guardianships in nevada

Guardianships in Nevada www.wealth-counselors.com Phone: (775) 823-9455 1

Understanding What a Guardianship Is, as Well as What Is Required to Establish One, Can be Extremely Helpful

in Deciding Whether or Not a Guardianship is Necessary

BRYCE L. RADER RENO NEVADA ESTATE PLANNING ATTORNEY

GUARDIANSHIPS

IN NEVADA

http://www.wealth-counselors.com/estate_planning/index.php/estate-planning/


Illness and injury are not things that we expect to happen, nor can we predict

that an illness or injury will leave a loved-one incapable of taking care of

themselves. If this unfortunate situation occurs, it is helpful tounderstand the

range of options that are available to you and your family. If the incapacitated

person did not establish a revocable living trust, establishing a guardianshipmay

be a necessary option. Understanding what a guardianship is, as well as what is

required to establish one, can be extremely helpful in making your decision.

A court proceeding is required to establish a guardianship. During the court

proceeding, someone is appointed by a judge to serve as guardian.The chosen

guardian will be authorized by the court to control the property and finances of

the ward. Depending on the situation, the guardian can also be given control


over all of the person’s medical affairs. Courts generally have very broad

discretion over determining who to appoint. A spouse, adult child, or sibling is

often the most likely candidate. Some courts will consider the ward’s

preferences.

DETERMINING INCAPACITY

The first step in the guardianship process is for the court to determine whether

the would-be ward is, in fact, incapacitated. The term “incapacity” means the

inability to make proper decisions on your own behalf. The lack of decision

making capability may stem from a disability, cognitive impairment, chronic drug

or alcohol use, or various other medical conditions. In some cases, incapacity

can be temporary.There are some medical conditions that commonly lead to

incapacity, such as Alzheimer’s disease. Age can also diminish a person’s ability

to care for themselves.


WHAT ARE THE DUTIES OF A GUARDIAN IN NEVADA?

The principal duties of a court-appointed guardian are to manage the welfare

and safety of the ward. Put another way, it is the guardian’s responsibility to

protect the ward and his or her assets. However, the guardian is not free to do

whatever he or she chooses. Instead, the guardian must file a petition with the

court and obtain permission, in writing, before making certain significant

decisions. For instance, the decision to withhold life-saving medical treatment

will always require a court order. As part of the court-supervision, the guardian

is also required to make annual reports to the court as to the status of the ward

and the ward’s financial affairs.

SOME ADVANTAGES OF GUARDIANSHIPS

There can be several advantages to establishing a guardianship. One of the

most important advantages is the required court supervision. Due to the

formality of the guardianship process, a guardian appointed by the court will

remain under the court’s supervision and control during the entire duration of

the guardianship. Continuous court oversight means the ward will be assured

greater protection from abreach of fiduciary duty or mismanagement of funds at

the hands of the guardian.Another more subtle benefit is that the person chosen

as guardian will have a certain level of authority which can be extremely useful

when dealing with third-parties on the ward’s behalf.


SOME DISADVANTAGES OF GUARDIANSHIPS

Although required court supervision is certainly anadvantage, that

requirementmakes guardianship a costly process. Another disadvantage is the

open and public nature of theguardianship process. The ward’s personal

information, including the circumstances of his or her disability or incapacity and

his financial affairs,will become public knowledge.

For many, this can be very humiliating and even depressing.Luckily, there are

less restrictive and more cost effective alternatives that can, and should, be

considered before establishing a guardianship.

ALTERNATIVES TO GUARDIANSHIP

Because a guardianship results in the stripping away of an individual’s ability to

make their own personal decisions, a guardianship should not be sought simply

because family members do not agree with or understand a loved-one’s

decisions. Nor should a guardianship be considered solely because of a certain

medical diagnosis. If a less restrictive option is available that will provide the

necessary protection and support, that alternative should be considered first.

A durable power of attorney is a good example of a less restrictive option.A

durable power of attorney can be drafted by an estate planning attorney to fit

the specific needs of the client. The process is much simpler and much less

expensive than a guardianship.There is a risk however because many third

parties refuse to honor a durable power of attorney. The most effective

alternative is establishing a revocable living trust.You are able to designate who


will serve as your Trustee and healthcare agent avoiding the cost and public

nature of a court supervised guardianship.

Unfortunately, if your loved one is at the point where he is no longer able to

understand a legal document, he will likely be considered incompetent and no

longer able to legally execute a revocable living trust or power of attorney. In

that situation, a court-appointed guardian may be the only remaining option.

HOW DO I KNOW IT IS TIME TO TAKE ACTION?

In many cases, the first sign of impending incapacity or mental impairment is

memory loss. For example, if your mother has started getting lost on the way

home, or your fatherfrequently leaves food cooking on the stove, it may be time

to plan on how best to care for them. Incapacity can be temporary, depending

on whether the medical condition causing it can be treated or cured.


Regardless of the cause, it is importantnot to allow the problem to reach the

point that they become a danger to themselves or others.

Undoubtedly, the best course of action would be to take care of your loved one

without the need for a guardianship, but instead with the help of a trustee. But,

if a revocable living trust was not established,a guardianshipmay be

necessary.So, discuss your situation and your concerns with a competent estate

planning attorney so you can choose the plan that is best for you and your

family.


About the Author

Bryce L. Rader

Bryce L. Rader, a shareholder of the law firm, practices primarily in the areas of estate planning, probate, trust administration following death

or disability and long term care planning, including guardianships and other Elder law matters.

With a law degree and a Master of Health Administration from the top health law program in the nation Mr. Rader began his career in public

service with the Nevada State Board of Medical Examiners. While with the Board he dealt with many complex health care issues confronting the state and assisted

in redrawing state health law. Mr. Rader next worked for the Governor’s Office, Consumer Health Assistance. As Deputy Chief Ombudsman he represented the interests of many citizens

before health care providers, state legislators and other state agencies. EDUCATION

Mr. Rader earned a bachelor’s degree in Spanish from the University of Nevada, Reno in 1996. He then went on to earn a law degree from Saint Louis University School of Law and a Master

of Health Administration from the Saint Louis University School of Public Health in 2000. He is a member of the National Academy of Estate Planning Attorneys, the National Academy of

the Elder Law Attorneys, the Academy of Special Needs Planners, the Northern Nevada Estate Planning Council, and the Washoe County Bar Association. He is also member of the Probate and Trust and Elder law sections of the state bar and a founding member of the Washoe

County Probate Bar Association.

PERSONAL As a fourth generation Nevadan Mr. Rader has an intense love for his native state and its surrounding environs. He is an avid outdoorsman who enjoys backpacking and fishing with

his wife and volunteering his time with the Boy Scouts of America.

Anderson, Dorn, & Rader, Ltd.

Legacy and Wealth Planning Attorneys

500 Damonte Ranch Parkway, Suite 860

Reno, NV 89521

Phone: (775) 823-9455

Fax: (775) 823-9456

http://www.wealth-counselors.com/estate_planning/index.php/estate-planning/

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