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Guardianships of the Person or Estate

I. Do You Need Assistance With a Guardianship Issue?

Lyons Law Firm is recognized in the legal community for our skill and knowledge in family law matters, including guardianship proceedings. Other legal professionals frequently refer families to our Firm, to represent them regarding Guardianship issues, either obtaining, defending and/or setting aside a guardianship. We investigate the circumstances and provide unbiased feedback regarding the fitness of potential guardians and the needs of the proposed ward.

With more than a decade of family/guardianship law practice on our side, we have experience with cases involving guardianship over both adults (over the age of 18 and referred to as conservatorship or competency hearings in many states) and minors (persons under the age of 18).

When you enlist us to address a guardianship issue, you can be confident that you have chosen a trusted law firm that understands the personal and complex nature of these cases.

A. Establishment of Guardianship

We represent individuals and professional fiduciaries seeking to become guardians. Because Nevada requires that a guardian be a resident of the State of Nevada, oftentimes it is necessary to utilize the services of a professional fiduciary either as the guardian or as a co-guardian, who serves along with a non-Nevada resident. We represent wards seeking legal representation during guardianship proceedings. We represent relatives or other interested persons who are concerned about whether the potential guardian is the best fit for their loved one.

At our law firm, we take a hands-on approach to these matters, which means we start by listening. We will listen and learn about the relationship between the potential guardian and the ward. We will learn about the needs and expectations of the ward, family and other concerned individuals. We will offer careful feedback regarding options and the steps that ought to be considered.

B. Disputes Over Guardianship

While establishment of guardianship is often a straight-forward process, that is not always the case. Disputes can arise. When they do, we will help you understand and assert your rights.

Our staff can represent you in guardianship proceedings involving allegations of exploitation, theft and other issues. When cases become complex, we do not need to send you to more experienced attorneys. We are the more experienced attorneys. Other law firms send their complex cases to us.

II. Frequently Asked Questions

A. What is a guardian?

A guardian is one or more persons appointed by a court of law to manage the personal and/or financial affairs of a person, the ward, who is no longer able to manage his/her own affairs, due to a medical/mental/physical disability, within the guardianship laws of the state.

B. What does a guardian do?

A guardian makes sure that the person under a guardianship (ward) is safe, his assets are safe and that the decisions made are for the ward's best interest and made within the parameters of the ward's finances.

C. Is the guardian responsible for the ward's bills?

The guardian is not personally responsible for the ward's bills. The ward's finances are to pay for the care and needs of the ward. The guardian is responsible to make sure that creditors are aware of the financial limits for payment of any bills that occurred before the guardianship, and to make decisions for the care of the ward within the parameters of the ward's finances. The guardian is also responsible to apply for any entitlements that would assist the ward's estate to help maintain the ward such as SSA, SSI, Medicare, and Medicaid.

D. I live out of state. Can I become a guardian?

A guardian according to Nevada state law must be a resident of Nevada. But a person out of state can be a co-guardian if they pair up with a person in Nevada and are then guardians with the same responsibilities and liabilities.

E. If I do not want to be the guardian, what are my options?

The options are to have another family member or friend be the guardian, to apply to the Public Guardian in the county where your loved one resides, or if the proposed ward has sufficient finances, you can contact a private professional guardian in your area.

F. How much does legal fees for a guardianship cost?

The cost of a guardianship can vary. It often depends on whether or not the guardianship is an emergency (temporary guardianship), which then becomes a general or permanent guardianship, or whether just a general guardianship is sought. Attorney fees can be paid and/or reimbursed from the assets of the ward and if that is the case, are to be court approved before they are paid to the attorney and/or reimbursed to the individual who paid the attorney's fees.

G. How much do professional guardians charge?

Professional guardians include Public Guardians and Private Professional Guardians. Public Guardians are directed by their county commissioners as to what they can charge. Most, if not all, Public Guardians in Nevada can and do charge fees if the ward has assets to pay for fees. If the ward is indigent, fees are usually not charged. For information on what fees are charged by a the Public Guardian in the county in which the guardianship will be petitioned in, please contact that Public Guardian's office.

Private Professional Guardians (PPGs) do charge fees so the ward needs to have assets that can pay for those fees or be converted into funds that will eventually pay for fees. For the most part, when a ward's funds are spent down to the point where there are not funds to pay the PPG, some PPG's keep the case and work it without further compensation if no other funds are found. Fees can differ per PPG or PPG company. It is important to understand that guardian's fees are usually more expensive at the beginning of a guardianship as there are usually many complicated issues to deal with that take many hours to resolve. But as a guardianship continues, most issues become resolved and the guardian's fees are mostly comprised of maintaining the everyday matters that occur.

H. What is the difference between a Guardian and a Power-of-Attorney (POA)?

A POA is a contract between two people-the grantor and the agent-in-fact. The courts are not involved although an attorney can be involved in developing the POA. The agent-in-fact is the person nominated within the POA to act according to the POA's instructions to usually manage the affairs of the grantor. A Durable POA (DPOA) does not become effective until the grantor becomes unable to manage his own affairs due to illness, lack of capacity, or any other reason stated in the POA. At the time this happens, and usually one or more physicians' reports are needed to verify the condition, the agent-in-fact, if willing, then takes over the affairs according to the POA's directives. It is important to understand that a grantor must be competent to sign any type of POA. A grantor should be able to understand the terms of the contract and the ramifications of such a contract.

A Guardianship is a based upon evidence provided to a Judge/Guardianship commission in the form of a petition. The Judge/Guardianship Commissioner reviews the evidence and decides whether the guardianship is necessary within the parameters of the guardianship laws. If the guardianship is granted, the court maintains jurisdiction over the guardianship and requires accounting of both the person and the estate, depending on what type of guardianship is granted. The guardian must conform to the guardianship laws. If a person does not have the capacity to sign a POA, a guardianship is usually the only vehicle available to assist this person.

I. Which is better, a POA or a guardianship?

The POA's are good estate planning documents and can prevent a guardianship in some cases. The POA's can also be a vehicle that a person uses to nominate a guardian if needed in the future as the law gives priority to someone nominated by the proposed ward in writing. The problem with POA's is that there is little to no oversight of the agent-in-fact which can lead to exploitation and abuse of the grantor's person and estate. POA's have often been called a License to Steal. But if the agent-in-fact is trustworthy, a POA can be quite effective. Another area of concern is that some financial institutions do not recognize a POA unless the POA document is one their own documents. Also in the state of Nevada, a POA cannot be used to voluntarily admit a person into a psychiatric unit. But again, once a physician has stated that his patient has lost capacity, or there have been obvious signs of dementia or other issues affecting the mental state of a person, a POA might not be the best vehicle to create at that time to assist that person.

A guardianship carries more weight than a POA due to the fact that it is a court order. But a guardianship is usually seen as the last resort in assisting a person in that it takes away most of the civil rights of an individual. It is more expensive due to the court costs and possible fees of an attorney or private professional guardian. But due to the presence of the court, there is oversight and defined laws that make guardianships more accountable and potentially less abusive and/or exploitive. Sometimes a guardianship (with a court order) is the only vehicle available to do what needs to be done to assist an individual.

J. Is there any way my loved one can stay in her house?

If a person has the finances to pay for the care needed in order to keep her in her home, then the guardian needs to decide whether or not living in the home is in the person's best interest. Unfortunately, most decisions are based upon the financial feasibility of the outcome. But if she can afford staying in the home and she does better by living in the home, then the guardian should do whatever she can to maintain the ward in the home. It is good to understand however, that staying in the home is not always the best situation due to various reasons. It is always helpful to get outside evaluations to help you determine whether or not the home is the best living arrangement for your loved ones.

K. What happens if the proposed ward does not want a guardianship?

Most people who need a guardianship have lost the ability to understand that they have a problem and need help, so it is not surprising that a person would not understand the need for a guardianship for himself and want to fight it. Sometimes family or whoever is petitioning for the guardianship, can work with the proposed ward. So even though the proposed ward may not be pleased about it, he is able to work through his displeasure and the guardianship will be granted. But if that does not happen, the proposed ward does have the right to contest the guardianship. In that case, the judge will put the guardianship hearing on the contested calendar. The contested calendar is where extra time given to the hearing, which is an actual trial without a jury. This time is set-aside in order for the proposed ward to prove why he does not need a guardian and where the petitioner, usually the proposed guardian, is to prove why the proposed ward needs a guardian. Contested cases can be extremely expensive, so it is best if the parties can come to some type of settlement before the trial. But sometimes that is not possible and the contested hearing takes place.



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