What You Need to Know about the Guardianship Process
Transcript:
Jonathan: Hello, I'm Jonathan Barlow, a partner attorney at Clear Counsel Law Group. In 2015, there was a lot of review in the media here, especially in the local newspaper, Las Vegas Review Journal, and other media outlets about problems with the Guardianship Court and guardianship process in Southern Nevada. A lot of this concern came with what was happening with our elderly population here? Were they being taken advantage of by guardians? Was the court properly overseeing this process? It led to a lot of concern from people who had an elderly parent living here in Nevada, who may have been subject to the Guardianship Court process. A lot of things have been happening to fix these problems.
We've received a lot of calls, and a lot questions, a lot of concern about guardianship. What it is? Why is my parent involved in Guardianship Court? Really quickly, let me tell me shortly. What is Guardianship? Guardianship occurs when an individual, usually an elderly person, but it can be anybody of any age. When an elderly person has lost capacity to the point that it's no longer safe for them to make decisions for themselves. That can be a decision related to finances, or related to their person meaning healthcare choices, living choices, things of that nature. If that person has gotten to the point where they're no longer able to take care of themselves, the Guardianship Court can appoint somebody called a guardian, to essentially step in that person's shoes, and be a guardian for them. Be able to make all decisions related to finances, health care, and so on. That's what Guardianship Court is like. Our assistant, Brian, here in the office that has heard some of this discussion and had a question for me.
Brian: Are you saying because the guardian can make all the financial decisions that he will be able to set his own rate of pay?
Jonathan: That's a good question about the guardian's pay. Everything that happens in Guardianship Court is overseen by the Guardianship Judge. That's part of the problem that occurred earlier this year. There was some question about what kind of oversight is occurring? It's been a lot better now, but yes. The Guardianship Court sets the rate of the pay. The Guardianship Court will examine that and determine whether the guardian is charged a reasonable amount for their services. A good answer to your question on that one?
Brian: You did. I have another question, if that's okay?
Jonathan: Yes, anytime.
Brian: Can a guardian amend an estate plan? If you worked with your parent, and you guys set up an estate plan, and you went back to Ohio where you live. Can a guardian take over and amend it?
Jonathan: That's a great question. The guardianship statutes in Nevada actually do allow a guardian to do something related to estate planning. Typically, for example, the guardian statutes could allow the guardian to create a will, or even a irrevocable living trust for the person under guardianship called the ward. That all requires court approval, and that would only be approved if the plan that was putting it to place any will or a trust, essentially does what would happen if they didn't have a will, which means, if they are leaving the assets to all children in equal shares.
Yes, the guardian could actually petition the court and receive approval to create a will, or a trust for the ward. Your question was about amending. They would typically not be able to amend what was been done previously by the person or guardianship.
Brian: You are saying that they would be able to make a will if there was not one previously?
Jonathan: Correct. Typically, we see that happening in Guardianship Court because the guardian recognizes that they can set up some documents that would make it easier to administer that person's estate after they pass away. They can even set it up to avoid probate, and that's why you would set up a trust to help that person's estate of with probate process. It's flexible, and guardianship can definitely do some things to help the ward be more comfortable, make sure their plans are put into place the way that they would have otherwise wanted to do.
Any other questions about guardianship, Brian?
Brian: There is a concern from a client who lived out of state that his parent would be assigned a guardian by court, and the child would never be told as such. Is that true?
Jonathan: That's not entirely true. It's partially true. Let me explain. A lot of times we have elderly individuals here in Nevada, who don't have family close by. If a concern arises with that person's well being, it's possible for somebody called a private professional guardian, or somebody else, to ask the court through a petition to be appointed as that person's guardian, without a hearing, and without notice to anybody. It's called an ex parte petition for temporary guardianship. Yes, they could be appointed.
The part that is not entirely true is that after that appointment occurs, they had to then give notice to everybody else. Everybody has to receive notice that the temporary guardianship has been put in place. At that point, it would be important for the family members to come forward and say, "Hold on. Wait a minute. We want to be involved. We want to be here taking care of Mom. We want to be the guardian." It would be important for them to come forward to do that.
Yes, and technically, they could be appointed guardian without that. Guardianship is not necessarily a bad thing. It can help elderly individuals that take care of themselves and make sure they're not subject to exploitation, or undue influence from other people. It's important for family to be involved to make sure the process goes smoothly for their parent here, who lives here in Southern Nevada. For more information about guardianships and issues that arose earlier this year with guardianship, and what you can do protect yourself against issues that might arise in guardianship, I encourage you to read our blog at Clearcounsel.com, where you can receive more information from myself and other attorneys who blog about this.
