order.
Becoming a guardian is a big responsibility. Once a guardianship is in place, the court will continue to supervise the actions of the guardian and will require an annual report and, sometimes, an accounting.
A person who wishes to nominate another person to be appointed as their guardian, if it becomes necessary, may execute a Request to Nominate a Guardian form.
A guardianship process can be very time consuming, costly, and may often lead to the need for additional legal services. This can all be avoided if a person prepares well-drafted powers of attorney before becoming incapacitated.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.