Need for Guardianship
Guardianship may be needed if someone cannot take care of him or herself and/or his or her property. Unfortunately, due to lack of foresight or lack of advice, many individuals fail to make any provision as to how they or their property should be managed in the event they should lose their mental capacity. Thus the need for guardianship.
Please note that the test is whether the person has the capacity to make responsible decisions, not whether the person’s decisions are in fact responsible. Everyone, including older persons, have the right to behave foolishly or make irrational decisions without fear that he or she will be declared incapacitated and fall under the control of a guardian. Furthermore, just because an individual is old, frail, and chronically ill does not in itself mean that the individual is incapacitated and in need of a guardian.
There are three types of guardianship: (1) Guardianship of the Person, (2) Guardianship of the Estate, (3) Guardianship of the Person and the Estate. A Guardian of the Person only has authority to make personal and medical decisions. A Guardian of the Estate has the authority to make financial decisions only. In a Guardianship of the Person and the Estate the guardian has authority over both financial and personal/medical decisions. The courts will remove only those rights that the proposed person under guardianship is incapable of handling.
Finding a Guardian
In the state of Nevada, every county has an appointed public guardian. The public guardian is available when no family members or friends are able, willing or appropriate to serve on behalf of the alleged incapacitated person.
For information about your local public guardian, contact the Nevada Aging and Disability Services Division at (775) 687-4210.
Complete a Petition for Appointment of Guardianship. Petition should provide:
- Address, birthday, name of proposed guardian and ward;
- Relationship between the ward and proposed guardian;
- How long the ward has been with the guardian;
- Detailed explanation for why the guardianship is needed;
- State ward lives in;
- Whether the ward has a revocable/living trust, durable power of attorney or nomination of guardian;
- Names and addresses of all second degree relatives which are:
- Siblings (includes half-siblings but NOT step-siblings). Note that when a sibling is a minor, the minor’s guardian must receive notice and be listed on the petition.
- If the ward has an estate, a detailed description of the assets.
- Petitioner MUST state whether he/she has ever been convicted of a felony, been disbarred/suspended from a field involving management of money, or been convicted or plead guilty/no contest to abuse or neglect (even if the answer is no).
File the completed documents along with copies of the ward’s and the petitioners’ identifications with your local court.
- In many counties, there is no filing fee for filing a guardianship unless the proposed ward has an estate of $20,000 or more.
- If the ward’s estate is worth more than $20,000 but you cannot afford the filing fee, you can apply for a fee waiver by obtaining a fee waiver packet from your self-help center and submitting it.
You MUST file a physician’s certificate describing why the ward needs a guardian.
- The certificate must describe the ward’s limitations and how those limitations affect the ward’s ability to care for his or herself.
- The certificate must be completed by a professional who is or has treated the ward.
Serve all second degree relatives with a copy of the Petition and Citation to Appear. Relatives that must be served include:
- Siblings or the guardian of minor siblings (includes half-siblings)
- If there are no surviving relatives to serve, the Public Guardian’s Office must be served.
Service can be completed by:
- Personal service at least 10 days before the hearing. Must file an Affidavit of Service from the third party serving.
- Certified mail sent at least 20 days before the hearing. Must file a copy of the certified mailing receipts and the return green card or it can be brought to the hearing.
- Relatives can be serviced by publication but only if it is approved by the court. If you will need to serve by publication plan ahead! The hearing should be set at least two months in advance because it takes a while to complete the publication.
To serve a relative by publication, the petitioner must mail the petition and citation to the relative’s last known address via certified mail, then submit to the judge:
- An Affidavit for Service by Publication stating the last known address, the date certified mailing sent to the last known address, and the date the party was last known to reside there.
- An Affidavit of Due Diligence describing at least two different things that you did to try to locate the person such as going to the DMV to check records or contact the power or water companies to see if they have a record.
- And then submit and obtain:
- A signed Order for Service by Publication.
Afterwards, the publication must run for three consecutive weeks prior to the hearing and the final ad must run at least 10 days before the hearing. Multiple people can be noticed through a single publication but a separate Affidavit of Due Diligence will need to be submitted for each person. Once the Order for Service by Publication is signed by the judge, the order must be filed at the Clerk’s Office and taken (along with the Citation to Appear and Show Cause) to the newspaper of your choice. Select a newspaper in the city where the relative was last known to live.
Both the petitioner and the ward must appear at the hearing. The ward must appear in court unless you can provide a certificate from the ward’s doctor stating why the ward cannot be present. The court will ask the ward if he or she consents to the guardianship or if he or she wants someone to represent him or her in the guardianship proceedings.
In order to grant the guardianship, the court must find that the ward is “incompetent,” or unable to care for him/herself, and that the petitioner is a right person to be guardian. Petitioner will need a completed Order Appointing Guardian and completed Letters of Guardianship.
If the ward or any family members contest the guardianship, a trial may be scheduled.
If the guardianship is granted, the Order must be filed at the Clerk’s Office, the guardians will be sworn in, and the Letters of Guardianship will be stamped.