What We Do
The Public Guardian office’s caseload fluctuates and has increased steadily with the area’s population growth. As of August 2005, staff oversee the affairs of more than 500 guardianship wards. The office also has more than a hundered clients enrolled in its voluntary 60 + Representative Payeeship Program.
Referrals generally are received from such sources in the community as family members or neighbors, hospitals, banks, and local law enforcement or senior service agencies. The office receives hundreds of referrals each year. The majority of Public Guardian wards have no financial resources other than Medicaid and County assistance. About 25 percent of the guardianship cases the office receives involve wards who come to the attention of authorities because of financial exploitation and/or physical abuse.
The Public Guardian is court appointed to provide guardianship services per Nevada Revised Statues, Section 159. Referrals to the office are required and evaluated for appropriateness prior to acceptance into the programs. The office’s services may include annual financial and medical status reports to the court, money management, personal services management and 24-hour emergency response services. The office is utilized when:
· There is no family.
· Family members are ill, elderly or other circumstances prevent their effectiveness as guardian.
· Friends or family have exploited or neglected the person and would not be suitable to serve.
· Family members live in other states and cannot meet the statutory requirements.
Guardianship Determination
The court’s decision to grant guardianship of an adult ward is generally based on one of two types of findings:
- A finding of incompetency applies to adults who, by reason of mental illness, mental deficiency, or advanced age are at risk to take care of themselves or their property. A finding of incompetency is determined by the court based on a review of medical records and written evaluation from a board-certified psychiartrist or physician.
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A finding of limited capacity includes an adult who is able to make independently some, but not all, of the decisions necessary for his or her own care and management of property. This determination is made by the court based on a review of medical records and psychiatric evaluation.
Under state law, Nevada Revised Statutes 159, the court can appoint a temporary guardian for a minor ward who is unable to respond to substantial or immediate risk of physical harm or to the need for immediate medical attention.
The parents of a minor, if qualified or suitable, are preferred over all others for the appointment as guardian for the minor. The court’s considerations include:
- Which parent has physical custody of the minor.
- Ability of parents to provide for the basic needs of the child, including food, shelter, clothing and medical care.
- Whether parents have engaged the recent, habitual use of alcohol or drugs.
- Whether the parents have been convicted of a crime of moral turpitude, domestic violence or a crime involving the exploitation of a child.
- If a minor is 14 years of age or older, the court will consider the minor’s request for the appointment of a guardian.
- Preferences for proposed guardianship of a ward are considered by the court in the following order:
- Spouse
- Adult child
- Parent
- Adult sibling
- Grandparent or adult grandchild
- Uncle, aunt, adult niece or adult nephew.
- The court also may consider the appointment of an appropriate, interested person to serve as a minor’s guardian.
Guardianship Qualifications/Becoming a Guardian
- Any person the court finds suitable to serve as guardian.
- Must be competent.
- Must be a Nevada resident or have engaged a Nevada resident to serve as co-guardian.
A Person Who Is Not Suitable Is:
- A minor
- A felon convicted of a certain crimes involving abuse or neglect or financial crimes.
- A person judicially determined to have committed abuse, neglect or exploitation of another person.
- A person suspected for misconduct or disbarred from the practice of law (during the period of suspension or disbarment only.)
The court will consider a written request or preference executed by the ward prior to his or her becoming incompetent.
- Nomination of a guardian in a Will or other written document executed by the proposed ward, a spouse or parent of a minor.
- Any request or appointment as guardian for a minor 14 years of age or older made by the minor.
- The relationship by blood or marriage of the proposed guardian to the proposed ward.
Types of Guardianship
The Guardian of the Person is responsible for proper care, maintenance, education and support of the ward. The guardian is responsible for personal and medical decisions only.
The Guardian of Estate is responsible to protect, preserve, manage and dispose of the estate in the ward’s best interest. The guardian is responsible for financial decisions only.
Legal Duties and Responsibilities of Guardian of Estate Only are outlined in state law, under Nevada Revised Statues. These responsibilities may include, but are not limited to: the sale of a ward’s real or personal property, managing all income, filing annual accountings with the court, closing bank accounts, selling stock.
The guardian often serves for both the person and the estate. These duties include estate management, medical and social decisions. Legal Duties and Responsibilities of Guardian of Person and Estate are outlined in state law, under Nevada Revised Statue 159.
Under Nevada state law, a judge may grant an emergency order of temporary guardianship when the petitioner can show that:
- Proposed ward faces a substantial and immediate risk of financial loss or physical harm or needs immediate medical attention;
- Proposed ward lacks capacity to respond to the risk of loss or harm or to obtain the necessary medical attention;
- Petitioner has tried in good faith to notify the persons entitled to notice under NRS 159.047.
The following people or entities are entitled to receive notice of all court proceedings:
- The proposed ward. At the time the court is petitioned to consider guardianship, the citation to the proposed ward must state:
- The ward’s rights may be affected as outlined in the petition.
- The ward has a right to appear at the hearing and oppose.
- The ward has a right to be represented by an attorney.
- Spouse and adult children (if none – parents, brothers, sisters of ward.)
- Administrator of an institution, nursing facility or any person having the care, custody and control of the proposed ward.
- The Veterans Administration if benefits are paid to the proposed ward.
- If the proposed ward is a minor, the following individuals are entitled to receive legal notices:
- Parents
- Person or institution having care, control and custody of the minor
- The minor – if he or she is 14 years of age or older
Guardianship Management & Legal Duties
State law requires the Public Guardian to manage those resources to help care for the person. The Public Guardian Office is entitled under state law to seek reasonable compensation for services provided to wards if the estate has financial resources, however, eighty percent of all cases managed are pro bono. The agency submits fees for approval to the court as part of annual case accountings. The Public Guardian’s annual fee schedule is submitted to the Clark County Commission for approval each year.
General Guardianship
In a general guardianship, annual written accountings must be provided to the court if the value of the ward’s assets exceeds $10,000. An accounting must be submitted to the court when a petition is filed to terminate or transfer a guardianship.
In a summary guardianship, the court may dispense with annual accountings if the value of the guardianship does not exceed $10,000. An accounting must be submitted to the court when a petition is filed to terminate or reassign guardianship.
Legal duties and responsibilities for Guardian of the Person and Estate include but are not limited to:
- Prepare a plan to address all medical, social, financial needs and revise as needed.
- Budgets should maximize benefits for a ward. Guardians should keep their personal funds completely separate from their wards.
- Provide or arrange to supply ward with necessities: food, clothing, shelter, incidentals. ( A guardian is not required to incur expenses for the benefit of the ward except to the extent that the ward’s estate will allow.)
- Examine and verify validity of all requests for payments on ward’s behalf.
- Assure that the ward is given the opportunity to be trained, educated and learn a trade if applicable.
- Meaningful visits with a ward of the peson should be no less than one time per month.
- Advocate on behalf of the ward, ensure the ward’s civil rights are protected whenever possible and utilize substituted judgment in decision making, which requires/encourages guardians to attempt to make decisions that wards would make for themselves if they were competent to do so.
- Authorize/give consent for medical and dental procedures when appropriate. The guardian should utilize a decision checklist to assist with making routine decisions. The guardian may seek a second medical opinion for invasive treatments or surgeries.
- Court authorization is required for some procedures, including but not limited to, experimental medical treatment, sterilization, amputations and other invasive surgical procedures.
- Court permission must be sought to change the state of residence.
A guardian may, without prior approval of the court, invest the ward’s funds in the following:
Federal deposit Insurance Corporation (FDIC) of Federal Savings and Loan Insurance Corporation (FSLIC) insured savings accounts in any bank or savings and loan institution.
- Interest-bearing obligations of or fully guaranteed by the United States.
- Interest-bearing obligations of the United State Postal Services.
- Interest-bearing obligations of any county, city, or school district of this state.
A Guardian of the Person and Estate must seek court permission for the following:
- To sell, lease, place into trust or surrender any property of the ward.
- To invest the property of the ward.
- To continue the business of the ward.
- To borrow money for the ward.
- To enter into contracts on the ward’s behalf.
- To make gifts from the ward’s estate or make expenditures for ward’s relatives.
- To exchange or partition ward’s property.
- To pay attorney’s fees.
Inventory and Accounting
- A written inventory of the ward’s assets/property must be submitted to the court. The inventory must be amended if additional assets are discovered after the initial inventory is filed. This report sh
ould be filed within 30 days of locating additional assets.
- Complete and accurate financial records must be kept including receipts for expenditures, source of receipts and purpose of disbursements.
- Annual written accountings must be provided to the court within 60 days after the anniversary date of guardianship appointment.
- Reports may be required by the court at different intervals or at any time for a variety of reasons (status checks, summary proceedings etc.)
- Copies of all reports should be given to co-guardians and attorneys involved.
- Protect, preserve and manage all assets belonging to ward. A plan should be prepared to address the needs of the ward.
- Budgets should be prepared to maximize benefits for the ward.
- To use the assets for the proper care, maintenance, education and support of the ward. (A guardian is not required to incur expenses for the benefit of the ward except to the extent that the ward’s estate will allow. Guardians must keep their personal funds completely separate from their wards.
- Examine and verify validity of all requests for payments.
- Identify and apply for benefits as found appropriate on behalf of the ward.
Investments
A guardian may, without prior approval of the court, invest the ward’s funds in the following:
Federal Deposit Insurance Corporation (FDIC) or Federal Savings and Loan Insurance Corporation (FSLIC) insured savings accounts in any bank or savings and loan institution.
- Interest-bearing obligations of or fully guaranteed by the United States.
- Interest-bearing obligations of the United State Postal Services.
- Interest-bearing obligations of any county, city, or school district of this state.
A Guardian of the Estate must seek court permission for the following:
- To sell, lease, place into trust or surrender any property of the ward.
- To invest the property of the ward.
- To continue the business of the ward.
- To borrow money for the ward.
- To enter into contracts on the ward’s behalf.
- To make gifts from the ward’s estate or make expenditures for ward’s relatives.
- To exchange or partition ward’s property.
- To pay attorney’s fees.
Inventory and Accounting
- A written inventory of the ward’s assets/property must be submitted to the court. The inventory must be amended if additional assets are discovered after the initial inventory is filed. This report should be filed within 30 days of locating additional assets.
- Complete and accurate financial records must be kept including receipts for expenditures, source of receipts and purpose of disbursements.
- Annual written accountings must be provided to the court within 60 days after the anniversary date of guardianship appointment if no under Summary Administration.
- Reports may be required by the court at different intervals or at any time for a variety of reasons (status checks, summary proceedings etc.)
- Copies of all reports should be given to co-guardians, attorneys involved, the ward and those entitled to notice under state law.
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