In recent years, particularly around 2015, there was significant media attention on the guardianship process in Southern Nevada. Concerns were raised about the potential exploitation of the elderly by guardians and whether the court was effectively overseeing this critical process. This awareness led to numerous inquiries from individuals with elderly parents living in Nevada concerning the guardianship process and its implications.
What is Guardianship?
Guardianship is a legal arrangement that becomes necessary when an individual, often an elderly person, loses the capacity to make safe and sound decisions for themselves. This loss of capacity might encompass financial matters or personal care decisions like healthcare and living arrangements. When a situation like this comes up, the court can appoint a guardian. This guardian steps into the shoes of the individual (referred to as the ward) to make all necessary decisions on their behalf, be it financial, healthcare-related, or otherwise. Guardianship is handled by the Eight Judicial District Court.
Guardianship Court Oversight and Guardian’s Pay
The role of the guardianship court is crucial for overseeing the entire process. A critical aspect of this oversight involves setting the rate of pay for the guardian. It ensures that the guardian charges a reasonable amount for their services, safeguarding the financial interests of the ward.
Amending Estate Plans under Guardianship
An interesting aspect of guardianship in Nevada is its interaction with estate planning. Under these guardianship statutes, a guardian is permitted to engage in certain estate planning activities for the ward. This can include creating a will or an irrevocable living trust, subject to court approval. These actions are generally approved if they align with what would likely occur in the absence of a will, such as equally distributing assets among all children. However, guardians typically cannot amend an existing estate plan set up by the ward prior to guardianship.
Setting up Wills and Trusts
In cases where no prior will exists, a guardian may petition the court to establish one or even set up a trust. This is often done to ease the administration of the ward’s estate after their passing and to potentially avoid the probate process. Such actions are taken to ensure that the ward’s estate is managed and distributed in a manner that aligns with their likely wishes.
Notification to Family Members in Guardianship Cases
A common concern is the assignment of a guardian by the court without informing the family. While it’s possible for a guardian to be appointed without immediate family notification through an ex parte petition for temporary guardianship, this is not the end of the story. Following such an appointment, notice must be given to all relevant parties. This notification is critical as it allows family members to step forward, participate in the process, and if desired, seek to become the guardian themselves.
Guardianship: A Protective Measure, Not a Punitive One
It’s important to understand that guardianship is not inherently negative. It’s designed to protect individuals who can no longer care for themselves and are at risk of exploitation or undue influence. Family involvement is often essential to ensure that the process is smooth and that the best interests of the ward are always at the forefront. For those seeking more information on guardianship, its challenges, and protective measures, Clear Counsel Law Group offers extensive resources and insights from its experienced attorneys.