1. Guardianship and Community: A Positive Step Forward
Procedures of
Guardianship
NRS 159
Presentation by Stanley H. Brown Jr. , Esq.
and
Shelly A. Register, JD-NCG

2. Guardianship What is a Guardianship? When is a Guardianship Necessary?
A guardianship is a special legal relationship between two people created by the court.
The guardian is given the legal authority to make decisions for another person (the Ward) who is unable to make these decisions for himself.
When is a Guardianship Necessary?
When a person is:
Unable to make decisions, manage person, medical, financial affairs
Due to incapacity as a result of disease, injury, disability, mental illness*
AND there is no other means available by which to meet those needs

3. developmental disability
A disease, injury,
developmental disability
or mental illness
is not, by itself,
sufficient reason
to declare someone incapacitated.

4. Civil Rights and Due Process
Civil Rights of the Individual
Constitutional Protections /Rights affected:
- The Right to Determine own residence
- The Right to Consent or with consent to medical treatment.
- The Right to Possess a Driver’s License
- The Right to manage, buy or sell property or enter into contracts
- The Right to Marry
- The Right to Possess Firearms (NRS )
- The Right to Vote (must be restricted specifically per NRS )
Due Process must be afforded before the Civil Rights of the Individual are affected.

5. GUARDIANSHIP as a Last Resort
All Alternatives to Guardians should be considered before seeking a Guardianship:
Case/Care Management
Trust
Joint Property Ownership
Joint Bank Accounts
Community Agencies/Services
Durable Power of Attorney for General/Financial
Durable Power of Attorney for Health Care
SSA Representative Payee, VA Fiduciary or other agency appointed fiduciary (finding of need for assistance or “rating”)
Bill payee/money management assistance

6. Power of Attorney (POA, DPOA, DPOAHC)
An instrument executed by an adult, who has capacity, authorizing another person to act as his or her agent.
NRS 162A Power of Attorney
Why would you need a Guardianship if you have a power of attorney?
Does not provide all powers needed, particularly, if a person needs to be placed in a facility against their wishes, which is not generally in a POA.

7. Other forms of Advanced Directives
LIVING WILL / Advanced Directive to Physicians A document that allows an adult, with capacity, to instruct physicians regarding their wishes about end of life treatment (i.e. artificial hydration/nutrition, mechanical ventilation, resuscitation).
POLST - Physician’s Order for Life Sustaining Treatment (NRS through )
POLST forms from other states generally in compliance with NV statute are considered effective in Nevada.

8. But when all else fails,
Guardianships are necessary to protect the vulnerable adult.
Minor Guardianship are currently covered under NRS 159, but there are differences and through the Supreme Court Commission, there is discussion that will propose to separate the statutes for Adult and Minor Guardianship into separate provisions.

9. Elder/Vulnerable Person Abuse
Elder abuse is any form of mistreatment that results in harm or loss to an older person. It is generally divided into the following categories:
Physical abuse is physical force that results in bodily injury, pain, or impairment. It includes assault, battery, and inappropriate restraint.
Sexual abuse is non-consensual sexual contact of any kind with an older person.
Domestic violence is an escalating pattern of violence by an intimate partner where the violence is used to exercise power and control.
Psychological abuse is the willful infliction of mental or emotional anguish by threat, humiliation, or other verbal or nonverbal conduct.
Financial abuse is the illegal or improper use of an older person's funds, property, or resources.
Neglect is the failure of a caregiver to fulfill his or her care giving responsibilities. Self-neglect is failure to provide for one's own essential needs.

10. Due Process Protections
Notice –
Notice v. Confidentiality
Transparency
Right to Counsel
Attorney vs. Guardian ad Litem
Right to a Hearing
Evidentiary hearing

11. TYPES OF GUARDIANSHIPS
GUARDIAN OF PERSON
GUARDIAN OF ESTATE
GUARDIAN OF PERSON AND ESTATE
SPECIAL GUARDIANSHIP OF PERSON OF LIMITED CAPACITY
THE KIND OF ASSISTANCE THAT THE PERSON NEEDS DETERMINES THE KIND OF GUARDIANSHIP

12. Types of Guardianship, Cont’d
Variations/Issues:
General, not Permanent
Temporary/Emergency
Co-Guardianships
Summary Administration

13. GUARDIAN OF PERSON
A guardian of the person is responsible for managing the everyday and long-term personal needs of the ward.
This includes:
safe and affordable living arrangements
medical decisions and consents
personal care
meeting all basic needs to ensure the highest quality of life within the limitations of the available services and resources

14. GUARDIAN OF ESTATE
A guardian of the estate is responsible for managing the ward's personal finances and assets.
Personal property
Real property/real estate
Bank and brokerage accounts
Bill paying
A Bond, an insurance policy, is required under NRS to protect the assets of the estate but may be waived by the court. The amount is set by the judge.

15. TEMPORARY GUARDIANSHIP
This action is reserved for critical situations when there is imminent danger to the person or property of the individual.
Temporary guardianship gives the guardian the power to act for a temporary period of time.
The temporary guardian's powers are limited to those necessary to address the emergency.

16. Basic Terminology Guardianship Ward – Legal term Guardian Competency
Trend: Person under Guardianship
Guardian
Competency
Incompetency
Limited Capacity

17. Qualifications to Serve as a Guardian
The guardian may be a family member, a close friend or a professional guardian (an unrelated person who has received specialized training).
NRS :
Nevada resident, or have a Registered Agent in Nevada for out of state guardian petitioners
Adult
A felony conviction may preclude someone from being a
guardian.
Private Professional Guardians must be certified and licensed, if they are appointed for more than 2 guardianship
Ultimately, the judge appoints the guardian of a ward.

18. GENERAL GUARDIANSHIP Process & Steps
Petition
Set for hearing
Citation
Notice
Service/Due Process
Proof of Service
Request for Submission
Hearing
Order
Letters of Guardianship - An official document issued by the County Clerk's office which is written evidence of the appointment of a guardian and the authority of the guardian to act for the ward.
Notice of Entry of Order

19. EMERGENCY GUARDIANSHIP Process & Steps
Criteria for temporary (emergency) guardianship are defined by state statute for specific purposes. They are only granted in special circumstances of immediate harm or danger to the ward and/or their assets.
Petition
Request for Submission
Order
Letters
Notice of Entry of Order
Set for extension hearing
Citation, Notice of Hearing
Service/Due Process
Proof of Service
Hearing/Order

20. WHO RECEIVES NOTICE OF GUARDIANSHIP PROCEEDINGS?
By Law the following individuals or entities must receive legal notice of guardianship proceedings
The proposed ward
Spouse
Relatives w/in the second degree of consanguinity and step
Parents
Grandparents
Siblings
Children
Grandchildren
Care facility or hospital
Nevada Medicaid
Veteran’s Affairs (for veterans only)
Person(s) designated as Successor Trustees, Attorneys-in-fact
Persons having significant involvement in proposed ward’s life/interested parties

21. LEGAL DOCUMENTS
Petition for Guardianship - The petition also requires:
a)Physician Certificate: Documents from a physician or approved party for the Temporary and/or Permanent guardianship explaining what medical reasons there are that would explain why a guardianship is necessary as outlined by statute usually accompanied with supporting documentation such as medical records.
b) Physician Assessment: An assessment by a physician explaining the limitations of the proposed ward as outlined by statute for a permanent guardianship.
c) If unable to obtain either of these documents, an affidavit of the petitioner is required to explain why the certificate is not obtainable.

22. Legal Documents, cont’d
Order Appointing Guardian
Letters of Guardianship
Bond - A bond is required even, for a family member for estates, that have assets. When ordered by the judge, the bond needs to be obtained before the Letters of Guardianship can be filed.
- The cost of the bond as well as any expenses and fees occurred from establishing and maintaining the guardianship, can be paid from the assets of the ward with court approval.
- Blocked accounts can be ordered to reduce costs to the estate

23. Other Required Filings
Inventory and Record of Value
Accounting
Report of Person
Court appearances to sell real property, to approve investments, to move a Ward out of state, to change estate plans, and other issues as enumerated in NRS 159

24. Related Statutes NRS 160 Veterans’ Guardianship (Uniform Act)
NRS 162A Power of Attorney
162A.250 may nominate a guardian of estate in the POA and appointment of a guardian terminates the POA.
162A.800 may nominate a guardian of person in the POA and appointment of guardian terminates the POA but guardian must follow wishes for medical and end of life care.
NRS 253 Public Administration and Guardians
NRS to Uniform Act on Rights of the Terminally Ill.
Titled in statute as Withholding or Withdrawal of Life-Sustaining Treatment
refers to Judicial Appointment of a guardian authorized to make decisions regarding the withholding or withdrawal of life sustaining treatment.
NRS NRS to Physician’s Order for Life Sustaining Treatment (POLST)

25. AB 325 Changes to NRS 159 AB 325 Sections 50.2 –
50.2 adds provision to 159 requiring nominated person or relative be given preference and allowing out of state person to be appointed guardian. (codifies and clarifies current practice except for the out of state provisions.)
50.3 amends with new definition for “private professional guardian”.
51.1 – 51.3 amends adding requirements for private professional guardians

26. AB 325 , cont’d
51.5 amends relating to minor guardianships and preferences to serve as guardian.
51.7 amends regarding removal of guardian who no longer qualifies.
51.9 amends regarding petitions filed under the UAGGPJA to appoint a guardian qualified under new statute.
52.1 amends add sections 41 and 48 regarding public records
52.3 amends regarding definition of private professional guardian.
52.5 amends 432B.4665 regarding minor guardianships
52.7 repeals
53 Effective date established: Upon adoption of regulations or January 1, 2016.
Section 36.5 states “The provisions of Section regarding summary administration do not apply to a private professional guardian.”

27. Procedures of Guardianship
Questions?