| When a person is incapacitated due to an accident, disease or mental illness, any interested person can implement a guardianship action and nominate a relative, friend, fiduciary or the public guardian to act as a guardian over the person. In some states this is referred to as a "conservatorship." In Nevada there are two types of guardian, the guardian over the person and the guardian over the estate. If necessary, one guardian can be over the person and the estate.
Starting a guardianship is not an simple process and it is recommended that you at least use the law firm to open up the guardianship. Once a guardian is appointed, the annual accountings and less significant matters can usually be handled by the guardian.
To start the process, the person who is incapacitated (the proposed Ward) is usually diagnosed as incapacitated by a physician or mental health professional. Depending upon the circumstances, a temporary guardianship can be imposed to avoid problems of an immediate nature, e.g., to avoid a mentally incapacitated person from harming themselves or the depletion of accounts by a person being exploited by another. The temporary guardianship lasts for only seven days, but is normally extended by the court by another thirty (30) days after the court has had an interim hearing to determine the need for the extension.
After about a month of notice, the court will hear the petition for permanent appointment of a guardian and will consider all persons who can serve as a guardian. There is a list of preferred persons, such as a spouse or child of the proposed Ward, however, upon proof, the court will consider eliminating such persons because of mental infirmity or prior exploitation of the proposed ward.
Example: In one case, the court refused to appoint the spouse of the proposed Ward because she had made poor decisions regarding the care and treatment of the proposed Ward, her husband. Instead, the court appointed the public guardian and ordered that the elderly man be placed into a 24/7 care facility near the home so the elderly wife could visit. Indeed, the wife was later deemed incompetent herself. She clearly could not care for the needs of her husband, though under normal circumstances, she would have been the preferred guardian.
Another Example: In another case, a widowed mother was being exploited financially by a daughter. A grandson contested the appointment based upon financial misdealings. After an evidentiary hearing, the court concluded that a guardian over the estate (finances) of the ward was necessary to avoid further exploitation, however, the physical care of the daughter was determined to be in the best interest of the mother and she was left in the physical care of the daughter. The court determined that the grandson was not sufficiently mature to care for his grandmother at that time, but the court implemented visitation between the grandmother and grandson so the grandson could keep track of any further exploitation.
The most common guardianship is for those who have mental inadequacies due to injury or birth defects. The parents are usually named guardians after the child reaches the age of eighteen. The parents are then able to continue their supervision and involvement with the child to assure continued assistance from the state or federal government and to be able to act in the name of the child during their years of adulthood.
Guardianship is litearlly the power of the state to act in the best interest of its citizens. The power is given by the state to the guardian. This power is absolute and is given in order to protect those who are infirm.
The guardianship court requires an annual accounting of guardians to report on the financial and physical condition of the ward. The process of accounting is relatively simple and can be done without the involvement of the law firm.
If you would like to discuss the process of appointing a guardian, call today and set an appointment. |
