Special Needs & Guardianship
Guardianship is a court proceeding to appoint a responsible person for someone who can no longer make financial or healthcare decisions on their own. This is an option of last resort if there is no financial or healthcare power of attorney in place or for emergency situations.
What to Expect
Guardianship has three main phases:
1. Filing and Notice
Once it is determined that guardianship is appropriate (because there is no other alternative such as a power of attorney), paperwork is filed with the Court requesting appointment of a guardian. This includes a special form that the protected person’s doctor must complete before a guardianship is filed.
The guardian must meet certain qualifications, such as no felonies or recent bankruptcies, and no allegations of abuse or neglect of a child or adult.
After the paperwork is filed, the protected person (the person over whom guardianship is sought) and their extended family must be notified about the case, with an opportunity to appear in court if they object.
Further, in adult guardianships in Clark County, Nevada, a Legal Aid attorney will be appointed for the protected person, free of charge. The Legal Aid attorney will speak to the protected person (if possible) and let the Court know if they want a guardian appointed.
2. Appointment
If everyone agrees to the guardianship, and the Court finds that a guardianship is necessary to make financial and/or healthcare decisions, the guardian will be appointed. He or she will have to take an oath to do certain things, including putting the protected person’s interests first and notifying the Court if certain circumstances change. Once appointed, the guardian may have to open special guardianship bank accounts as well.
3. Annual Reports
Annually, the Guardian will report certain information to the Court, including the health status of the protected person, and, if the protected person has more than $10,000, a complete accounting with receipts of all money spent by the guardian for the protected person. If the protected person gets better and no longer needs the guardianship, or dies, the guardian must make a final accounting and request to the Court to close the guardianship case.
FAQs
What if the protected person does not want a guardianship?
The Protected Person will be represented in Court by a Legal Aid attorney who will notify the Court of his or her wishes. If the physician agrees that the person can make decisions for himself or herself (even if they are not the best decisions), a guardianship may not be granted. The purpose of a guardianship is to appoint someone to act for someone who cannot; the purpose of guardianship is not to force decisions on the protected person.
Sometimes, a person may not want a guardian, but the reality of their mental condition is that they are a danger to themselves or others or are vulnerable to exploitation. If the physician agrees, the guardianship may be granted.
How long does it take to get appointed guardian?
It takes about four weeks from the date we file the paperwork with the Court, assuming there are no disagreements among the family about who should be appointed. Where the family disagrees, the Court will set a trial to determine who is the best suited to be guardian. Depending on scheduling, it can take several months to get the guardianship under these circumstances.
Does the guardian get paid?
Usually not, and if he or she does get paid, it must be approved by the Court before any money is paid.
Does the guardian have to live in Las Vegas?
No. The guardian must appoint a registered agent in Nevada to accept notices from the Court, but otherwise need not live here to be appointed.
What if the protected person is fine when on medication, but often stops taking the medication and needs help?
This is not a good time to use a guardianship. Instead, when the person is well, they should sign a power of attorney for financial and healthcare decisions with someone they trust to act for them when they go off medication.
FEES
Guardianship cases are billed on an hourly basis. The fee is $300 per hour for attorneys and $150 per hour for paralegals.
If the case is not contested, usually a guardianship case ranges from $1,500 to $3,000 for appointment, and $300-$600 per year for annual reporting.
These fees must be paid by the guardian, and then we can request reimbursement from the protected person’s funds.