Guardianships are legal relationships created by courts when an individual is incapable of providing for his or her own needs, whether physical, mental, or legal. Such situations arise when a person becomes mentally incapacitated through a condition like Alzheimer’s or dementia or when the parents of a child die or become mentally incapacitated themselves. In either case a guardian has the authority to make legal decisions for the person (called the “ward). Such decisions may include medical treatment, long-term care, management of the ward’s assets, and other significant decisions related to the ward’s mental physical, legal, and financial well being.
Even though we’re all going to live forever and never get sick (or at least that’s what we tell ourselves), because contested guardianship proceedings can be extremely expensive, planning for a guardianship (either for yourself or your children) and taking steps to avoid them where ever possible is an important consideration for all of us.
Nevada law provides an extensive procedure for the creation of a guardianship (whether of an adult or child) which requires petitions to be filed with the courts, notices to be given to family members, court appearances, and additional orders, notices, etc. to be filed with the court. Although it is not possible to short circuit all of the requirements for creating a guardianship, it is possible to work around most of them.
The first thing you can do is nominate the person you want to have as the guardian. Nominating a guardian will help to prevent some of the legal wrangling that can arise in guardianship proceedings where various individuals think they are best suited to be guardian.
You can also create a financial and/or healthcare power of attorney document that will give your chosen representative the authority (should you become incapacitated or incompetent) to make financial and medical decisions for you without having them appointed as your guardian, lessening the need for the court to be involved in a formal guardianship proceeding.
Keep in mind, however, that creating a power of attorney in someone will grant them considerable control over your finances and/or healthcare decisions and so should only be granted to someone you have absolute confidence and trust in. Speaking of trust, creating a complete trust to hold all of your assets is also an important way to avoid guardianship proceedings if you become unable, for any reason, to manage your finances.
Unfortunately, no one needs to plan for a guardianship (or avoiding a guardianship) until they need one and by then it’s too late to do anything about it because you can’t create a guardianship nomination, trust, or power of attorney when you’re incompetent, unconscious, or deceased. Because there’s no way to know what the future brings, it’s better to plan and prepare now than to wait until the need actually arises.
A competent attorney can assist you in making all the necessary arrangements to plan for and avoid if possible, a guardianship for yourself and, if you have minor children, appointment of a guardian for them in the event you become unable to care for them.
Clifford Gravett is a local attorney with the Virgin Valley law firm of Bingham Snow & Caldwell located in Mesquite. The firm serves clients in Nevada, Arizona, and Utah (702-346-7300 / www.binghamsnow.com). Is there a topic you’d like to see discussed in a future article? E-mail him at firstname.lastname@example.org.