About Nevada Guardianship
The Nevada Guardianship Association (NvGA) is an affiliate of the National Guardianship Association (NGA).
I am the Guardian. What now?
I am the guardian. What do I do now???
The following are excerpts from the Washoe County Public Guardian’s training program designed for training of new non-professional guardians. For more information on training programs and guardian education see our EVENTS page.
Know your authority - What Type of Guardianship do you have?
The court’s order and your Letters of Guardianship describe whether you are guardian of the person, of the estate or both.
Who do I inform of the guardianship?
You may need to present a copy of your Letters of Guardianship and your Order appointing Guardian to establish your authority to act on the ward’s behalf.
Post Master (change of address requests)
Relevant professionals (attorneys, CPA, investment advisor, etc.)
Some entities will require that the guardian send “certified” copies of the order appointing guardian, letters of guardianship and other legal documents. The office of the Court Clerk certifies your Order and Letters of Guardianship. There is a nominal fee for this service.
Who makes the decisions?
The guardian(s) is the person legally responsible for making and rendering decisions.
The guardian may consult with professionals, friends, family members, clergy but ultimately the decision must be made by the guardian.
The guardian will need to make a decision that is solely for the interest of the ward.
The guardian cannot designate this legal authority to another.
Decision Making - How do I make an important decision for someone else?
Substituted judgment-what the person may have wanted when competent and/or what is consistent with decisions they have made throughout their lifetime
Do they have previously recorded written wishes (advanced directive, living will, etc) to guide you?
Best interest-what is in the person’s best interest at this time
Best interest is used when there is not the information needed to make a decision using substituted judgment.
Rights of the individual
While the guardian has the legal responsibility and authority to make decisions, to the extent possible, the individual should be given the ability to participate in making decisions about their life.
How much participation should be based on the individual needs of the ward, their diagnosis and ability to communicate their wants, the reasonableness/safety of their wishes.
Develop a record keeping system for important documents that pertain to the ward
Should include: physicians, medical records, insurance, social security, final arrangement plans, income, tax, wills, trusts, advanced directives to physicians
Keep a written record of actions taken by guardian
Guardian should secure such documents for safekeeping. Guardianship authority allows you to request copies from the issuing entities.
Medical Decisions and Informed Consent
Informed consent in medicine is the process whereby the physician informs the patient about the options for the diagnosis and treatment of the patient's illness. In addition, the risks of the procedure as well as the benefits are described to the patient so that the patient can make a rational decision regarding what he/she wants to be done.
When an individual has a guardian the responsibility of giving informed consent becomes the guardians as they are the legally appointed decision maker.
In the event of an emergency, you will need to be available 24/7 for medical decision making.
Guardians of the person are entitled to access medical records. You will need to provide a copy of your letters of guardianship to establish your authority.
It is often helpful to review the records and consult with a medical professional regarding the diagnoses and condition.
How do I choose where my ward should live?
Some of the things you need to consider are:
Care needs (ambulating, toileting, medications, supervision)
Financial ability to pay
What kind of living arrangements are available in the community?
Memory Care Residence
Skilled nursing facility
Family members and/or guardians are not obligated to pay for the living expenses of their loved one.
Moving from home to care setting
During the course of a guardianship it is often necessary to move the person into a setting where they can receive care. This can be very painful and challenging for that person. You will want to give consideration to how to conduct the move in the most sensitive manner possible.
Obtain the assistance of trusted family or friends
Speak with the individual’s treating physician
Develop a transition plan with the new care facility
Obtain professional assistance i.e. social worker/geriatric care manager if necessary
Bring in belongings (before the person arrives) to personalize the new living environment
Discharge Planning from a medical facility
Medical facilities (hospitals, nursing homes) have licensing requirements which require that individuals who have been in their care be discharged to safe and appropriate environment.
The guardian should work in conjunction with the facility to identify and consent to appropriate placement.
The guardian should not be forced to consent to a discharge that is not safe or appropriate.
Many individuals with medical and cognitive impairments take medications; often multiple pills.
Familiarize yourself with the medications, their purposes and the effects.
Discuss medications with prescribing physician, ask questions.
Consider having a specialized pharmacist review the medications for interactions
Guardianship of Person -Court Reporting Requirement
The guardian of the person is obligated to file an Annual Report with the court on a yearly basis. This is due to the court no later than 60 days from the anniversary of the appointment as guardian.
Obtain forms for report from the Self Help Center or your attorney.
Guardianship of Estate- Court Reporting Requirements
Filed Inventory and Record of Value showing all assets owned by the person within 60 days of appointment as guardian
Annual financial accounting (over $5,000 in assets)-court must formally dismiss accountings, Summary Guardianship
Managing the Money - Where do I start?
Locate all assets (property, bank accounts, cash, investment accounts, personal property, real estate, etc)
Determine all income sources
Determine all oustanding debts
Secure assets and income
Guardian of the estate is required to file an inventory of financial assets with the court.
Day to Day $ Management
Set up a separate bank account (take Letters of Guardianship)
“The guardianship of…..”, special designation that banks can put on account
Account remains in the ward’s SSN#
Keep the funds of the guardianship separate
DO NOT CO-MINGLE FUNDS!!!!
Develop a traceable bill paying system (ledger system, computer financial management program)
Keep written and legible records of expenses paid on behalf of a ward.
Track and record all income received
Keep all receipts for expenses paid
Keep copies of cancelled checks, statements, invoices and bills.
Develop a budget/spending plan
Monthly expenses may include:
Professional services (accountant, attorney, etc)
Insurance (medical, auto, home)
May include but not limited too:
Social Security (Retirement, Disability, Supplemental)
Investment (dividends, interest, royalties)
Federal Income Tax
The individual for whom you are guardian may have a tax filing requirement.
Seek the assistance of a certified professional tax advisor.
Investments cannot be liquidated (aka cashed out) without court approval
Investments cannot be made or altered without court approval
SEEK LEGAL ADVICE AND GUIDANCE FROM THE COURT BEFORE ACTING ON INVESTMENTS!!
Long Term Care insurance
Medicare is a Health Insurance Program for people age 65 or older, some disabled people under age 65, and people of all ages with End-Stage Renal Disease (permanent kidney failure treated with dialysis or a transplant). www.Medicare.gov
A Hospital Insurance- helps cover inpatient care in hospitals. (co-payments)
B Medical Insurance- helps cover medically-necessary services like doctors’ services and outpatient care. (Premium, copayments)
C Medicare Advantage Plans- is another way to get your Medicare benefits. It combines Part A, Part B, and, sometimes, Part D (prescription drug) coverage. Medicare Advantage Plans are managed by private insurance companies approved by Medicare. (premiums, co-payments)
D Medicare Prescription Drug Coverage helps cover prescription drugs. (premiums, copayments)
Medicaid is the United States health program for individuals and families with low incomes and resources.
It is an entitlement program that is jointly funded by the states and federal government, and is managed by the states.
Among the groups of people served by Medicaid are eligible low-income parents, children, seniors, and people with disabilities.
Being poor, or even very poor, does not necessarily qualify an individual for Medicaid.
Eligibility is based on both monthly income and assets.
Application is made through NV Department of Health and Human Services, welfare division
What is considered personal property?
House hold items
Mobile Homes (not on foundation)
Anything and everything that isn’t land!
Do not sell or give away items without
specific court approval.
What is Real Property?
Real property generally encompasses land and homes/buildings on land.
Commonly referred to as Real Estate.
Sale of Real Property/Real Estate
Requires a multi step court approval process
Independent appraisal required
DO NOT SELL OR
TRANSFER TITLE OF
WITHOUT COURT APPROVAL/ORDER
Do not even LIST the property for sale without permission!!!!
Among families it is sometimes common to give financial gifts for care, maintenance, education and support of family members however guardianship changes how or if gifts are made.
Gifts cannot be made without prior approval of the court by order.
Making the gift must not have a negative financial impact to the ward (i.e. leaving them without enough $ for their needs).
Gifts may impact future Medicaid eligibility and should be carefully reviewed with the assistance of an estate planning professional.
Seek legal advice and assistance
There are many decisions a guardian can make with their guardianship authority.
There are some that require additional court approval PRIOR to acting.
Always consult your attorney and/or the court when in doubt!
Legal work done on behalf of a guardianship may be paid from the estate of a ward.
Court approval is required before payment can be made.
Review process with your attorney
Scrutinize attorney fees as you would any other bill
A guardian must keep detailed records of time spent and services provided
Guardian’s fees must be COURT ORDERED, NEVER pay fees without a court order
Get guidance from an attorney or the court about requesting fees
Direct services from guardian
Guardian should not provide services to ward (lawn mowing, care giving, shopping, etc.) and pay themselves without court permission.
Guardian should not charge more than reasonable or standard rate for such services.
Guardian may not be able to be paid for both guardian fees and care giving services
ALL FEES/COSTS MUST BE APPROVED BY COURT
Driving is a very important thing to many people. The need to discontinue driving due to a medical or cognitive issue is a very emotional and powerful decision.
A guardian could be held responsible for the actions of their ward behind the wheel.
Things to consider:
Persons with cognitive deficits are often not able to negotiate the critical thinking skills that are needed to safely drive.
Guardians must take great caution when making a decision to allow an impaired individual to drive. Safety is paramount.
Individuals should be carefully evaluated by their physician, DMV and other appropriate professional entities if they are to continue to drive.
The guardian will need to plan for the individual’s transportation needs if they will no longer be able to drive.
It is not uncommon for an individual with a cognitive disability to wander away, become lost or otherwise be missing. Once you discover someone may be missing you want to act quickly as they may be in harm’s way.
Due to their diagnosis, individuals who have guardians are considered by law enforcement to be “vulnerable” individuals. There is no waiting period required before you can file a police report.
Be prepared to provide photo, last known clothing, diagnosis and other pertinent information to law enforcement.
What other things do I need to think about?
A person is more than just their care needs. Once basic needs are addressed consider the other more personalized needs of an individual that contribute directly to their quality of life and reflect how they may have lived their life prior to incapacity.
Pets and animals are often a significant part of a person’s life. When an individual can no longer care for themselves, they are likely going to be unable to care for their animals. Please give careful consideration to this animal as it is very important to your ward. The well being of the pet can be very distressing to the owner so it is important to plan for the animal’s need as well.
Is it possible to add assistance in the home to care for both the person and the pet?
Does the care facility where they are moving offer pet care? Some do for an additional charge.
Is there a responsible friend or family member who could care for the pet and possibly arrange for visits?
If the choice must be made not to keep the animal, please provide for it in a humane and responsible manner.
Some individuals have purchased their final arrangement plan prior to their death. Sometimes this is called a “pre-need”. Others have not purchased a plan but may have indicated their wishes in a will or other document.
It is the responsibility of the guardian to determine if any arrangements have been made and what the preference of the individual might be.
If no wishes have been previously expressed, the guardian can discuss it with the individual if they are able to participate in the conversation.
In some cases, a guardian may need or want to purchase a burial/cremation plan or policy or set funds aside for these needs.
Please pay careful attention to how to purchase or title bank accounts as they may affect eligibility for certain governmental programs.
Closing a guardianship
Sadly, a guardianship often ends as a result of the death of the person. On other occasions it may end because the individual has regained their ability to make their own decisions.
The guardianship remains open until the court orders the termination of the guardianship. The guardian is obligated to go through the legal steps of getting court approval to close the case.
Tips for Guardianships
Utilize assistance of certified and trusted advisors for technical matters (attorneys, accountants, financial advisors, physicians, care managers, social workers)
Seek a second opinion for medical issues
Seek the emotional support you need (family, friends, professionals, faith community)
Keep a log of what you are doing on behalf of the ward (times, dates, people, issues)
Learn about the diagnoses, medications, prognosis and behaviors of your loved one
Ask questions! You cannot make a sound and informed decision unless you understand an issue
Stay calm and be reasonable when addressing problems
Seek out professional and community resources
Remember, a guardian does not have to know
Nevada Guardianship Association
Self Help Center
Nevada Caregiver Support Center
Private care managers
Family law attorneys
Division for Aging
Bureau of Licensure and Certification
National Guardianship Association
What is a Guardianship?
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.
A guardian is a person, institution, or agency appointed by a court to manage the affairs of a person (the Ward). The guardian may manage person and/or estate matters. Each state has specific laws, which govern guardianship proceedings and the guardian's activities.
Why may a guardianship be necessary?
Sometimes due to incompetency or physical disability, a person loses the ability to make the reasoned decisions necessary, or becomes physically impaired to the point where that person is unable to manage his personal, medical and/or financial affairs. The special legal status afforded by a court ordered guardianship might be required in order to assist this individual in one or more of the following areas:
Intervention and protection to end an ongoing neglectful, exploitative or abusive situation-including self-neglect.
Access to, and control of, income or assets necessary to pay bills, often including the costs of ongoing medical care and/or care giving services.
Providing informed consents for surgeries and medical treatments, hospital and nursing home admissions, care plans, and possible subsequent placements as well as completing applications and signing consents for entitlements such as Medicaid.
Insuring the safety of an incompetent person who may not understand the risks his disability creates for him, both in the community and in the home.
Provide approval for sale or acquisition of certain assets.
The ability to provide general advocacy and protection not afforded by any other legal relationship.
Are there different types of guardianship?
GUARDIANSHIP OF PERSON
Guardian responsible for decisions regarding personal care and needs, placement, safety, and medical decisions
GUARDIANSHIP OF ESTATE
Guardian responsible for securing, safeguarding, and managing finances and assets
GUARDIANSHIP OF PERSON AND ESTATE
Guardian responsible for both personal and financial care
SPECIAL GUARDIANSHIP OF LIMITED CAPACITY
Guardian’s responsibility limited to those areas of demonstrated need
Two or more people share guardianship responsibilities
Guardianship estates with a total value less than $5000.00- Annual accountings are waived unless required by an individual judge.
Summary of the duties of a guardian
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, and meeting all basic needs to ensure the highest quality of life within the limitations of the available services and resources.
A guardian of the estate is responsible for managing the ward's personal finances and assets. The guardian manages the personal and real property of the ward including bank and brokerage accounts. The guardian also manages the ward's assets to meet the ward's needs and to ensure the ward's highest quality of life within the limitations of the available services and resources.
A guardian may be appointed for just the person, just the estate or for both.
Who can act as a guardian and how is a guardian selected?
The judge of the guardianship court in the state where the ward resides selects and appoints the guardian of a ward based upon the laws of the state. In most states a guardian must be over the age of eighteen. A person usually cannot serve as guardian if they have been convicted of a felony or adjudicated incompetent. Nevada has established a statutory preference for family members to serve as guardians. To learn more about who may be a guardian review the Nevada Revised Statutes.
What Are The Keys to a Successful Guardianship?
The question of competency is the fundamental concern that underlies all guardianship issues. Although loss of memory and confusion can effect someone’s competency, loss of reasoning and judgement skills can also be determining factors in evaluating whether someone is competent or not.
“At what point does loss of competency justify taking away an individuals right to make decisions for themselves?” is a complex question that can be decided with the help of physicians and other professionals in the community who deal with this issue on a daily basis. The decision to approach a guardianship should be a team effort between the family (if appropriate), the medical/psychiatric community, and agencies or other parties who deal with the problematic issues presented by the proposed ward.
Once guardianship has been established, preserving the dignity and self-respect of the ward should always be considered in the decisions made by the guardian, and just as important, how those decisions are implemented. The decision making process however, should try to maintain a balance between Safety, Least Restrictive Environment, and Affordability when considering how to meet the needs of the ward, and if possible, the desires of the ward.
Read understand and follow the Standards of Practice and the Code of Ethics of the National Guardianship Association. Ask for help. The members of the Nevada Guardianship Association are dedicated to the goal of achieving excellence in guardianship and are willing to share their experience and knowledge with you.
Summary of the Guardianship Process
Temporary Guardianship - for emergency situations, good only for 10 days, ex parte (without a hearing), requires good faith effort to notify family, requires Physician's Certificate
Extension of Temporary Guardianship
to extend guardianship up to 30 days or to date of general hearing, requires court hearing and notification of famil.
General (Permanent) Guardianship - requires court hearing, notification of spouse, immediate blood relatives, any interested parties, takes typically 4 – 6 weeks for a permanent hearing date
Contested Guardianship - disputed guardianship that is acheduled for a hearing on the court's contested case calendar
See www.washoecourts.com - follow the links to forms to find a guardianship packet with forms and information.
NOTE: A Bond may be necessary, even for a family member, if the liquid assets are substantial. If ordered by the judge, the bond needs to be obtained before the Letters of Guardianship can be filed. The court clerk can then file the original bond with the Letters of Guardianship. 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.